Petitioner, a 31-year-old college graduate who had attended the
first year of law school and had studied criminal law, was
convicted in a state court of murder and sentenced to death, and
his conviction was affirmed by the State Supreme Court. He claims
that his conviction violated the Due Process Clause of the
Fourteenth Amendment, because (1) the confession admitted in
evidence over his objection was coerced, and (2), even if it was
voluntary, it occurred while he was without counsel because of
denials of his requests for an opportunity to obtain counsel.
During the 14 hours between his arrest and confession, he asked
several times for an opportunity to get counsel, but this was
denied until after he had confessed. Meanwhile, he refused to take
a lie detector test, refused to answer many questions, and showed
full awareness of his right to be silent. He was advised by a
police lieutenant that he need not answer any questions he did not
wish to answer. The questioning by several police officers was
intermittent, and petitioner was given coffee, milk, and a
sandwich, and allowed to smoke whenever he liked.
Held: the judgment is affirmed. Pp.
357 U. S.
431-441.
1. On the record, this Court is unable to say that petitioner's
confession was anything other than voluntary. Pp.
357 U. S.
434-438.
2. Denial by state officials of the request of an accused for an
opportunity to engage counsel at any stage of the pretrial
proceedings in a criminal case violates due process if he is so
prejudiced thereby as to make his subsequent trial lacking in basic
fairness, but the record in this case does not show that petitioner
was so prejudiced. Pp.
357 U. S.
438-441.
47 Cal. 2d
348, 303 P.2d 753, affirmed.
Page 357 U. S. 434
MR. JUSTICE CLARK delivered the opinion of the Court.
Petitioner, under sentence of death for the murder of his
paramour, claims that his conviction in a California court violates
Fourteenth Amendment due process of law because (1) the confession
admitted into evidence over his objection had been coerced from him
by state authorities, and (2) even if his confession was voluntary,
it occurred while he was without counsel because of the previous
denial of his request therefor. The Supreme Court of California
affirmed the conviction.
47 Cal. 2d
348, 303 P.2d 753. Certiorari was granted because of the
serious due process implications that attend state denial of a
request to employ an attorney. 354 U.S. 908 (1957). [
Footnote 1] We conclude, however, that no
violation of constitutional right has occurred.
The record here clearly reveals that, prior to petitioner's
confession, he asked for and was denied opportunity to call his
lawyer. We first consider that denial in connection with
petitioner's contention that his subsequent confession was
involuntary in nature.
It is well established that the Fourteenth Amendment prohibits
use of coerced confessions in state prosecutions.
E.g., Brown
v. Mississippi, 297 U. S. 278
(1936);
Watts v.
Page 357 U. S. 435
Indiana, 338 U. S. 49
(1949);
Fikes v. Alabama, 352 U.
S. 191 (1957). As in
Thomas v. Arizona,
356 U. S. 390, and
Payne v. Arkansas, 356 U. S. 560, we
consider the undisputed facts in the record to ascertain whether
the confession resulted from police coercion or the exercise of
petitioner's own free will.
The victim's son discovered her body the morning of July 5,
1955, stabbed and strangled to death in the bedroom of her Los
Angeles home. She was last known to be alive about 1 a.m. the same
day, when she talked with a friend by telephone.
Petitioner was arrested in his apartment at 1:30 that afternoon,
and subsequently was charged with the murder. He was then 31 years
of age, a college graduate who had attended the first year of law
school. While going to law school, he had been a house boy in the
home of the victim. That position led to an illicit relationship
with her, which she had attempted several times to terminate in the
month preceding her death. The week of her death, after telling
petitioner they had been found out, she had requested, and he had
agreed, that he would never see her again.
Despite this understanding, he returned to her house late in the
afternoon of July 4. Finding no one at home, he hid nearby for the
ostensible purpose of discovering who was "threatening" her. From
his hiding place, he watched the victim return home with an escort
around midnight. Shortly thereafter, he saw the escort leave, and
watched the victim talk on the telephone. He claims that he then
left the vicinity to return to his apartment, never having entered
the house that evening.
