Petitioners' confessions were offered in evidence by the State
in their trial for felony murder, at which they were found guilty
and sentenced to death. Their convictions became final six years
ago. On collateral attack, petitioners now argue that the
confessions were inadmissible under
Escobedo v. Illinois,
378 U. S. 478. The
New Jersey Supreme Court held that
Escobedo did not apply
retroactively.
Held:
1. Neither
Escobedo nor
Miranda v. Arizona,
ante p.
384 U. S. 436,
which set down additional guidelines, is to be applied
retroactively. Pp.
384 U. S.
726-735.
(a)
Linkletter v. Walker, 381 U.
S. 618, and
Tehan v. Shott, 382 U.
S. 406, established the principle that, in criminal
litigation concerning constitutional claims, the Court may make a
rule of criminal procedure prospective, basing its determination
upon the purpose of the new standards, the reliance placed on the
prior decisions on the subject, and the effect on the
administration of justice of a retroactive application of the rule.
Pp.
384 U. S.
726-727.
(b) The choice between retroactivity and nonretroactivity does
not depend on the value of the constitutional guarantee involved or
the provision of the Constitution on which the dictate is based,
but takes account of the extent to which other safeguards are
available to protect the integrity of the truth-determining process
at trial. Pp.
384 U. S.
728-729.
(c) While
Escobedo and
Miranda guard against
the possibility of unreliable statements in cases of in-custody
interrogation, they cover situations where the danger is not
necessarily as great as when the accused is subjected to overt and
obvious coercion. P.
384 U. S.
730.
(d) For persons whose trials have already been completed, the
case law on coerced confessions is available if the procedural
prerequisites for direct or collateral attack are met. P.
384 U. S.
730.
(e) Law enforcement agencies fairly relied on prior cases, now
no longer binding, in obtaining incriminating statements during the
years preceding
Escobedo and
Miranda, and
retroactive
Page 384 U. S. 720
application of those cases would seriously disrupt
administration of the criminal laws. P.
384 U. S.
731.
(f)
Escobedo and
Miranda should apply only to
case where the trials have commenced after the decision were
announced, June 22, 1964, and June 13, 1966, respectively. Pp.
384 U. S.
733-735.
2. The other grounds asserted by petitioners which may be tested
by this review are without merit; their contentions relating to the
voluntariness of their confessions are beyond the scope of the
review in this proceeding. P.
384 U. S.
735.
43 N.J. 572, 20 A.2d 737, affirmed.
Page 384 U. S. 721
Opinion of the Court by MR. CHIEF JUSTICE WARREN, announced by
MR. JUSTICE BRENNAN
In this case, we are called upon to determine whether
Escobedo v. Illinois, 378 U. S. 478
(1964), and
Miranda v. Arizona, ante, p.
384 U. S. 436,
should be applied retroactively. We hold that
Escobedo
affects only those cases in which the trial began after June 22,
1964, the date of that decision. We hold further that
Miranda applies only to cases in which the trial began
after the date of our decision one week ago. The convictions
assailed here were obtained at trials completed long before
Escobedo and
Miranda were rendered, and the
rulings in those cases are therefore inapplicable to the present
proceeding. Petitioners have also asked us to overturn their
convictions on a number of other grounds, but we find these
contentions to be without merit, and consequently we affirm the
decision below.
Petitioner Cassidy was taken into custody in Camden, New Jersey,
at 4 a.m. on January 29, 1958, for felony murder. The police took
him to detective headquarters and interrogated him in a systematic
fashion for several hours. At 9 a.m., he was brought before the
chief detective, two other police officers, and a court
stenographer.
Page 384 U. S. 722
The chief detective introduced the persons present, informed
Cassidy of the possible charges against him, gave him the warning
set forth in the margin, [
Footnote
1] concluded that he understood the warning, and obtained his
consent to be questioned. Cassidy was then interrogated until 10:25
a.m., and made a partial confession to felony murder. The
stenographer recorded this interrogation and read it back to
Cassidy for his acknowledgment. Police officers then took him to
another part of the building and apparently questioned him further.
