Respondent, who had been arrested for rape, was questioned by
police. Before the commencement of the interrogation (which
antedated this Court's decision in
Miranda v. Arizona,
384 U. S. 436),
respondent was advised of his right to remain silent and his right
to counsel (but not of his right to the appointment of counsel if
he was indigent). Respondent related an alibi that he was with a
friend (Henderson), at the time of the crime, but the police later
elicited from Henderson information tending to incriminate
respondent. Before trial, respondent made a motion to exclude
Henderson's expected testimony because respondent had revealed
Henderson's identity without having received the full warnings
mandated by the intervening
Miranda decision. The motion
was denied, Henderson testified, and respondent was convicted.
Following affirmance on appeal, respondent sought habeas corpus
relief, which the District Court granted, finding that Henderson's
testimony was inadmissible because of the
Miranda
violation. The Court of Appeals affirmed.
Held:
1. The police conduct in this case, though failing to afford
respondent the full measure of procedural safeguards later set
forth in
Miranda, did not deprive respondent of his
privilege against self-incrimination since the record clearly shows
that respondent's statements during the police interrogation were
not involuntary or the result of potential legal sanctions. Pp.
417 U. S.
439-446.
2. The evidence derived from the police interrogation was
admissible. Pp.
417 U. S.
446-452.
(a) The police's pre-
Miranda failure to advise
respondent of his right to appointed counsel under all the
circumstances of this case involved no bad faith, and would not
justify recourse to the exclusionary rule, which is aimed at
deterring willful or negligent deprivation of the accused's rights.
Pp.
417 U. S.
446-448.
(b) The failure to advise respondent of his right to appointed
counsel had no bearing upon the reliability of Henderson's
testimony, which was subjected to the normal testing process of an
adversary trial. Pp.
417 U. S.
448-449.
Page 417 U. S. 434
(c) The use of the testimony of a witness discovered by the
police as a result of the accused's statements under these
circumstances does not violate any requirements under the Fifth,
Sixth, and Fourteenth Amendments relating to the adversary system.
Pp.
417 U. S.
449-450.
480 F.2d 927, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, BLACKMUN, and POWELL, JJ., joined.
STEWART, J., filed a concurring opinion,
post, p.
417 U. S. 453.
BRENNAN, J., filed an opinion concurring in the judgment, in which
MARSHALL, J., joined,
post, p.
417 U. S. 453.
WHITE, J., filed an opinion concurring in the judgment,
post, p.
417 U. S. 460.
DOUGLAS, J., filed a dissenting opinion,
post, p.
417 U. S.
461.
Page 417 U. S. 435
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
This case presents the question whether the testimony of a
witness in respondent's state court trial for rape must be excluded
simply because police had learned the identity of the witness by
questioning respondent at a time when he was in custody as a
suspect, but had not been advised that counsel would be appointed
for him if he was indigent. The questioning took place before this
Court's decision in
Miranda v. Arizona, 384 U.
S. 436 (1966), but respondent's trial, at which he was
convicted, took place afterwards. Under the holding of
Johnson
v. New Jersey, 384 U. S. 719
(1966), therefore,
Miranda is applicable to this case. The
United States District Court for the Eastern District of Michigan
reviewed respondent's claim on a petition for habeas corpus and
held that the testimony must be excluded. [
Footnote 1] The Court of Appeals affirmed. [
Footnote 2]
I
On the morning of April 19, 1966, a 43-year-old woman in
Pontiac, Michigan, was found in her home by a friend and coworker,
Luther White, in serious condition. At the time she was found, the
woman was tied, gagged, and partially disrobed, and had been both
raped and severely beaten. She was unable to tell White anything
about her assault at that time, and still remains unable to
recollect what happened.
While White was attempting to get medical help for the victim
and to call for the police, he observed a dog inside the house.
This apparently attracted White's attention for he knew that the
woman did not own a dog
Page 417 U. S. 436
herself. Later, when talking with police officers, White
observed the dog a second time, and police followed the dog to
respondent's house. Neighbors further connected the dog with
respondent.
The police then arrested respondent and brought him to the
police station for questioning. Prior to the actual interrogation,
the police asked respondent whether he knew for what crime he had
been arrested, whether he wanted an attorney, and whether he
understood his constitutional rights. [
Footnote 3] Respondent replied that he did understand the
crime for which he was arrested, that he did not want an attorney,
and that he understood his rights. [
Footnote 4] The police further advised him that any
statements he might make could be used against him at a later date
in court. [
Footnote 5] The
police, however, did not advise respondent that he would be
furnished counsel free of charge if he could not pay for such
services himself.
The police then questioned respondent about his activities on
the night of the rape and assault. Respondent replied that, during
the general time period at issue, he had first been with one Robert
Henderson and then later at home, alone, asleep. The police sought
to confirm this story by contacting Henderson, but Henderson's
story served to discredit, rather than to bolster, respondent's
account. Henderson acknowledged that respondent had been with him
on the night of the crime, but said that he had left at a
relatively early time. Furthermore, Henderson told police that he
saw respondent the following day and asked him at that time about
scratches on his face -- "asked him if he got hold of a wild one or
something." [
Footnote 6]
Respondent answered: "[S]omething like
Page 417 U. S. 437
that." [
Footnote 7] Then,
Henderson said, he asked respondent "who it was," [
Footnote 8] and respondent said: "[S]ome
woman lived the next block over," [
Footnote 9] adding: "She is a widow woman," or words to
that effect. [
Footnote
10]
These events all occurred prior to the date on which this Court
handed down its decision in
Miranda v. Arizona, supra, but
respondent's trial occurred afterwards. Prior to trial,
respondent's appointed counsel made a motion to exclude Henderson's
expected testimony because respondent had revealed Henderson's
identity without having received full
Miranda warnings.
Although respondent's own statements taken during interrogation
were excluded, the trial judge denied the motion to exclude
Henderson's testimony. Henderson therefore testified at trial, and
respondent was convicted of rape and sentenced to 20 to 40 years'
imprisonment. His conviction was affirmed by both the Michigan
Court of Appeals [
Footnote
11] and the Michigan Supreme Court. [
Footnote 12]
Respondent then sought habeas corpus relief in Federal District
Court. That court, noting that respondent had not received the full
Miranda warnings and that the police had stipulated
Henderson's identity was learned only through respondent's answers,
"reluctantly" concluded that Henderson's testimony could not be
admitted. [
Footnote 13]
Application of such an exclusionary rule was necessary, the court
reasoned, to protect respondent's Fifth Amendment right against
compulsory self-incrimination. The court therefore granted
respondent's petition for a writ of habeas corpus unless
petitioner
Page 417 U. S. 438
retried respondent within 90 days. The Court of Appeals for the
Sixth Circuit affirmed. We granted certiorari, 414 U.S. 1062
(1973), and now reverse.
II
Although respondent's sole complaint is that the police failed
to advise him that he would be given free counsel if unable to
afford counsel himself, he did not, and does not now, base his
arguments for relief on a right to counsel under the Sixth and
Fourteenth Amendments. Nor was the right to counsel, as such,
considered to be persuasive by either federal court below. We do
not have a situation such as that presented in
Escobedo v.