At the time of his arrest, petitioner was questioned about
scratches that were evident on his neck and hands. He attributed
the former to shaving and the latter to a traffic mishap on his way
to the beach on July 4. However, he refused to reveal where the
accident occurred.
Page 357 U. S. 436
After his apartment was searched, petitioner was taken to the
Los Angeles Police Station, where he was photographed and asked to
take a lie detector test. He refused to submit to the test, and
indicated that he wanted to call an attorney. At no time, however,
does it appear that petitioner was offered the use of a telephone.
Aside from sporadic questioning at his apartment, petitioner was
interrogated for the first time from 8:30-9:30 p.m., the
questioning being conducted by four officers and centering around
his refusal of the lie detector test. During this time, he asked
for an opportunity to get a lawyer, naming a specific attorney whom
he thought might represent him, but was told that "after [the]
investigation was concluded, he could call an attorney."
At 9:30 p.m., petitioner was transferred to the West Los Angeles
Police Station, where five officers questioned him from 11 p.m.
until shortly after midnight. He then was formally "booked," and
given a physical examination by a police physician. The third and
last questioning period was conducted by the same five men from
approximately 1-2 a.m. July 6. For the next hour, petitioner wrote
and signed a detailed confession of the murder. Afterward, he was
taken to the victim's home to reenact the crime. At 5 a.m., he was
put in jail and permitted to sleep.
That afternoon, a full day after his arrest, he was taken to the
office of the Los Angeles County District Attorney to orally repeat
the written confession. Petitioner balked at doing so, and again
asked that his attorney be called. Thereupon, the District Attorney
placed the call for him and listened to the conversation while
petitioner talked on an extension phone with the attorney. Neither
petitioner nor his attorney was aware that a tape recording was
being made of everything that transpired in the office. The
District Attorney interrupted at one point to deny that petitioner
was forced to answer police questions,
Page 357 U. S. 437
and later to advise that the most convenient time for the
attorney to see petitioner would be at 7 p.m. back at the West Los
Angeles Police Station. After the phone call, petitioner was
returned to jail to meet his attorney that evening. From that time
forward, through both arraignment and trial, he was represented by
his own counsel.
In the 14 hours between his arrest and confession, petitioner
was given coffee and allowed to smoke whenever he liked. He also
was given milk and a sandwich a few hours after his arrest. Before
being transferred to the West Los Angeles Police Station, he was
advised by a police lieutenant, "You don't have to say anything
that you don't want to," and he in fact refused to answer many
questions both before and after the transfer. At such times, he
simply stated he "would rather not answer, or rather not make a
statement about that."
The bare fact of police "detention and police examination in
private of one in official state custody" does not render
involuntary a confession by the one so detained.
Brown v.
Allen, 344 U. S. 443,
344 U. S. 476
(1953). Neither does an admonition by the police to tell the truth,
Spraf v. United States, 156 U. S. 51,
156 U. S. 55-56
(1895), nor the failure of state authorities to comply with local
statutes requiring that an accused promptly be brought before a
magistrate. [
Footnote 2]
Fikes v. Alabama, 352 U. S. 191
(1957).
Petitioner's claim of coercion, then, depends almost entirely on
denial of his request to contact counsel. [
Footnote 3] This
Page 357 U. S. 438
Court has not previously had occasion to determine the character
of a confession obtained after such a denial. But we have held that
confessions made by indigent defendants prior to state appointment
of counsel are not thereby rendered involuntary, even in
prosecutions where conviction without counsel would violate due
process under the Fourteenth Amendment.
Brown v. Allen,
344 U. S. 443,
344 U. S.
474-476 (1953);
Stroble v. California,
343 U. S. 181,
343 U. S.
196-198 (1952);
Gallegos v. Nebraska,
342 U. S. 55,
342 U. S. 64-68
(1951). To be sure, coercion seems more likely to result from state
denial of a specific request for opportunity to engage counsel than
it does from state failure to appoint counsel immediately upon
arrest. That greater possibility, however, is not decisive. It is
negated here by petitioner's age, intelligence, and education.