At 12:15 p.m., he was brought back to the chief detective's office
for another half hour of recorded interrogation. Under
circumstances similar to those already described, Cassidy amended
his confession to add vital incriminating details. For the next 11
hours, he was held in a detention room, and may have been subjected
to further questioning. At 11:40 p.m., the police returned him to
the chief detective's office for a final brief round of recorded
interrogation. Taken together, Cassidy's three formal statements
added up to a complete confession of felony murder, and they were
later introduced against him at his trial for that crime.
While the present collateral proceeding was pending following
our decision in
Escobedo, Cassidy filed affidavits in the
New Jersey Supreme Court which detailed for the first time certain
supposed circumstances of his confession. In his own affidavit, he
claimed that, on at least five separate occasions during his
interrogation, he asked for permission to consult a lawyer or to
contact relatives. The police allegedly either ignored these
requests
Page 384 U. S. 723
or told him that he could not communicate with others until his
statement was completed. Cassidy also produced affidavits from his
mother, his uncle, and his aunt, claiming that, during this period,
they called the detective headquarters at least three times, and
once appeared there in person, seeking information about Cassidy
and an opportunity to speak with him. Their efforts allegedly were
thwarted by the police. These belated claims were left
uncontroverted by the State, and were accepted as true by the court
below for purposes of the
Escobedo issue.
The police took petitioner Johnson into custody in Newark, New
Jersey, at 5 p.m. on January 29, 1958, for the same crime as
Cassidy. He was taken to detective headquarters, and was booked.
Later in the evening, the police brought him before a magistrate
for a brief preliminary hearing. The record is unclear as to what
transpired there. Both before and after the appearance in court, he
was questioned in a routine manner. At 2 a.m., the police drove
Johnson by auto to Camden, the scene of the homicide, 80 miles from
Newark. During the auto ride, he was again interrogated about the
crime. Upon arrival in Camden at about 4:30 a.m., the police took
him directly to detective headquarters and brought him before the
chief detective, three other police officers, and a court
stenographer. As in Cassidy's case, Johnson was introduced to the
persons present, informed of the possible charges against him, and
given the same warning already set forth. He stated that he
understood the warning and was willing to be questioned under those
conditions. The police then interrogated him until 6:20 a.m., a
period of about one and one-half hours. During the course of the
questioning, he made a full confession to the crime of felony
murder. This interrogation was recorded by the stenographer and
read back to Johnson for his acknowledgment.
Page 384 U. S. 724
Like Cassidy, Johnson filed affidavits in the New Jersey Supreme
Court in this collateral proceeding following our decision in
Escobedo, detailing for the first time certain supposed
circumstances of his confession. In his own affidavit, he claimed
that, at four separate points during the period described above, he
asked for permission to consult a lawyer or to contact relatives so
that they could obtain a lawyer for him. As in Cassidy's case, the
police allegedly either ignored these requests or told him that he
could not communicate with others until he had given a statement.
Johnson also produced affidavits from his mother and his
girlfriend, claiming that, on three occasions after the homicide
and prior to the confession, they called detective headquarters or
went there in person, seeking information about Johnson and an
opportunity to speak with him. Their efforts allegedly were
rebuffed by the police. These belated claims, like Cassidy's, were
left uncontroverted by the State, and were accepted as true by the
court below for resolution of the
Escobedo issue.
The confessions of Johnson and Cassidy were offered in evidence
by the State at their joint trial for felony murder. The judge held
a hearing out of the presence of the jury on the voluntariness of
the confessions. Petitioners made no effort to rebut the testimony
adduced by the State relating to this issue. The judge found the
confessions voluntary, and admitted them into evidence. Petitioners
then expressly relinquished their right under state law to have the
issue of voluntariness, and the accompanying evidence, submitted to
the jury for redetermination. [
Footnote 2] They did not introduce any testimony to
dispute the correctness of their confessions.
Page 384 U. S. 725
In summation at the close of trial, defense counsel explicitly
asserted that the confessions were truthful, and pleaded for
leniency on this ground. Cassidy's lawyer stated to the jury:
"Whatever is in this statement made by Stanley Cassidy is true.
I know it is true. . . . [M]y reason for knowing that it is true is
because of the meetings and consultations I have had with Stanley.
We have been over this many, many times."
"I know it is true because I know Chief Dube, and Chief Dube is
a fine interrogator. If you do not answer truthfully, believe me,
he will question you until he does get the truth, and Chief Dube
got the truth."