Illinois, 378 U. S. 478
(1964), where the policemen interrogating the suspect had refused
his repeated requests to see his lawyer, who was then present at
the police station. As we have noted previously,
Escobedo
is not to be broadly extended beyond the facts of that particular
case.
See Johnson v. New Jersey, 384 U.S. at
384 U. S.
733-734;
Kirby v. Illinois, 406 U.
S. 682,
406 U. S. 689
(1972);
Frazier v. Cupp, 394 U. S. 731,
394 U. S. 739
(1969). This case also falls outside the rationale of
United
States v. Wade, 388 U. S. 218,
388 U. S. 224
(1967), where the Court held that counsel was needed at a
post-indictment lineup in order to protect the "right to a fair
trial at which the witnesses against [the defendant] might be
meaningfully cross-examined." Henderson was fully available for
searching cross examination at respondent's trial.
Respondent's argument, and the opinions of the District Court
and Court of Appeals, instead rely upon the Fifth Amendment right
against compulsory self-incrimination and the safeguards designed
in
Miranda to secure that right. In brief, the position
urged upon this Court is that proper regard for the privilege
against compulsory self-incrimination requires, with limited
exceptions not
Page 417 U. S. 439
applicable here, that all evidence derived solely from
statements made without full
Miranda warnings be excluded
at a subsequent criminal trial. For purposes of analysis in this
case, we believe that the question thus presented is best examined
in two separate parts. We will therefore first consider whether the
police conduct complained of directly infringed upon respondent's
right against compulsory self-incrimination or whether it instead
violated only the prophylactic rules developed to protect that
right. We will then consider whether the evidence derived from this
interrogation must be excluded.
III
The history of the Fifth Amendment right against compulsory
self-incrimination, and the evils against which it was directed,
have received considerable attention in the opinions of this Court.
See, e.g., Kastigar v. United States, 406 U.
S. 441 (1972);
Miranda v. Arizona, supra; Murphy v.
Waterfront Comm'n, 378 U. S. 52
(1964);
Ullmann v. United States, 350 U.
S. 422,
350 U. S. 426
(1956);
Counselman v. Hitchcock, 142 U.
S. 547 (1892). At this point in our history, virtually
every schoolboy is familiar with the concept, if not the language,
of the provision that reads: "No person . . . shall be compelled in
any criminal case to be a witness against himself. . . ." This
Court's decisions have referred to the right as "the mainstay of
our adversary system of criminal justice,"
Johnson v. New
Jersey, supra, at
384 U. S. 729,
and as "
one of the great landmarks in man's struggle to make
himself civilized.'" Ullmann, supra, at 350 U. S. 426.
It is not surprising that the constitution of virtually every State
has a comparable provision. 8 J. Wigmore, Evidence § 2252
(McNaughton rev.1961) (hereinafter Wigmore).
The importance of a right does not, by itself, determine its
scope, and therefore we must continue to hark back
Page 417 U. S. 440
to the historical origins of the privilege, particularly the
evils at which it was to strike. The privilege against compulsory
self-incrimination was developed by painful opposition to a course
of ecclesiastical inquisitions and Star Chamber proceedings
occurring several centuries ago.
See L. Levy, Origins of
the Fifth Amendment (1968); Morgan, The Privilege Against
Self-Incrimination, 34 Minn.L.Rev. 1 (1949); 8 Wigmore § 2250.
Certainly anyone who reads accounts of those investigations, which
placed a premium on compelling subjects of the investigation to
admit guilt from their own lips, cannot help but be sensitive to
the Framers' desire to protect citizens against such compulsion. As
this Court has noted, the privilege against self-incrimination "was
aimed at a . . . far-reaching evil -- a recurrence of the
Inquisition and the Star Chamber, even if not in their stark
brutality."
Ullmann, supra, at
350 U. S.
428.
Where there has been genuine compulsion of testimony, the right
has been given broad scope. Although the constitutional language in
which the privilege is cast might be construed to apply only to
situations in which the prosecution seeks to call a defendant to
testify against himself at his criminal trial, its application has
not been so limited. The right has been held applicable to
proceedings before a grand jury,
Counselman v. Hitchcock,
supra; to civil proceedings,
McCarthy v. Arndstein,
266 U. S. 34
(1924); to congressional investigations,
Watkins v. United
States, 354 U. S. 178
(1957); to juvenile proceedings,
In re Gault, 387 U. S.
1 (1967); and to other statutory inquiries,
Malloy
v. Hogan, 378 U. S. 1 (1964).
The privilege has also been applied against the States by virtue of
the Fourteenth Amendment.
Ibid.
The natural concern which underlies many of these decisions is
that an inability to protect the right at
Page 417 U. S. 441
one stage of a proceeding may make its invocation useless at a
later stage. For example, a defendant's right not to be compelled
to testify against himself at his own trial might be practically
nullified if the prosecution could previously have required him to
give evidence against himself before a grand jury. Testimony
obtained in civil suits, or before administrative or legislative
committees, could also prove so incriminating that a person
compelled to give such testimony might readily be convicted on the
basis of those disclosures in a subsequent criminal proceeding.
[
Footnote 14]
In more recent years, this concern -- that compelled disclosures
might be used against a person at a later criminal trial -- has
been extended to cases involving police interrogation. Before
Miranda, the principal issue in these cases was not
whether a defendant had waived his privilege against compulsory
self-incrimination, but simply whether his statement was
"voluntary." In state cases, the Court applied the Due Process
Clause of the Fourteenth Amendment, examining the circumstances of
interrogation to determine whether the processes were so unfair or
unreasonable as to render a subsequent confession involuntary.
See, e.g., Brown v. Mississippi, 297 U.
S. 278 (1936);
Chambers v. Florida,
309 U. S. 227
(1940);
White v. Texas, 310 U. S. 530
(1940);
Payne v. Arkansas, 356 U.
S. 560 (1958);
Haynes v. Washington,
373 U. S. 503
(1963).
See also 3 J. Wigmore, Evidence § 815
et
seq. (Chadbourne rev.1970). Where the State's actions offended
the standards of fundamental fairness under the Due Process Clause,
the State was then deprived of the right to us the resulting
confessions in court.
Page 417 U. S. 442
Although federal cases concerning voluntary confessions often
contained references to the privilege against compulsory
self-incrimination, [
Footnote
15] references which were strongly criticized by some
commentators,
see 8 Wigmore § 2266, [
Footnote 16] it was not until this Court's
decision in
Miranda that the privilege against compulsory
self-incrimination was seen as the principal protection for a
person facing police interrogation. This privilege had been made
applicable to the States in
Malloy v. Hogan, supra, and
was thought to offer a more comprehensive and
Page 417 U. S. 443
less subjective protection than the doctrine of previous cases.
In
Miranda, the Court examined the facts of four separate
cases and stated:
"In these cases, we might not find the defendants' statements to
have been involuntary in traditional terms. Our concern for
adequate safeguards to protect precious Fifth Amendment rights is,
of course, not lessened in the slightest. . . . To be sure, the
records do not evince overt physical coercion or patent
psychological ploys. The fact remains that in none of these cases
did the officers undertake to afford appropriate safeguards at the
outset of the interrogation to insure that the statements were
truly the product of free choice."