While in law school, he had studied criminal law; indeed, when
asked to take the lie detector test, he informed the operator that
the results of such a test would not be admissible at trial absent
a stipulation by the parties. Supplementing that background is the
police statement to petitioner well before his confession that he
did not have to answer questions. Moreover, the manner of his
refusals to answer indicates full awareness of the right to be
silent. On this record, we are unable to say that petitioner's
confession was anything other than voluntary.
We turn now to the contention that, even if the confession be
voluntary, its use violates due process because it was obtained
after denial of petitioner's request to contact his attorney.
Petitioner reaches this position by reasoning first that he has
been denied a due process right
Page 357 U. S. 439
to representation and advice from his attorney, [
Footnote 4] and secondly that the use of any
confession obtained from him during the time of such a denial would
itself be barred by the Due Process Clause, even though freely
made. We think petitioner fails to sustain the first point, and
therefore we do not reach the second.
The right of an accused to counsel for his defense, though not
firmly fixed in our common law heritage, is of significant
importance to the preservation of liberty in this country.
See 1 Cooley's Constitutional Limitations (8th ed. 1927)
696-700; 2 Story on the Constitution (4th ed. 1893) § 1794. That
right, secured in state prosecutions by the Fourteenth Amendment
guaranty of due process, includes not only the right to have an
attorney appointed by the State in certain cases, but also the
right of an accused to "a fair opportunity to secure counsel of his
own choice."
Powell v. Alabama, 287 U. S.
45,
287 U. S. 53
(1932);
Chandler v. Fretag, 348 U. S.
3 (1954).
Under these principles, state refusal of a request to engage
counsel violates due process not only if the accused is deprived of
counsel at trial on the merits,
Chandler v. Fretag, supra,
but also if he is deprived of counsel for any part of the pretrial
proceedings, provided that he is so prejudiced thereby as to infect
his subsequent trial with an absence of "that fundamental fairness
essential to the very concept of justice."
Lisenba v. People of
California, 314 U. S. 219,
314 U. S. 236
(1941).
Cf. Moore v.
Michigan, 355 U.S.
Page 357 U. S. 440
155,
355 U. S. 160
(1957). The latter determination necessarily depends upon all the
circumstances of the case.
In
House v. Mayo, 324 U. S. 42
(1945), an uneducated man in his twenties, a stranger to the area,
was brought before a court to be sentenced on two convictions
previously returned against him. He was there presented for the
first time with a burglary information filed by the State, asked
for and was denied opportunity to engage counsel, and finally
pleaded guilty to the information, thereby obviating any necessity
for trial of the charge on the merits. We held that a due process
right to counsel was denied.
In contrast, the sum total of the circumstances here during the
time petitioner was without counsel is a voluntary confession by a
college-educated man with law school training who knew of his right
to keep silent. Such facts, while perhaps a violation of California
law, [
Footnote 5] do not
approach the prejudicial impact in
House v. Mayo, supra,
and do not show petitioner to have been so "taken advantage of,"
Townsend v. Burke, 334 U. S. 736,
334 U. S. 739
(1948), as to violate due process of law.
Petitioner, however, contends that a different rule should
determine whether there has been a violation of right to counsel.
He would have every state denial of a request to contact counsel be
an infringement of the constitutional right
without regard to
the circumstances of the case. In the absence of any
confession, plea or waiver -- or other event prejudicial to the
accused -- such a doctrine would create a complete anomaly, since
nothing would remain that could be corrected on new trial.
Page 357 U. S. 441
Refusal by state authorities of the request to contact counsel
necessarily would then be an absolute bar to conviction. On the
other hand, where an event has occurred while the accused was
without his counsel which fairly promises to adversely affect his
chances, the doctrine suggested by petitioner would have a lesser,
but still devastating, effect on enforcement of criminal law, for
it would effectively preclude police questioning -- fair as well as
unfair -- until the accused was afforded opportunity to call his
attorney. Due process, a concept "less rigid and more fluid than
those envisaged in other specific and particular provisions of the
Bill of Rights,"
Betts v. Brady, 316 U.
S. 455, 462 (1942), demands no such rule. [
Footnote 6]
Affirmed.