Likewise Johnson's lawyer told the jury:
"The statement of Johnson was truthful and honest, because when
that was finished, that was the end of it."
"
* * * *"
"There were no threats. There was no attempt to evade. There was
no trickery. Anything that Chief Dube asked him, he answered
honestly and truthfully."
The jury found Johnson and Cassidy guilty of murder in the first
degree without recommendation of mercy, and they were sentenced to
death. [
Footnote 3]
Page 384 U. S. 726
The convictions of Johnson and Cassidy became final six years
ago, when the New Jersey Supreme Court affirmed them upon direct
appeal [
Footnote 4] and the
time expired for petitioners to seek certiorari from the decision.
There followed a battery of collateral attacks in state and federal
courts, based on new factual allegations, in which petitioners
repeatedly and unsuccessfully assailed the voluntariness of their
confessions. [
Footnote 5] This
proceeding arises out of still another application for
post-conviction relief, accompanied by a fresh set of factual
allegations, in which petitioners have argued in part that their
confessions were inadmissible under the principles of
Escobedo. The court below rejected the claim, holding that
Escobedo did not affect convictions which had become final
prior to the date of that decision, [
Footnote 6] and it is this holding which we are
principally called upon to review. In view of the standards
announced one week ago concerning the warnings which must be given
prior to in-custody interrogation, this case also obliges us to
determine whether
Miranda should be accorded retroactive
application.
In the past year, we have twice dealt with the problem of
retroactivity in connection with other constitutional rules of
criminal procedure.
Linkletter v. Walker, 381 U.
S. 618 (1965);
Tehan v. Shott, 382 U.
S. 406 (1966). These cases establish the principle that,
in criminal litigation concerning constitutional claims,
"the Court may, in the interest of justice, make the rule
prospective. . . .
Page 384 U. S. 727
where the exigencies of the situation require such an
application."
381 U.S. at
381 U. S. 628;
382 U.S. at
382 U. S. 410.
These cases also delineate criteria by which such an issue may be
resolved. We must look to the purpose of our new standards
governing police interrogation, the reliance which may have been
placed upon prior decisions on the subject, and the effect on the
administration of justice of a retroactive application of
Escobedo and
Miranda. See 381 U.S. at
381 U. S. 636;
382 U.S. at
382 U. S.
413.
In
Linkletter, we declined to apply retroactively the
rule laid down in
Mapp v. Ohio, 367 U.
S. 643 (1961), by which evidence obtained through an
unreasonable search and seizure was excluded from state criminal
proceedings. In so holding, we relied in part on the fact that the
rule affected evidence "the reliability and relevancy of which is
not questioned." 381 U.S. at
381 U. S. 639.
Likewise in
Tehan, we declined to give retroactive effect
to
Griffin v. California, 380 U.
S. 609 (1965), which forbade prosecutors and judges to
comment adversely on the failure of a defendant to testify in a
state criminal trial. In reaching this result, we noted that the
basic purpose of the rule was to discourage courts from penalizing
use of the privilege against self-incrimination. 382 U.S. at
382 U. S.
414.
As
Linkletter and
Tehan acknowledged, however,
we have given retroactive effect to other constitutional rules of
criminal procedure laid down in recent years, where different
guarantees were involved. For example, in
Gideon v.
Wainwright, 372 U. S. 335
(1963), which concerned the right of an indigent to the advice of
counsel at trial, we reviewed a denial of habeas corpus. Similarly,
Jackson v. Denno, 378 U. S. 368
(1964), which involved the right of an accused to effective
exclusion of an involuntary confession from trial, was itself a
collateral attack. In each instance, we concluded that retroactive
application was justified because the rule affected
Page 384 U. S. 728
"the very integrity of the factfinding process," and averted
"the clear danger of convicting the innocent."
Linkletter v.
Walker, 381 U.S. at
381 U. S. 639;
Tehan v. Shott, 382 U.S. at
382 U. S.
416.