384 U.S. at
384 U. S. 457.
Thus, the Court in
Miranda, for the first time, expressly
declared that the Self-Incrimination Clause was applicable to state
interrogations at a police station, and that a defendant's
statements might be excluded at trial despite their voluntary
character under traditional principles.
To supplement this new doctrine, and to help police officers
conduct interrogations without facing a continued risk that
valuable evidence would be lost, the Court in
Miranda
established a set of specific protective guidelines, now commonly
known as the
Miranda rules. The Court declared that
"the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective
to secure the privilege against self-incrimination."
Id. at
384 U. S. 444.
A series of recommended "procedural safeguards" then followed. The
Court in particular stated:
"Prior to any questioning, the person must be warned that he has
a right to remain silent, that any statement he does make may be
used as evidence
Page 417 U. S. 444
against him, and that he has a right to the presence of an
attorney, either retained or appointed."
Ibid. The Court said that the defendant, of course,
could waive these rights, but that any waiver must have been made
"voluntarily, knowingly and intelligently."
Ibid.
The Court recognized that these procedural safeguards were not
themselves rights protected by the Constitution, but were, instead,
measures to insure that the right against compulsory
self-incrimination was protected. As the Court remarked:
"[W]e cannot say that the Constitution necessarily requires
adherence to any particular solution for the inherent compulsions
of the interrogation process as it is presently conducted."
Id. at
384 U. S. 467.
The suggested safeguards were not intended to "create a
constitutional straitjacket,"
ibid., but rather to provide
practical reinforcement for the right against compulsory
self-incrimination.
A comparison of the facts in this case with the historical
circumstances underlying the privilege against compulsory
self-incrimination strongly indicates that the police conduct here
did not deprive respondent of his privilege against compulsory
self-incrimination as such, but rather failed to make available to
him the full measure of procedural safeguards associated with that
right since
Miranda. Certainly no one could contend that
the interrogation faced by respondent bore any resemblance to the
historical practices at which the right against compulsory
self-incrimination was aimed. The District Court in this case noted
that the police had "warned [respondent] that he had the right to
remain silent,"
352 F.
Supp. 266, 267 (172), and the record in this case clearly shows
that respondent was informed that any evidence taken could be used
against him. [
Footnote 17]
The record is also clear that
Page 417 U. S. 445
respondent was asked whether he wanted an attorney, and that he
replied that he did not. [
Footnote 18] Thus, his statements could hardly be termed
involuntary as that term has been defined in the decisions of this
Court. Additionally, there were no legal sanctions, such as the
threat of contempt, which could have been applied to respondent had
he chosen to remain silent. He was simply not exposed to "the cruel
trilemma of self-accusation, perjury or contempt."
Murphy v.
Waterfront Comm'n, 378 U.S. at
378 U. S.
55.
Our determination that the interrogation in this case involved
no compulsion sufficient to breach the right against compulsory
self-incrimination does not mean there was not a disregard, albeit
an inadvertent disregard, of the procedural rules later established
in
Miranda. The question for decision is how sweeping the
judicially imposed consequences of this disregard shall be. This
Court said in
Miranda that statements taken in violation
of the
Miranda principles must not be used to prove the
prosecution's case at trial. That requirement was fully complied
with by the state court here: respondent's statements, claiming
that he was with Henderson and then asleep during the time period
of the crime were not admitted against him at trial. This Court has
also said, in
Wong Sun v. United States, 371 U.
S. 471 (1963), that the "fruits" of police conduct which
actually infringed a defendant's Fourth Amendment rights must be
suppressed. [
Footnote 19]
But we have already concluded that the
Page 417 U. S. 446
police conduct at issue here did not abridge respondent's
constitutional privilege against compulsory self-incrimination, but
departed only fro the prophylactic standards later laid down by
this Court in
Miranda to safeguard that privilege. Thus,
in deciding whether Henderson's testimony must be excluded, there
is no controlling precedent of this Court to guide us. We must
therefore examine the matter as a question of principle.
IV
Just as the law does not require that a defendant receive a
perfect-trial, only a fair one, it cannot realistically require
that policemen investigating serious crimes make no errors
whatsoever. The pressures of law enforcement and the vagaries of
human nature would make such an expectation unrealistic. Before we
penalize police error, therefore, we must consider whether the
sanction serves a valid and useful purpose.
We have recently said, in a search and seizure context, that the
exclusionary rule's
"prime purpose is to deter future unlawful police conduct, and
thereby effectuate the guarantee of the Fourth Amendment against
unreasonable searches and seizures."
United States v. Calandra, 414 U.
S. 338,
414 U. S. 347
(1974). We then continued:
"'The rule is calculated to prevent, not to repair. Its purpose
is to deter -- to compel respect for the constitutional guaranty in
the only effectively available way -- by removing the incentive to
disregard it.'
Elkins v. United States, 364 U. S.
206,
364 U. S. 217 (1960).
[
Footnote 20]"
Ibid.
Page 417 U. S. 447
In a proper case this rationale would seem applicable to the
Fifth Amendment context as well.
The deterrent purpose of the exclusionary rule necessarily
assumes that the police have engaged in willful, or at the very
least negligent, conduct which has deprived the defendant of some
right. By refusing to admit evidence gained as a result of such
conduct, the courts hope to instill in those particular
investigating officers, or in their future counterparts, a greater
degree of care toward the rights of an accused. Where the official
action was pursued in complete good faith, however, the deterrence
rationale loses much of its force.
We consider it significant to our decision in this case that the
officers' failure to advise respondent of his right to appointed
counsel occurred prior to the decision in
Miranda.
Although we have been urged to resolve the broad question of
whether evidence derived from statements taken in violation of the
Miranda rules must be excluded regardless of when the
interrogation took place, [
Footnote 21] we instead place our holding on a narrower
ground. For at the time respondent was questioned, these police
officers were guided, quite rightly, by the principles established
in
Escobedo v. Illinois, 378 U. S. 478
(1964), particularly focusing on the suspect's opportunity to have
retained counsel with him during the interrogation if he chose to
do so. [
Footnote 22] Thus,
the police asked respondent if he wanted counsel, and he answered
that he did not. The
Page 417 U. S. 448
statements actually made by respondent to the police, as we have
observed, were excluded at trial in accordance with
Johnson v.
New Jersey, 384 U. S. 719
(1966). Whatever deterrent effect on future police conduct the
exclusion of those statements may have had, we do not believe it
would be significantly augmented by excluding the testimony of the
witness Henderson as well.
When involuntary statements or the right against compulsory
self-incrimination are involved, a second justification for the
exclusionary rule also has been asserted: protection of the courts
from reliance on untrustworthy evidence. [
Footnote 23] Cases which involve the
Self-Incrimination Clause must, by definition, involve an element
of coercion, since the Clause provides only that a person shall not
be
compelled to give evidence against himself. And cases
involving statements often depict severe pressures which may
override a particular suspect's insistence on innocence. Fact
situations ranging from classical third-degree torture,
Brown
v. Mississippi, 297 U. S. 278
(1936), to prolonged isolation from family or friends in a hostile
setting,
Gallegos v. Colorado, 370 U. S.