[
Footnote 1]
The grant of certiorari was limited to two questions:
"1. Was the defendant denied due process of law by the refusal
of the investigation officers to allow him to consult with an
attorney upon demand being made to do so while he was in
custody?"
"2. Was the defendant denied due process of law by the admission
into evidence of a confession which was taken from him while in
custody and after he had been in such custody for fourteen hours
and had not been allowed to consult with his attorney?"
[
Footnote 2]
Section 849 of the California Penal Code provides that a person
arrested without a warrant must be brought before the nearest or
most accessible magistrate in the county of arrest "without
unnecessary delay." Cal.Penal Code, 1956, § 849.
[
Footnote 3]
Even if within the scope of the limited grant of certiorari,
claims of physical violence -- "third degree" methods -- were
denied by witnesses for the State, and hence are not part of the
undisputed portions of the record which we consider here. The
ambiguous reply by one police officer, "I don't think we hurt you,"
in response to petitioner's assertion in the District Attorney's
office that the officer struck him, cannot alter the contradicted
state of the evidence when the same officer categorically denied
the claim on cross-examination at the trial.
[
Footnote 4]
At times petitioner appears to urge "a rule" barring use of a
voluntary confession obtained after state denial of a request to
contact counsel regardless of whether any violation of a due
process right to counsel occurred. That contention is simply an
appeal to the supervisory power of this Court over the
administration of justice in the federal courts.
See McNabb v.
United States, 318 U. S. 332
(1943), which, significantly enough, petitioner cites. The short
answer to such a contention here is that this conviction was had in
a state, not a federal, court.
[
Footnote 5]
Section 825 of the California Penal Code provides that, after an
arrest, an attorney "may at the request of the prisoner or any
relative of such prisoner, visit the person so arrested." Any
officer in charge of the prisoner who wilfully refuses to let the
attorney see the prisoner is made guilty of a misdemeanor.
Cal.Penal Code, 1956, § 825.
[
Footnote 6]
It is suggested that this decision extends the rule of
Betts
v. Brady, 316 U. S. 455
(1942), to a capital case, thereby overruling, I should suppose,
Powell v. Alabama, 287 U. S. 45, and
related cases. But those decisions involve another problem, trial
and conviction of the accused without counsel after state refusal
to appoint an attorney for him. What due process requires in one
situation may not be required in another, and this, of course,
because the least change of circumstances may provide or eliminate
fundamental fairness. The ruling here that due process does not
always require immediate honoring of a request to obtain one's own
counsel in the hours after arrest hardly means that the same
concept of fundamental fairness does not require state appointment
of counsel before an accused is put to trial, convicted and
sentenced to death.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACK and MR. JUSTICE BRENNAN concur, dissenting.
When petitioner was first arrested, and before any real
interrogation took place, he asked that his attorney be
present.
"I had no objection to talking with them about whatever they had
to talk about, but . . . I wanted counsel with me. . . . I wanted
an attorney with me before I would talk with them. "
Page 357 U. S. 442
That was petitioner's testimony, and it is verified by the
testimony of Sergeant Gotch of the police.
"A. I stated to him that, after our investigation was concluded,
he could call an attorney, and if he didn't have funds to hire an
attorney, when he went to Court, a public defender would be
assigned to handle his case."
"He then stated that he had a friend who had been an instructor
at Pepperdine College that would probably handle the case for him.
I asked him who the name was, and he said it was a man by the name
of Simpson, who lived in Long Beach."
"Q. He asked you if he could call an attorney at that time, and
you told him that he could call after your investigation was
completed, is that right?"
"A. I told him, after I was through with the investigation, he
could make a call."
This demand for an attorney was made over and again prior to the
time a confession was extracted from the accused. Its denial was,
in my view, a denial of that due process of law guaranteed the
citizen by the Fourteenth Amendment.
The Court finds no prejudice from the denial of the right to
consult counsel, and it bases that finding on the age,
intelligence, and education of petitioner. But it was said in
Glasser v. United States, 315 U. S.
60,
315 U. S.
76,
"The right to have the assistance of counsel is too fundamental
and absolute to allow courts to indulge in nice calculations as to
the amount of prejudice arising from its denial."