We here stress that the choice between retroactivity and
nonretroactivity in no way turns on the value of the constitutional
guarantee involved. The right to be represented by counsel at
trial, applied retroactively in
Gideon v. Wainwright,
supra, has been described by Justice Schaefer of the Illinois
Supreme Court as "by far the most pervasive . . . [o]f all of the
rights that an accused person has." [
Footnote 7] Yet Justice Brandeis even more boldly
characterized the immunity from unjustifiable intrusions upon
privacy, which was denied retroactive enforcement in
Linkletter, as "the most comprehensive of rights, and the
right most valued by civilized men." [
Footnote 8] To reiterate what was said in
Linkletter, we do not disparage a constitutional guarantee
in any manner by declining to apply it retroactively.
See
381 U.S. at
381 U. S.
629.
We also stress that the retroactivity or nonretroactivity of a
rule is not automatically determined by the provision of the
Constitution on which the dictate is based. Each constitutional
rule of criminal procedure has its own distinct functions, its own
background of precedent, and its own impact on the administration
of justice, and the way in which these factors combine must
inevitably vary with the dictate involved. Accordingly, as
Linkletter and
Tehan suggest, we must determine
retroactivity "in each case" by looking to the peculiar traits of
the specific "rule in question." 381 U.S. at
381 U. S. 629;
382 U.S. at
382 U. S.
410.
Finally, we emphasize that the question whether a constitutional
rule of criminal procedure does or does
Page 384 U. S. 729
not enhance the reliability of the factfinding process at trial
is necessarily a matter of degree. We gave retroactive effect to
Jackson v. Denno, supra, because confessions are likely to
be highly persuasive with a jury, and, if coerced, they may well be
untrustworthy by their very nature. [
Footnote 9] On the other hand, we denied retroactive
application to
Griffin v. California, supra, despite the
fact that comment on the failure to testify may sometimes mislead
the jury concerning the reasons why the defendant has refused to
take the witness stand. We are thus concerned with a question of
probabilities, and must take account, among other factors, of the
extent to which other safeguards are available to protect the
integrity of the truth-determining process at trial.
Having in mind the course of the prior cases, we turn now to the
problem presented here: whether
Escobedo and
Miranda should be applied retroactively. [
Footnote 10] Our opinion in
Miranda makes it clear that the prime purpose of these
rulings is to guarantee full effectuation of the privilege against
self-incrimination, the mainstay of our adversary system of
criminal justice.
See ante, pp.
384 U. S.
458-466. They are designed in part to assure that the
person
Page 384 U. S. 730
who responds to interrogation while in custody does so with
intelligent understanding of his right to remain silent and of the
consequences which may flow from relinquishing it. In this respect,
the rulings secure scrupulous observance of the traditional
principle, often quoted but rarely heeded to the full degree, that
"the law will not suffer a prisoner to be made the deluded
instrument of his own conviction." [
Footnote 11] Thus, while
Escobedo and
Miranda guard against the possibility of unreliable
statements in every instance of in-custody interrogation, they
encompass situations in which the danger is not necessarily as
great as when the accused is subjected to overt and obvious
coercion.
At the same time, our case law on coerced confessions is
available for persons whose trials have already been completed,
providing, of course, that the procedural prerequisites for direct
or collateral attack are met.
See Fay v. Noia,
372 U. S. 391
(1963). Prisoners may invoke a substantive test of voluntariness
which, because of the persistence of abusive practices, has become
increasingly meticulous through the years.
See Reck v.
Pate, 367 U. S. 433
(1961). That test now takes specific account of the failure to
advise the accused of his privilege against self-incrimination or
to allow him access to outside assistance.
See Haynes v.
Washington, 373 U. S. 503
(1963);
Spano v. New York, 360 U.
S. 315 (1959). Prisoners are also entitled to present
evidence anew on this aspect of the voluntariness of their
confessions if a full and fair hearing has not already been
afforded them.
See Townsend v. Sain, 372 U.
S. 293 (1963). Thus, while
Escobedo and
Miranda provide important new safeguards against the use
of unreliable statements at trial, the nonretroactivity of these
decisions will not preclude persons whose trials have already been
completed from invoking the same safeguards as part of an
involuntariness claim.
Page 384 U. S. 731
Nor would retroactive application have the justifiable effect of
curing errors committed in disregard of constitutional rulings
already clearly foreshadowed. We have pointed out above that past
decisions treated the failure to warn accused persons of their
rights, or the failure to grant them access to outside assistance,
as factors tending to prove the involuntariness of the resulting
confessions.