49 (1962), or to a simple desire on the part of a
physically or mentally exhausted
Page 417 U. S. 449
suspect to have a seemingly endless interrogation end,
Watts
v. Indiana, 338 U. S. 49
(1949), all might be sufficient to cause a defendant to accuse
himself falsely.
But those situations are a far cry from that presented here. The
pressures on respondent to accuse himself were hardly comparable
even with the least prejudicial of those pressures which have been
dealt with in our cases. More important, the respondent did not
accuse himself. The evidence which the prosecution successfully
sought to introduce was not a confession of guilt by respondent, or
indeed even an exculpatory statement by respondent, but rather the
testimony of a third party who was subjected to no custodial
pressures. There is plainly no reason to believe that Henderson's
testimony is untrustworthy simply because
respondent was
not advised of
his right to appointed counsel. Henderson
was both available at trial and subject to cross-examination by
respondent's counsel, and counsel fully used this opportunity,
suggesting in the course of his cross-examination that Henderson's
character was less than exemplary and that he had been offered
incentives by the police to testify against respondent. [
Footnote 24] Thus, the reliability
of his testimony was subject to the normal testing process of an
adversary trial.
Respondent contends that an additional reason for excluding
Henderson's testimony is the notion that the adversary system
requires "the government in its contest with the individual to
shoulder the entire load." 8 Wigmore § 2251, p. 317;
Murphy v.
Waterfront Comm'n, 378 U.S. at
378 U. S. 55;
Miranda v. Arizona, 384 U.S. at
384 U. S. 40. To
the extent that this suggested basis for the exclusionary rule in
Fifth Amendment cases may exist independently of the deterrence and
trustworthiness rationales, we think it of no avail to respondent
here. Subject
Page 417 U. S. 450
to applicable constitutional limitations, the Government is not
forbidden all resort to the defendant to make out its case. It may
require the defendant to give physical evidence against himself,
see Schmerber v. California, 384 U.
S. 757 (1966);
United States v. Dionisio,
410 U. S. 1 (1973),
and it may use statements which are voluntarily given by the
defendant after he receives full disclosure of the rights offered
by
Miranda. Here we deal not with the offer of
respondent's own statements in evidence, but only with the
testimony of a witness whom the police discovered as a result of
respondent's statements. This recourse to respondent's voluntary
statements does no violence to such elements of the adversary
system as may be embodied in the Fifth, Sixth, and Fourteenth
Amendments.
In summary, we do not think that any single reason supporting
exclusion of this witness' testimony, or all of them together, are
very persuasive. [
Footnote
25] By contrast, we find the arguments in favor of admitting
the testimony quite strong. For, when balancing the interests
involved, we must weigh the strong interest under any system of
justice of making available to the trier of fact all concededly
relevant and trustworthy evidence which either party seeks to
adduce. In this particular case, we also
"must consider society's interest in the effective prosecution
of criminals in light of the protection our pre-
Miranda
standards afford criminal defendants."
Jenkins
Page 417 U. S. 451
v. Delaware, 395 U. S. 213,
395 U. S. 221
(1969). These interests may be outweighed by the need to provide an
effective sanction to a constitutional right,
Weeks v.United
States, 232 U. S. 383
(1914), but they must, in any event, be valued. Here respondent's
own statement, which might have helped the prosecution show
respondent's guilty conscience at trial, had already been excised
from the prosecution's case pursuant to this Court's
Johnson decision. To extend the excision further under the
circumstances of this case and exclude relevant testimony of a
third-party witness would require far more persuasive arguments
than those advanced by respondent.
This Court has already recognized that a failure to give
interrogated suspects full
Miranda warnings does not
entitle the suspect to insist that statements made by him be
excluded in every conceivable context. In
Harris v. New
York, 401 U. S. 222
(1971), the Court was faced with the question of whether the
statements of the defendant himself, taken without informing him of
his right of access to appointed counsel, could be used to impeach
defendant's direct testimony at trial. The Court concluded that
they could, saying:
"Some comments in the
Miranda opinion can indeed be
read as indicating a bar to use of an uncounseled statement for any
purpose, but discussion of that issue was not at all necessary to
the Court's holding, and cannot be regarded as controlling.
Miranda barred the prosecution from making its case with
statements of an accused made while in custody prior to having or
effectively waiving counsel. It does not follow from
Miranda that evidence inadmissible against an accused in
the prosecution's case in chief is barred for all purposes,
provided of course that the trustworthiness of the evidence
satisfies legal standards."
Id. at
401 U. S.
224.
Page 417 U. S. 452
We believe that this reasoning is equally applicable here.
Although
Johnson enabled respondent to block admission of
his own statements, we do pot believe that it requires the
prosecution to refrain from all use of those statements, and we
disagree with the courts below that Henderson's testimony should
have been excluded in this case. [
Footnote 26]
Reversed.
Page 417 U. S. 453
[
Footnote 1]
352 F.
Supp. 266 (1972).
[
Footnote 2]
480 F.2d 927 (1973).
[
Footnote 3]
Tr. of Prelim. Hearing 99.
[
Footnote 4]
Ibid.
[
Footnote 5]
Id. at 99-100.
[
Footnote 6]
Tr of Trial 223.
[
Footnote 7]
Ibid.
[
Footnote 8]
Id. at 224
[
Footnote 9]
Ibid.
[
Footnote 10]
Ibid.
[
Footnote 11]
Mich.App. 320, 172 N.W.2d 712 (199).
[
Footnote 12]
385 Mich. 594,
189 N.W.2d
290 (1971).
[
Footnote 13]
352 F. Supp. at 28.
[
Footnote 14]
The Court has also held that comment on a defendant's silence or
refusal to take the witness stand may be an impermissible penalty
on exercise of the privilege.
See Griffin v. California,
380 U. S. 609
(1965).
[
Footnote 15]
For example, in
Bram v. United States, 168 U.
S. 532,
168 U. S. 542
(1897), the Court stated:
"In criminal trials, in the courts of the United States,
wherever a question arises whether a confession is incompetent
because not voluntary, the issue is controlled by that portion of
the Fifth Amendment to the Constitution of the United States,
commanding that no person 'shall be compelled in any criminal case
to be a witness against himself.'"
As noted in the text, the privilege against compulsory
self-incrimination was not held applicable against the States until
Malloy v. Hogan, 378 U. S. 1
(1964).
[
Footnote 16]
Wigmore states his objection in the following terms:
"Today in the United States confessions, and probably even
lesser self-incriminating admissions, are excluded despite their
trustworthiness if coerced. The policies leading to this recent
extension of the confession rule are quite similar to those
underlying the privilege against self-incrimination. It is thus not
surprising that the privilege, with its unclear boundaries and
apparently unending capacity for transmogrification and
assimilation, is now sometimes invoked to effect exclusion even
though the disclosure was not compelled from a person under legal
compulsion. Distortion of the privilege to cover such situations is
not necessary. If trustworthy confessions are to be excluded
because coerced, it should be done frankly as an exception to the
principle . . . that the illegality of source of evidence is
immaterial. It should be done, as it usually is, on the ground that
the combination of coercion and use of the evidence in the
particular case violates the relevant constitutional due process
clause."
Id. at 402. (Citations omitted.)
[
Footnote 17]
See n 5,
supra.