That was a federal prosecution. But what is true of the need for
counsel is federal case is equally true in a state case.
Betts v. Brady, 316 U. S. 455,
held that in a state criminal trial the request of the accused for
counsel can be denied and a judgment of conviction sustained as not
in
Page 357 U. S. 443
violation of due process, where the offense is not a capital
one,
cf. Williams v. Kaiser, 323 U.
S. 471, and the Court, on review, determines there was
no fundamental unfairness resulting from the denial of counsel. The
rule of
Betts v. Brady, which never applied to a capital
case,
see Powell v. Alabama, 287 U. S.
45, is now made to do so. Assuming that
Betts v.
Brady was properly decided, there is no basis in reason for
extending it to the denial of a request for counsel when the
accused is arrested on a capital charge.
The Court properly concedes that the right to counsel extends to
pretrial proceedings as well as to the trial itself. The need is as
great then as at any time. The right to have counsel at the
pretrial stage is often necessary to give meaning and protection to
the right to be heard at the trial itself.
See Chandler v.
Fretag, 348 U. S. 3,
348 U. S. 10. It
may also be necessary as a restraint on the coercive power of the
police. The pattern of the third degree runs through our cases: a
lone suspect unrepresented by counsel against whom the full
coercive force of a secret inquisition is brought to bear.
See
Lisenba v. California, 314 U. S. 219;
Ashcraft v. Tennessee, 322 U. S. 143;
Haley v. Ohio, 332 U. S. 596;
Watts v. Indiana, 338 U. S. 49;
Leyra v. Denno, 347 U. S. 556. The
third degree flourishes only in secrecy. One who feels the need of
a lawyer and asks for one is asking for some protection which the
law can give him against a coerced confession. No matter what care
is taken, innocent people are convicted of crimes they did not
commit,
see Borchard, Convicting the Innocent (1932);
Frank and Frank, Not Guilty (1957). We should not lower the
barriers and deny the accused any procedural safeguard against
coercive police practices. [
Footnote
2/1] The trial of the issue of coercion is
Page 357 U. S. 444
seldom helpful. Law officers usually testify one way, the
accused another. The citizen who has been the victim of these
secret inquisitions has little chance to prove coercion. The
mischief and abuse of the third degree will continue as long as an
accused can be denied the right to counsel at this the most
critical period of his ordeal. [
Footnote 2/2] For what takes
Page 357 U. S. 445
place in the secret confines of the police station may be more
critical than what takes place at the trial.
"If at any time, from the time of his arrest to final
determination of his guilt or innocence, an accused really needs
the help of an attorney, it is in the pretrial period. . . .
Indeed, the pretrial period is so full of hazards for the accused
that, if unaided by competent legal advice, he may lose any
legitimate
Page 357 U. S. 446
defense he may have long before he is arraigned and put on
trial."
Note, Criminal Procedure -- Right to Counsel Prior to Trial, 44
Ky.L.J. 103-104.
Or, as stated by a Committee headed by Prof. Zechariah Chafee,
"A person accused of crime needs a lawyer right after his arrest
probably more than at any other time." [
Footnote 2/3]
The Court speaks of the education of this petitioner and his
ability to take care of himself. In an opinion written by Mr.
Justice Sutherland, the Court said,
"Even the intelligent and educated layman has small and
sometimes no skill in the science of law. . . . He requires the
guiding hand of counsel at every step in the proceedings against
him."
Powell Alabama, 287 U. S. 45,
287 U. S. 69.
Mr. Justice Sutherland spoke of the trial itself. But what is true
of the trial is true of the preparation for trial, and of the
period commencing with the arrest of the accused. No matter how
well educated, and how well trained in the law an accused may be,
he is sorely in need of legal advice once he is arrested for an
offense that may exact his life.
Page 357 U. S. 447
The innocent as well as the guilty may be caught in a web of
circumstantial evidence that is difficult to break. A man may be
guilty of indiscretions, but not of the crime. He may be implicated
by ambiguous circumstances difficult to explain away. He
desperately needs a lawyer to help extricate him if he's innocent.