See Haynes v. Washington, supra; Spano v. New
York, supra. Prior to
Escobedo and
Miranda,
however, we had expressly declined to condemn an entire process of
in-custody interrogation solely because of such conduct by the
police.
See Crooker v. California, 357 U.
S. 433 (1958);
Cicenia v. Lagay, 357 U.
S. 504 (1958). Law enforcement agencies fairly relied on
these prior cases, now no longer binding, in obtaining
incriminating statements during the intervening years preceding
Escobedo and
Miranda. This is in favorable
comparison to the situation before
Mapp v. Ohio,
367 U. S. 643
(1961), where the States at least knew that they were
constitutionally forbidden from engaging in unreasonable searches
and seizures under
Wolf v. Colorado, 338 U. S.
25 (1949).
At the same time, retroactive application of
Escobedo
and
Miranda would seriously disrupt the administration of
our criminal laws. It would require the retrial or release of
numerous prisoners found guilty by trustworthy evidence in
conformity with previously announced constitutional standards.
Prior to
Escobedo and
Miranda, few States were
under any enforced compulsion on account of local law to grant
requests for the assistance of counsel or to advise accused persons
of their privilege against self-incrimination.
Compare Crooker
v. California, 357 U.S. at
357 U. S. 448,
n. 4 (dissenting opinion). By comparison,
Mapp v. Ohio,
supra, was already the law in a majority of the States at the
time it was rendered, and only six States were immediately
Page 384 U. S. 732
affected by
Griffin v. California, 380 U.
S. 609 (1965).
See Tehan v. Shott, 382 U.S. at
382 U. S.
418.
In the light of these various considerations, we conclude that
Escobedo and
Miranda, like
Mapp v. Ohio,
supra, and
Griffin v. California, supra, should not
be applied retroactively. The question remains whether
Escobedo and
Miranda shall affect cases still on
direct appeal when they were decided, or whether their application
shall commence with trials begun after the decisions were
announced. Our holdings in
Linkletter and
Tehan
were necessarily limited to convictions which had become final by
the time
Mapp and
Griffin were rendered.
Decisions prior to
Linkletter and
Tehan had
already established without discussion that
Mapp and
Griffin applied to cases still on direct appeal at the
time they were announced.
See 381 U.S. at
381 U. S. 622
and n. 4; 382 U.S. at
382 U. S. 409,
n. 3. On the other hand, apart from the application of the holdings
in
Escobedo and
Miranda to the parties before the
Court in those cases, the possibility of applying the decisions
only prospectively is yet an open issue.
All of the reasons set forth above for making
Escobedo
and
Miranda nonretroactive suggest that these decisions
should apply only to trials begun after the decisions were
announced. Future defendants will benefit fully from our new
standards governing in-custody interrogation, while past defendants
may still avail themselves of the voluntariness test. Law
enforcement officers and trial courts will have fair notice that
statements taken in violation of these standards may not be used
against an accused. Prospective application only to trials begun
after the standards were announced is particularly appropriate
here. Authorities attempting to protect the privilege have not been
apprised heretofore of the specific safeguards which are now
obligatory.
Page 384 U. S. 733
Consequently, they have adopted devices which, although below
the constitutional minimum, were not intentional evasions of the
requirements of the privilege. In these circumstances, to upset all
of the convictions still pending on direct appeal which were
obtained in trials preceding
Escobedo and
Miranda
would impose an unjustifiable burden on the administration of
justice.
At the same time, we do not find any persuasive reason to extend
Escobedo and
Miranda to cases tried before those
decisions were announced, even though the cases may still be on
direct appeal. Our introductory discussion in
Linkletter,
and the cases cited therein, have made it clear that there are no
jurisprudential or constitutional obstacles to the rule we are
adopting here.
See 381 U.S. at
381 U. S.
622-629. In appropriate prior cases, we have already
applied new judicial standards in a wholly prospective manner.
See England v. Louisiana State Board of Medical Examiners,
375 U. S. 411
(1964);
James v. United States, 366 U.
S. 213 (1961). Nor have we been shown any reason why our
rule is not a sound accommodation of the principles of
Escobedo and
Miranda.