[
Footnote 18]
See nn.
3 and |
3 and S. 433fn4|>4,
supra.
[
Footnote 19]
In
Wong Sun, the police discovered evidence through
statements made by the accused after he had been placed under
arrest. This Court, finding that the arrest had occurred without
probable cause, held that the derivative evidence could not be
introduced against the accused at trial. For the reasons stated in
the text, we do not believe that
Wong Sun controls the
case before us.
[
Footnote 20]
The opinion also relied upon
Mapp v. Ohio, 367 U.
S. 643,
367 U. S. 656
(1961);
Tehan v. United States ex rel. Shott, 382 U.
S. 406,
382 U. S. 416
(1966); and
Terry v. Ohio, 392 U. S.
1,
392 U. S. 29
(1968).
See 414 U.S. at
414 U. S.
348.
[
Footnote 21]
Brief for United States as
Amicus Curiae 31
et
seq.; Brief for Respondent 9
et seq.
[
Footnote 22]
As previously noted, the defendant in
Escobedo had
repeatedly asked to see his lawyer who was available at the police
station. Those requests were denied, and the defendant ultimately
confessed. Thus, in direct contrast to the situation here, the
defendant in
Escobedo was told he did not have a right to
see his lawyer, although he had expressly stated his desire to do
so.
[
Footnote 23]
The Court has made clear that the truth or falsity of a
statement is not the determining factor in the decision whether or
not to exclude it.
Jackson v. Denno, 378 U.
S. 368 (1964). Thus, a State which has obtained a
coerced or involuntary statement cannot argue for its admissibility
on the ground that other evidence demonstrates its truthfulness.
Ibid. But it also seems clear that coerced statements have
been regarded with some mistrust. The Court in
Escobedo,
for example, stated that
"a system of criminal law enforcement which comes to depend on
the 'confession' will, in the long run, be less reliable and more
subject to abuses"
than a system relying on independent investigation, 378 U.S. at
378 U. S.
488-489. The Court then cited several authorities
concerned with false confessions.
Id. at
378 U. S. 489
n. 11. Although completely voluntary confessions may, in many
cases, advance the cause of justice and rehabilitation, coerced
confessions, by their nature, cannot serve the same ends.
[
Footnote 24]
Tr. of Trial 226-234.
[
Footnote 25]
It has been suggested that courts should exclude evidence
derived from "lawless invasions of the constitutional rights of
citizens,"
Terry v. Ohio, 392 U.S. at
392 U. S. 13, in
recognition of "the imperative of judicial integrity."
Elkins
v. United States, 364 U. S. 206,
364 U. S. 222
(1960). This rationale, however, is really an assimilation of the
more specific rationales discussed in the text of this opinion, and
does not, in their absence, provide an independent basis for
excluding challenged evidence.
[
Footnote 26]
Our Brother BRENNAN, in his opinion concurring in the judgment,
treats the principal question here simply as a lineal descendant of
the one decided in
Linkletter v. Walker, 381 U.
S. 618 (1965), to be analyzed only in terms of the
retroactivity framework established in that and subsequent
decisions. While his approach has a beguiling simplicity, we
believe it marks a significant and unsettling departure from the
past practice of the Court in this area. Our retroactivity cases,
from
Linkletter v. Walker, supra, to
Gosa v.
Mayden, 413 U. S. 665
(1973), all have in common a particular factual predicate: a
previous constitutional decision of this Court governs the facts of
an earlier decided case unless the constitutional decision is not
to have retroactive effect. The doctrine of retroactivity does not
modify the substantive scope of the constitutional decision, but
rather determines the point in time when it is held to apply.
That common factual predicate is absent here. No defendant in
Miranda sought to block evidence of the type challenged in
this case, and the holding of
Miranda, even if made fully
retroactive, would not therefore resolve the question of whether
Henderson's testimony must also be excluded at trial. Contrary,
therefore, to the suggestion in our Brother's opinion that the
question here is whether to "limit the effect of
Johnson v. New
Jersey," post at
417 U. S. 454
n. 1,
Johnson has never been thought controlling on the
question of fruits, for the simple reason that the parent
Miranda case did not reach that issue.
Our Brother BRENNAN's method of disposition is to determine in
the present case the retroactivity of a holding which the Court has
yet to make. He would say, in effect, that, if the Court should
later determine that
Miranda requires exclusion of fruits
such as the testimony of Henderson, nonetheless that determination
shall not be applied retroactively. But this approach wholly
subverts the heretofore established relationship between the parent
case and the subsidiary case determining whether or not to apply
the parent case retroactively. Under the framework of the analysis
established in
Linkletter, supra, and in subsequent cases,
it would seem indispensable to understand the basis for a
constitutional holding of the Court in order to later determine
whether that holding should be retroactive. Yet
ex
hypothesi, our Brother has no such analysis available, since
the case has yet to be decided. Cases which
subsequently
determine the retroactivity of a constitutional holding have given
the Court enough occasion for concern without substantially
increasing the difficulty of that type of decision by making it
before, rather than after, the constitutional holding.
MR. JUSTICE STEWART, concurring.
In joining the opinion of the Court, I add only that I could
also join MR. JUSTICE BRENNAN's concurrence. For it seems to me
that, despite differences in phraseology, and despite the
disclaimers of their respective authors, the Court opinion and that
of MR. JUSTICE BRENNAN proceed along virtually parallel lines, give
or take a couple of argumentative footnotes.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
concurring in the judgment.
The Court finds it unnecessary to decide "the broad question" of
whether the fruits of "statements taken in violation of the
Miranda rules must be excluded regardless of when the
interrogation took place,"
ante at
417 U. S. 447,
since respondent's interrogation occurred prior to our decision in
Miranda v. Arizona, 384 U. S. 436
(1966). In my view, however, it is unnecessary, too, for the Court
to address the narrower question of whether the principles of
Miranda require that fruits be excluded when obtained as a
result of a pre-
Miranda interrogation without the
requisite prior warnings. The Court, in answering this question,
proceeds from the premise that
Johnson v. New Jersey,
384 U. S. 719
(1966), makes
Miranda applicable to all cases in which a
criminal trial was commenced after the date of our decision in
Miranda,
Page 417 U. S. 454
and that, since respondent's trial was post-
Miranda,
the effect of
Miranda on this case must be resolved. I
would not read
Johnson as making
Miranda
applicable to this case. [
Footnote
2/1]
Frank acknowledgment that retroactive application of newly
announced constitutional rules of criminal procedure may have a
serious impact on the administration of criminal justice has led
us, since
Linkletter v. Walker, 381 U.
S. 618 (1965), to determine retroactivity in terms of
three criteria: (1) the purpose served by the new rules; (2) the
extent of law enforcement officials' justifiable reliance on prior
standards; and (3) the effect on the administration of justice of a
retroactive application of the new rules.
See, e.g., Michigan
v. Payne, 412 U. S. 47,
412 U. S. 51
(1973);
Stovall v. Denno, 388 U.
S. 293,
388 U. S. 297
(1967);
Tehan v. United States ex rel. Shott, 382 U.
S. 406,
382 U. S.
410-418 (1966). We have, as a general matter, limited
our discussion of the relevant "purpose" of new rules to their
functional value in enhancing the reliability of the factfinding
process.