He has the right to receive the benefit of the advice of his own
counsel at the trial, as we held in
Chandler v. Fretag,
348 U. S. 3,
348 U. S. 9. That
same right should extend to the pretrial stage.
The need of a lawyer in the pretrial investigation, if the
constitutional rights of the accused are to be preserved, was
stated by MR. JUSTICE BLACK, dissenting, in
In re Groban,
352 U. S. 330,
352 U. S.
340-343:
"The witness has no effective way to challenge his
interrogator's testimony as to what was said and done at the secret
inquisition. The officer's version frequently may reflect an
inaccurate understanding of an accused's statements or, on
occasion, may be deliberately distorted or falsified. While the
accused may protest against these misrepresentations, his
protestations will normally be in vain. This is particularly true
when the officer is accompanied by several of his assistants and
they all vouch for his story. But when the public, or even the
suspect's counsel, is present, the hazards to the suspect from the
officer's misunderstanding or twisting of his statements or conduct
are greatly reduced."
"The presence of legal counsel or any person who is not an
executive officer bent on enforcing the law provides still another
protection to the witness. Behind closed doors, he can be coerced,
tricked, or confused by officers into making statements which may
be untrue or may hide the truth by creating misleading impressions.
While the witness is in the custody of the interrogators, as a
practical matter, he
Page 357 U. S. 448
is subject to their uncontrolled will. . . . Nothing would be
better calculated to prevent misuse of official power in dealing
with a witness or suspect than the scrutiny of his lawyer or
friends, or even of disinterested bystanders."
The demands of our civilization expressed in the Due Process
Clause require that the accused who wants a counsel should have one
at any time after the moment of arrest. [
Footnote 2/4]
[
Footnote 2/1]
The use of techniques that make man admit crimes they did not
commit and embrace ideas they oppose is told in Communist
Interrogation, Indoctrination and Exploitation of American Military
and Civilian Prisoners, S.Rep. No. 2832, 84th Cong., 2d Sess.
Prof. Sam Bass Warner wrote in How Can The Third Degree Be
Eliminated? 1 Bill of Rights Rev. 24, 25 (1940):
"Everywhere the formula for successful detective work is that
laid down by former Captain Fiaschetti of the New York City police:
'You get a bit of information, and then you grab the suspect and
break him down. That is how detective work is done -- a general
formula.'"
See Report of Committee on Lawless Enforcement of Law,
Am.Bar Assn., 1 Am.J.Police Sci. 575; The Third Degree, 4 Report to
the National Commission on Law Observance and Enforcement (1931)
13; The Report of the President's Committee on Civil Rights (1947)
25
et seq.
[
Footnote 2/2]
Dean Roscoe Pound wrote in 1934 as follows about this
problem:
"In the United States, the feeling of police and prosecutors
that they ought to be able to interrogate suspected persons long
ago led to a systematic development of extralegal or downright
illegal examinations by officials, with every external appearance
of legality. These examinations have become so much a matter of
course that we may read in every morning paper how police or
prosecutor examined (the word usually chosen is 'grilled') so and
so for anywhere from ten to forty-eight or more consecutive hours,
going at him in relays to wear him out and break him down. They are
now taken to be the established practice. Prosecutors often conduct
them with a pretence of authority when those subjected to them are
ignorant, unadvised as to their rights, insignificant, or without
means of employing counsel. Indeed, so bold have those who resort
to those practices become that we now read in the newspapers how
this man or that was held 'incommunicado' in a police station or
jail while the grilling process was going on. . . ."
"
* * * *"
"No amount of thundering against the third degree and its
derivatives and analogues will achieve anything. The temper of the
public will not permit of strengthening the constitutional
safeguards of the accused. For some time to come, the tendency is
likely to be in the opposite direction. Indeed, a feeling that the
public are with them is largely behind the boldness with which
highhanded, secret, extralegal interrogations of persons held
incommunicado are constantly carried on."
"My proposition is that the remedy for the third degree and its
derivatives is to satisfy the reasonable demands of the police and
the prosecutors for an interrogation of suspected persons, and thus
do away with the excuse for extralegal questionings."