In the light of these additional considerations, we conclude
that
Escobedo and
Miranda should apply only to
cases commenced after those decisions were announced. We recognize
that certain state courts have perceived the implications of
Escobedo, and have therefore anticipated our holding in
Miranda. Of course, States are still entirely free to
effectuate under their own law stricter standards than those we
have laid down, and to apply those standards in a broader range of
cases than is required by this decision.
Apart from its broad implications, the precise holding of
Escobedo was that statements elicited by the police
Page 384 U. S. 734
during an interrogation may not be used against the accused at a
criminal trial,
"[where] the investigation is no longer a general inquiry into
an unsolved crime, but has begun to focus on a particular suspect,
the suspect has been taken into police custody, the police carry
out a process of interrogations that lends itself to eliciting
incriminating statements, the suspect has requested and been denied
an opportunity to consult with his lawyer, and the police have not
effectively warned him of his absolute constitutional right to
remain silent. . . ."
378 U.S. at
378 U. S.
490-491. Because
Escobedo is to be applied
prospectively, this holding is available only to persons whose
trials began after June 22, 1964, the date on which
Escobedo was decided.
As for the standards laid down one week ago in
Miranda,
if we were persuaded that they had been fully anticipated by the
holding in
Escobedo, we would measure their prospectivity
from the same date. Defendants still to be tried at that time would
be entitled to strict observance of constitutional doctrines
already clearly foreshadowed. The disagreements among other courts
concerning the implications of
Escobedo, [
Footnote 12] however, have impelled us to
lay down additional guidelines for situations not presented by that
case. This we have done in
Miranda, and these guidelines
are therefore available only to persons whose trials had not begun
as of June 13, 1966.
See Tehan v. Shott, 382 U.S. at
382 U. S.
409,
Page 384 U. S. 735
n. 3, in relation to
Malloy v. Hogan, 378 U. S.
1 (1964), and
Griffin v. California, supra.
Petitioners challenge the validity of their convictions on
several other grounds, all of which we have examined with great
care, including the claim that their confessions were coerced. We
conclude without unnecessary discussion that those grounds which
may be tested on this review of the judgment of the New Jersey
Supreme Court are without merit. We further find that petitioners'
contentions relating to the voluntariness of their confessions are
beyond the scope of our review in this proceeding.
Petitioners' coerced confession claim was fully litigated and
rejected both at trial and in prior post-conviction hearings in the
state courts. On neither occasion, however, did petitioners attempt
to substantiate certain allegations made for the first time in the
present proceeding. As stated above, petitioners now assert that
they were prevented from obtaining outside assistance while they
were being interrogated. The police allegedly refused them access
to their families or a lawyer, and also thwarted the efforts of
their relatives and friends to contact them. We have already
pointed out that allegations of this kind are directly relevant to
a coerced confession claim, and that such a claim presents no
problem of retroactivity.
See also Davis v. North Carolina,
post, p.
384 U. S. 737.
The New Jersey Supreme Court invoked a state procedural rule,
previously applied in another confession case, as a bar to
reconsideration of petitioners' coerced confession claim, even in
the light of their new allegations regarding the denial of outside
assistance.
See N.J.Rev.Rules 3:10A-5 (1965 Supp.);
State v. Smith, 43 N.J. 67,
202 A.2d
669 (1964). This is an adequate state ground which precludes us
from testing the coerced confession claim on the present review,
whatever may
Page 384 U. S. 736
be the significance of the state court's reliance on its
procedural rule in federal habeas corpus proceedings.
See Fay
v. Noia, 372 U. S. 391
(1963).
The judgment of the Supreme Court of New Jersey is
Affirmed.
MR. JUSTICE CLARK concurs in the opinion and judgment of the
Court. He adheres, however, to the views stated in his separate
opinion in
Miranda v. Arizona, ante, p.
384 U. S.
499.
MR. JUSTICE HARLAN, MR. JUSTICE STEWART, and MR. JUSTICE WHITE
concur in the opinion and judgment of the Court. They continue to
believe, however, for the reasons stated in the dissenting opinions
of MR. JUSTICE HARLAN and MR. JUSTICE WHITE in
Miranda v.
Arizona and its companion cases,
ante, pp.