See, e.g., Williams v. United States,
401 U. S. 646,
401 U. S. 653
(1971);
id. at
401 U. S. 663
(concurring opinion);
Desist v. United States,
394 U. S. 244,
394 U. S.
249-250 (1969);
Roberts v. Russell,
392 U. S. 293,
392 U. S. 294
(1968);
Tehan v. United States ex rel. Shott, supra; Linkletter
v. Walker, supra, at
381 U. S.
638-639. This limiting approach has been taken in
recognition that "[t]he basic purpose of a trial is the
determination of truth,"
Tehan v. United States ex rel. Shott,
supra, at
382 U. S. 416;
see Stovall v. Denno, supra, at
388 U. S.
297-298, and that the principal legitimate interest of a
convicted defendant is therefore assurance
Page 417 U. S. 455
that he factfinding process at his trial was not unduly impaired
by adherence to the old standards.
In
Johnson v. New Jersey, supra, the Court was called
upon to determine whether the newly announced procedures in
Miranda v. Arizona should be retroactively applied to
upset final convictions based in part upon confessions obtained
without the prior warnings required by
Miranda. Aware that
Miranda provided new safeguards against the possible use
at trial of unreliable statements of the accused, we nonetheless
concluded that the decision should not be retroactively applied.
[
Footnote 2/2] The probability
Page 417 U. S. 456
that the truth-determining process was distorted by, and
individuals were convicted on the basis of, coerced confessions was
minimized, we found, by the availability of strict
pre-
Miranda standards to test the voluntariness of
confessions. 384 U.S. at
384 U. S. 730.
In addition, we recognized that law enforcement agencies had
justifiably relied on our prior rulings and that retroactive
application would necessitate the wholesale release and subsequent
retrial of vast numbers of prisoners.
Id. at
384 U. S. 731.
Then, in statements unnecessary to our decision -- since all of the
convictions of the petitioners in
Johnson had long since
become final at the time of our decision in
Miranda -- we
went on to say that our newly announced
Miranda rules
should be applied to trials begun after the date that decision was
announced.
Id. at
384 U. S. 732.
The conclusion that the
Miranda rules should be applied
to post-
Miranda trials made good sense, where criminal
defendants were seeking to exclude direct statements made without
prior warning of their rights. Exclusion of possibly unreliable
pre-
Miranda statements made in the inherently coercive
atmosphere of in-custody interrogation,
see Miranda v.
Arizona, 384 U.S. at
384 U. S.
457-458,
384 U. S. 467,
384 U. S. 470,
could be obtained at a relatively low cost. For, although the
police might have relied in good faith on our prior rulings in
interrogating defendants without first advising them of their
rights,
Miranda put the police on notice that
pre-
Miranda confessions obtained without prior warnings
would be inadmissible at defendants' trials.
Page 417 U. S. 457
Since defendants who had made pre-
Miranda confessions
had not yet gone to trial, and the police investigations into those
cases were still fresh,
Johnson envisioned
"no undue burden [being] imposed upon prosecuting authorities by
requiring them to find evidentiary substitutes for statements
obtained in violation of the constitutional protections afforded by
Miranda."
Jenkins v. Delaware, 395 U. S. 213,
395 U. S.
219-220 (1969);
see Johnson v. New Jersey, 384
U.S. at
384 U. S.
732.
Application of the
Miranda standards to the present
case, however, presents entirely different problems. Unlike the
situation contemplated in
Johnson, the burden imposed upon
law enforcement officials to obtain evidentiary substitutes for
inadmissible "fruits" will likely be substantial. The lower courts,
confronted with the question of the application of
Miranda
to fruits, have provided differing answers on the admissibility
issue. [
Footnote 2/3] The police,
therefore, could not reasonably have been expected to know that
substitute evidence would be necessary. As a result, in a case such
as the present one, in which law enforcement officials have relied
on trial and appellate court determinations that fruits are
admissible, a contrary ruling by this Court, coming years after the
commission of the crime, would severely handicap any attempt to
retry the defendant. The burden on law enforcement officers in that
circumstance would be comparable to that in
Jenkins v.
Delaware, supra, where we declined to apply the
Miranda rules to post-
Miranda retrials of persons
whose original trials were commenced prior to
Miranda.
There, we said:
"[C]oncern for the justifiable reliance of law enforcement
Page 417 U. S. 458
officials upon pre-
Miranda standards militates against
applying
Miranda to retrials. . . . As we stated in
Stovall [v. Denno, supra], '[I]nquiry would be handicapped
by the unavailability of witnesses and dim memories.' 388 U.S. at
388 U. S. 300. The burden
would be particularly onerous where an investigation was closed
years prior to a retrial because law enforcement officials relied
in good faith upon a strongly incriminating statement, admissible
at the first trial, to provide the cornerstone of the prosecution's
case."
395 U.S. at
395 U. S. 220
(footnote omitted). Moreover, the element of unreliability -- a
legitimate concern in
Johnson because of the inherently
coercive nature of in-custody interrogation -- is of less
importance when the admissibility of "fruits" is at issue. There is
no reason to believe that the coercive atmosphere of the station
house will have any effect whatsoever on the trustworthiness of
"fruits."
Since excluding the fruits of respondent's statements would not
further the integrity of the factfinding process, and would
severely handicap law enforcement officials in obtaining
evidentiary substitutes, I would confine the reach of
Johnson
v. New Jersey to those cases in which the direct statements of
an accused made during a pre-
Miranda interrogation were
introduced at his post-
Miranda trial. If
Miranda
is applicable at all to the fruits of statements made without
proper warnings, I would limit its effect to those cases in which
the fruits were obtained as a result of post-
Miranda
interrogations.
Cf. Stovall v. Denno, 388 U.
S. 293 (1967);
Desist v. United States,
394 U. S. 244
(1969). [
Footnote 2/4]
Page 417 U. S. 459
Since I agree that the judgment of the Court of Appeals must be
reversed, I concur in the judgment of the Court. [
Footnote 2/5]
Page 417 U. S. 460
[
Footnote 2/1]
Although the petition for certiorari did not urge us to limit
the effect of
Johnson v. New Jersey, this issue was raised
in petitioner's brief as well as in the
amicus curiae
brief of the State of California, filed in support of petitioner.
See Mapp v. Ohio, 367 U. S. 643,
367 U. S. 646
n. 3 (1961);
Stovall v. Denno, 388 U.
S. 293,
388 U. S. 294
n. 1 (1967).
[
Footnote 2/2]
In
Johnson, we commented -- as we have on a number of
occasions in deciding to apply new constitutional rules of criminal
procedure retroactively -- that "we do not disparage a
constitutional guarantee in any manner by declining to apply it
retroactively." 384 U.S. at
384 U. S. 728;
Michigan v. Payne, 412 U. S. 47,
412 U. S. 55 n.
10 (1973). This is so because a prospective application of new
rules will often serve important purposes other than the correction
of serious flaws in the truth-determining process.
The Fifth Amendment privilege against compulsory
self-incrimination -- guaranteed full effectuation by the
Miranda rules -- serves a variety of significant purposes
not relevant to the truth-determining process.
See Tehan v.