"I submit that there should be express provision for a legal
examination of suspected or accused persons before a magistrate;
that those to be examined should be allowed to have counsel present
to safeguard their rights; that provision should be made for taking
down the evidence so as to guarantee accuracy. As things are, it is
not the least of the abuses of the system of extralegal
interrogation that there is a constant conflict of evidence as to
what the accused said and as to the circumstances under which he
said or was coerced into saying it."
24 J.Crim.L. & C. 1014, 1016, 1017.
As recently stated by T. B. Smith, a distinguished Scottish
lawyer:
"The opportunities for exerting pressure on a suspect to confess
are greatest when there is no judicial supervision, no legal
representation, and no public scrutiny. If an accused at his trial
seeks to retract a confession allegedly extorted by third-degree
methods, his word will stand alone against several police witnesses
who may be expected to deny improper pressure. It is well known
that, in the totalitarian states, extrajudicial pressure by
brainwashing can eventually convince even the accused that he has
committed the most improbable offenses, but when a confession has
been extorted by less through third-degree methods, it is likely to
be retracted at the trial. The accused may nevertheless by then
have damaged his position irreparably."
32 Tulane L.Rev. 349, 354.
[
Footnote 2/3]
See Chafee, Documents on Fundamental Human Rights,
Pamphlets 1-3 (1951-1952), p. 541.
The Scots view was recently stated by the Lord Justice General
in
Chalmers v. H. M. Advocate, 1954 Sess.Cas. 66, 78:
"The theory of our law is that, at the stage of initial
investigation, the police may question anyone with a view to
acquiring information which may lead to the detection of the
criminal, but that, when the stage has been reached at which
suspicion, or more than suspicion, has in their view centred upon
some person as the likely perpetrator of the crime, further
interrogation of that person becomes very dangerous, and, if
carried too far,
e.g., to the point of extracting a
confession by what amounts to cross-examination, the evidence of
that confession will almost certainly be excluded. Once the accused
has been apprehended and charged, he has the statutory right to a
private interview with a solicitor, and to be brought before a
magistrate with all convenient speed, so that he may, if so
advised, emit a declaration in presence of his solicitor under
conditions which safeguard him against prejudice."
[
Footnote 2/4]
Quite a few of the States provide that procedural safeguard
against coercive police practices. The California Penal Code, §
825, provides:
"The defendant must in all cases be taken before the magistrate
without unnecessary delay, and, in any event, within two days after
his arrest, excluding Sundays and holidays; and after such arrest,
any attorney at law entitled to practice in the courts of record of
California, may at the request of the prisoner or any relative of
such prisoner, visit the person so arrested. Any officer having
charge of the prisoner so arrested who wilfully refuses or neglects
to allow such attorney to visit a prisoner is guilty of a
misdemeanor. Any officer having a prisoner in charge, who refuses
to allow any attorney to visit the prisoner when proper application
is made therefor shall forfeit and pay to the party aggrieved the
sum of five hundred dollars, to be recovered by action in any court
of competent jurisdiction."
Another type of statute is that contained in Kan.Gan.Stat.,
1949, § 62-1304a, which provides:
"That any person held in restraint of his liberty pending trial
or held for investigation in any jail or other place of confinement
in this state, shall be permitted upon request to immediately
confer privately with an attorney of his choice in the same room
with such attorney and without any barriers between such person and
his attorney, and without any listening in or recording
devices."
For statutes similar to the Kansas Act,
see
Colo.Rev.Stat.Ann., 1953 (Cum.Supp.1957), c. 39-1-1; Ill.Rev.Stat.,
1955, c. 38, § 449.1; Vernon's Ann.Mo.Stat., 1953, § 544.170;
Mont.Rev.Codes, 1947, § 93-2117; N.H.Rev.Stat.Ann., 1955, c.
594:16; N.C.Gen.Stat., 1953 (Cum.Supp.1957), § 15-47; Page's Ohio
Rev.Code Ann., 1954, § 2935.16.
See also § 37 of the
A.L.I. Model Code of Criminal Procedure.