384 U. S. 504,
384 U. S. 526,
that the new constitutional rules promulgated in those cases are
both unjustified and unwise.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, dissents
from the Court's holding that the petitioners here are not entitled
to the full protections of the Fifth and Sixth Amendments as this
Court has construed them in
Escobedo v. Illinois,
378 U. S. 478, and
Miranda v. Arizona, ante, p.
384 U. S. 436, for
substantially the same reasons stated in his dissenting opinion in
Linkletter v. Walker, 381 U. S. 618, at
381 U. S.
640.
[
Footnote 1]
"I am going to ask you some questions as to what you know about
the hold-up, but, before I ask you these questions, it is my duty
to warn you that everything you tell me must be of your own free
will, must be the truth, without any promises or threats having
been made to you, and knowing anything you tell me can be used
against you, or any other person, at some future time."
[
Footnote 2]
The procedure prescribed by state law was outlined in the
opinion below as follows:
"Under the New Jersey procedure for the admission in evidence of
a confession, the trial judge must first determine whether the
confession was voluntary. If he finds the confession to be
voluntary, and hence admissible, he instructs the jury to also
consider the voluntariness of the confession and to disregard it
unless the State proves it was voluntarily given."
43 N.J. 572, 586, n. 9,
206
A.2d 737, 744-745, n. 9.
[
Footnote 3]
A third defendant, Wayne Godfrey, was also found guilty and
sentenced to death. His conviction was subsequently overturned by a
federal court in post-conviction proceedings. Upon retrial for
felony murder, he pleaded
non vult and was sentenced to
life imprisonment.
[
Footnote 4]
State v. Johnson, 31 N.J. 489,
158
A.2d 11 (1960).
[
Footnote 5]
State v. Johnson, 63 N.J.Super. 16,
163 A.2d 593 (1960),
aff'd, 34 N.J. 212,
168 A.2d
1,
cert. denied, 368 U.S. 933 (1961);
United
States ex rel. Johnson v. Yeager, 327 F.2d 311 (C.A.3d Cir.),
cert. denied, 377 U.S. 984 (1964).
See also State v.
Johnson, 71 N.J.Super. 506,
177 A.2d 312,
aff'd, 37 N.J.19,
179 A.2d
1,
cert. denied, 370 U.S. 928 (1962).
[
Footnote 6]
43 N.J. 572,
206 A.2d
737.
[
Footnote 7]
Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 8
(1956).
[
Footnote 8]
Olmstead v. United States, 277 U.
S. 438,
277 U. S. 478
(1928) (dissenting opinion).
[
Footnote 9]
Coerced confessions are, of course, inadmissible regardless of
their alleged truth or falsity.
See Rogers v. Richmond,
365 U. S. 534
(1961).
[
Footnote 10]
It appears that every state supreme court and federal court of
appeals which has discussed the question has declined to apply the
tenets of
Escobedo retroactively. For example,
see In
re Lopez, 62 Cal. 2d
368, 42 Cal. Rptr. 188, 398 P.2d 380 (1965);
Ruark v.
People, ___ Colo. ___,
405 P.2d 751
(1965);
Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670
(1965);
United States ex rel. Walllen v. Pate, 350 F.2d
240 (C.A. 7th Cir.1965). The commentators, however, are divided on
this issue.
Compare Mishkin, The Supreme Court 1964 Term
-- Foreword: The High Court, The Great Writ, and the Due Process of
Time and Law, 79 Harv.L.Rev. 56 (1965), which opposes retroactive
application,
with Comment,
Linkletter, Shott, and
the Retroactivity Problem in
Escobedo, 64 Mich.L.Rev. 832
(1966).
[
Footnote 11]
2 Hawkins, Pleas of the Crown 595 (8th ed. 1824).
[
Footnote 12]
For example,
compare People v. Dorado, 62 Cal. 2d
338, 42 Cal. Rptr. 169, 398 P.2d 361 (1965),
and People v.
Dufour, ___ R.I. ___,
206
A.2d 82 (1965), which construe
Escobedo broadly,
with People v. Hartgraves, 31 Ill. 2d
375,
202 N.E.2d 33
(1964),
and Browne v. State, 24 Wis.2d 491, 131 N.W.2d 169
(1964).