United States ex rel. Shott, 382 U. S. 406,
382 U. S.
415-416 (1966). A number of these purposes were
catalogued in
Murphy v. Waterfront Comm'n, 378 U. S.
52,
378 U. S. 55
(1964):
"The privilege against self-incrimination "registers an
important advance in the development of our liberty --
one of
the great landmarks in man's struggle to make himself civilized.'"
Ullmann v. United States, 350 U.
S. 422, 350 U. S. 426.
It reflects many of our fundamental values and most noble
aspirations: our unwillingness to subject those suspected of crime
to the cruel trilemma of self-accusation, perjury or contempt; our
preference for an accusatorial, rather than an inquisitorial,
system of criminal justice; our fear that self-incriminating
statements will be elicited by inhumane treatment and abuses; our
sense of fair play which dictates"
"a fair state-individual balance by requiring the government to
leave the individual alone until good cause is shown for disturbing
him, and by requiring the government in its contest with the
individual to shoulder the entire load,"
"8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect
for the inviolability of the human personality and of the right of
each individual 'to a private enclave where he may lead a private
life,'
United States v. Grunewald, 233 F.2d 556, 581-582
(Frank, J., dissenting),
rev'd, 353 U. S.
391; our distrust of self-deprecatory statements; and
our realization that the privilege, while sometimes 'a shelter to
the guilty,' is often 'a protection to the innocent.'
Quinn v.
United States, 349 U. S. 155,
349 U. S.
162."
(Footnotes omitted.)
[
Footnote 2/3]
Compare the decisions of the Michigan courts in the
instant case, 19 Mich.App. 320, 172 N.W.2d 712 (1969), and 385
Mich. 594,
189 N.W.2d
290 (1971),
with United States v. Cassell, 452 F.2d
533 (CA7 1971),
and People v. Peacock, 29 App.Div.2d 762,
287 N.Y.S.2d 166 (1968).
[
Footnote 2/4]
Three approaches have been taken in deciding what cases should
be affected by prospective application of new constitutional rules
of criminal procedure. In
Linkletter v. Walker,
381 U. S. 618
(1965), the Court held the exclusionary rule of
Mapp v.
Ohio, 367 U. S. 643
(1961), applicable to all cases in which direct review had not come
to an end at the time
Mapp was announced.
See also
Tehan v. United States ex rel. Shott, 382 U.
S. 406 (1966). That approach, as we have observed, was
abandoned in
Johnson v. New Jersey, where we stated that
the
Miranda rules were applicable to all trials commenced
after the date of that decision. In more recent decisions, we have
regarded the cutoff point as that, at which law enforcement
officials could first begin to guide their conduct in accordance
with our new rules. Thus, in
Stovall v. Denno,
388 U. S. 293
(1967), the confrontation rulings of
United States v.
Wade, 388 U. S. 218
(1967), and
Gilbert v. California, 388 U.
S. 263 (1967), were made applicable to cases in which
the confrontations took place after the date of those decisions,
and in
Desist v. United States, 394 U.
S. 244 (1969), the exclusionary ruling of
Katz v.
United States, 389 U. S. 347
(1967), was made applicable only to cases in which the search and
seizure took place after the announcement of
Katz. See
also Michigan v. Pane, 412 U. S. 47,
412 U. S. 57 n.
15 (1973);
Williams v. United States, 401 U.
S. 646,
401 U. S.
656-657 (1971).
But cf. Fuller v. Alaska,
393 U. S. 80,
393 U. S. 81
(1968) (holding that
Lee v. Florida, 392 U.
S. 378 (1968), which ruled evidence seized in violation
of § 605 of the Federal Communications Act, 47 U.S.C. § 605,
inadmissible in state trials, applicable to all cases in which the
evidence was introduced after the date of decision in
Lee).
The trend of our decisions since
Johnson has thus been
toward placing increased emphasis upon the point at which law
enforcement personnel initially relied upon the discarded
constitutional standards.
See Jenkins v. Delaware,
395 U. S. 213,
395 U. S. 218
and n. 7 (1969). As has been noted by an eminent judicial
authority, such an emphasis is wholly consistent with the
underlying rationale for prospective application of new rules,
i.e., justified reliance upon prior judicial standards.
Schaefer, The Control of "Sunbursts": Techniques of Prospective
Overruling, 42 N.Y.U.L.Rev. 631, 645-646 (1967).
[
Footnote 2/5]
My Brother REHNQUIST argues that this concurrence "marks a
significant and unsettling departure from the past practice of the
Court" in respect of retroactivity.
Ante at
417 U. S. 452
n. 26. He argues that
Miranda did not decide the question
of the admissibility of fruits, and therefore that there is no
"parent" decision for retroactive application. But the assumption
upon which the concurrence rests, namely, that
Miranda
requires the exclusion of fruits, necessarily treats
Miranda as a "parent" decision. For the assumption is that
exclusion is necessary to give full effect to the purposes and
policies underlying the
Miranda rules and to its holding
that,
"unless and until [the
Miranda] warnings and waiver are
demonstrated by the prosecution at trial,
no evidence
obtained as a result of interrogation can be used against [the
defendant]."
384 U.S. at
384 U. S. 479
(emphasis added). It necessarily follows that
Miranda
itself is the "parent" decision.
MR. JUSTICE WHITE, concurring in the judgment.
For the reasons stated in my dissent in that case, I continue to
think that
Miranda v. Arizona, 384 U.
S. 436 (1966), was ill-conceived and without warrant in
the Constitution. However that may be, the
Miranda opinion
did not deal with the admissibility of evidence derived from
in-custody admissions obtained without the specified warnings, and
the matter has not been settled by subsequent cases.
In
Orozco v. Texas, 394 U. S. 324
(1969), it appeared that petitioner, who was convicted of murder,
had been arrested and interrogated in his home without the benefit
of
Miranda warnings. Among other things, petitioner
admitted having a gun and told the police where it was hidden in
the house. The gun was recovered, and ballistic tests, which were
admitted into evidence along with various oral admissions, showed
that it was the gun involved in the murder. Petitioner's conviction
was affirmed, the applicability of
Miranda being rejected
by the state courts. Petitioner brought the case here, urging in
his petition for certiorari, which was granted, that the ballistic
evidence was a fruit of an illegal interrogation -- "the direct
product of interrogation" without indispensable constitutional
safeguards. His brief on the merits suggested that it was error
under
Miranda to admit into evidence either his oral
admissions or the evidence of ballistic tests performed on the
pistol, which
Page 417 U. S. 461
was referred to as "an illegally seized object." This Court
reversed the conviction, but, after referring to the ballistic
evidence, went on to hold only hat the admission into evidence of
Orozco's statements made without benefit of
Miranda
warnings was fatal error. Although the issue was presented, the
Court did not expressly deal with the admissibility of the
ballistic tests, and gave no intimation that the evidence was to be
excluded at the anticipated retrial.
Miranda having been applied in this Court only to the
exclusion of the defendant's own statements, I would not extend its
prophylactic scope to bar the testimony of third persons even
though they have been identified by means of admissions that are
themselves inadmissible under
Miranda. The arguable
benefits from excluding such testimony by way of possibly deterring
police conduct that might compel admissions are, in my view, far
outweighed by the advantages of having relevant and probative
testimony, not obtained by actual coercion, available at criminal
trials to aid in the pursuit of truth. The same results would not
necessarily obtain with respect to the fruits of involuntary
confessions. I therefore concur in the judgment.
MR. JUSTICE DOUGLAS, dissenting.
In this case, the respondent, incarcerated as a result of a
conviction in a state court, was granted a writ of habeas corpus by
the District Court. The basis for the writ was the introduction at
respondent's trial of testimony from a witness whose identity was
learned solely as a result of in-custody police interrogation of
the respondent preceded by warnings which were deficient under the
standards enunciated in
Miranda v. Arizona, 384 U.
S. 436 (1966). The District Court concluded that
"the introduction by the prosecution in its case in chief of
testimony of a third
Page 417 U. S. 462
person which is admittedly the fruit of an illegally obtained
statement by the [accused violates the accused's] Fifth Amendment
rights."
352 F.Supp.'266, 268 (ED Mich.1972). The Court of Appeals
affirmed. 480 F.2d 927 (CA6 1973).
I
Prior to interrogation, respondent was told of his right to the
presence of counsel, but he was not told of his right to have an
attorney appointed should he be unable to afford one. Respondent is
an indigent who has been represented at all times in both state and
federal courts by court-appointed counsel. In
Miranda,
supra, we said:
"The need for counsel in order to protect the privilege [against
self-incrimination] exists for the indigent as well as the
affluent. . . . While authorities are not required to relieve the
accused of his poverty, they have the obligation not to take
advantage of indigence in the administration of justice. . . ."
"In order to fully apprise a person interrogated of the extent
of his rights under this system then, it is necessary to warn him
not only that he has the right to consult with an attorney, but
also that, if he is indigent a lawyer will be appointed to
represent him."
384 U.S. at
384 U. S.
472-473.
I cannot agree when the Court says that the interrogation
here
"did not abridge respondent's constitutional privilege against
compulsory self-incrimination, but departed only from the
prophylactic standards later laid down by this Court in
Miranda to safeguard that privilege."
Ante at
417 U. S. 446.
The Court is not free to prescribe preferred modes of interrogation
absent a constitutional basis. We held the "requirement of warnings
and waiver of rights [to be] fundamental with respect to the Fifth
Amendment privilege," 384 U.S. at
384 U. S. 476,
and, without
Page 417 U. S. 463
so holding, we would have been powerless to reverse
Miranda's conviction. While
Miranda recognized
that police need not mouth the precise words contained in the
Court's opinion, such warnings were held necessary "unless other
fully effective means are adopted to notify the person" of his
rights.
Id. at
384 U. S. 479.
There is no contention here that other means were adopted. The
respondent's statements were thus obtained "under circumstances
that did not meet
constitutional standards for protection
of the privilege [against self-incrimination]."
Id. at 491
(emphasis added).
II
With the premise that respondent was subjected to an
unconstitutional interrogation, there remains the question whether
not only the testimony elicited in the interrogation, but also the
fruits thereof must be suppressed. Mr. Justice Holmes first
articulated the "fruits" doctrine in
Silverthorne Lumber Co. v.
United States, 251 U. S. 385
(1920). In that case, the Government had illegally seized the
petitioner's corporate books and documents. The Government
photographed the items before returning them, and used the
photographs as a basis to subpoena the petitioner to produce the
originals before the grand jury. The petitioner refused to comply,
and was cited for contempt. In reversing, the Court noted that
"[t]he essence of a provision forbidding the acquisition of
evidence in a certain way is that not merely evidence so acquired
shall not be used before the Court, but that it shall not be used
at all."
Id. at
251 U. S.
392.
The principle received more recent recognition in
Wong Sun
v. United States, 371 U. S. 471
(1963). There, one Toy had made statements to federal agents, and
the statements were held inadmissible against him. The statements
led the agents to one Yee, and, at Yee's home,
Page 417 U. S. 464
the agents found narcotics which were introduced at trial
against Toy. In reversing Toy's conviction, the Court held that the
narcotics discovered at Yee's home must be excluded, just as Toy's
statements which led to that discovery.
The testimony of the witness in this case was no less a fruit of
unconstitutional police action than the photographs in
Silverthorne or the narcotics in
Wong Sun. The
petitioner has stipulated that the identity and the whereabouts of
the witness and his connection with the case were learned about
only through the unconstitutional interrogation of the respondent.
His testimony must be excluded to comply with
Miranda's
mandate that "
no evidence obtained as a result of
interrogation [not preceded by adequate warnings] can be used
against" an accused. 384 U.S. at
384 U. S. 479
(emphasis added).
III
In
Johnson v. New Jersey, 384 U.
S. 719 (1966), the Court held that statements obtained
in violation of
Miranda standards must be excluded from
all trials occurring after the date of the
Miranda
decision. MR. JUSTICE BRENNAN suggests that
Johnson be
limited, and that the fruits derived from unlawful
pre-
Miranda interrogations be admissible in trials
subsequent to the
Miranda decision. Though respondent's
trial occurred subsequent to the
Miranda decision, his
interrogation preceded it. I disagree, as I disagreed in
Johnson, that any defendant can be deprived of the full
protection of the Fifth Amendment, as the Court has construed it in
Miranda, based upon an arbitrary reference to the date of
his interrogation or his trial.
In
Linkletter v. Walker, 381 U.
S. 618 (1965), the Court held the exclusionary rule of
Mapp v. Ohio, 367 U. S. 643
(1961), inapplicable to convictions which had become "final" prior
to the
Mapp decision. As Mr.
Page 417 U. S. 465
Justice Black, joined by me, noted, the result was as
follows:
"Linkletter, convicted in the state court by use of
'unconstitutional evidence,' is today denied relief by the judgment
of this Court because his conviction became 'final' before
Mapp was decided. Linkletter must stay in jail; Miss Mapp,
whose offense was committed before Linkletter's, is free. This
different treatment of Miss Mapp and Linkletter points up at once
the arbitrary and discriminatory nature of the judicial contrivance
utilized here to break the promise of
Mapp by keeping all
people in jail who are unfortunate enough to have had their
unconstitutional convictions affirmed before June 19, 1961."
381 U.S. at
381 U. S. 641
(dissenting opinion).
I find any such reference to the calendar in determining the
beneficiaries of constitutional pronouncements to be a grossly
invidious discrimination.
Miranda was interrogated on
March 13, 1963; Tucker was interrogated more than three years
later, in April, 1966. I can conceive of no principled way to
deprive Tucker of the constitutional guarantees afforded Miranda.
The reason put forward for refusing to apply the strictures of
Miranda to interrogations which preceded the decision is
that the purpose of
Miranda's rules is the deterrence of
unconstitutional interrogation.
"The inference I gather from these repeated statements is that
the rule is not a right or privilege accorded to defendants charged
with crime, but is a sort of punishment against officers in order
to keep them from depriving people of their constitutional rights.
In passing, I would say that, if that is the sole purpose, reason,
object and effect of the rule, the Court's action in adopting it
sounds more like lawmaking than construing the Constitution."
381 U.S. at
381 U. S. 649
(Black, J., dissenting).
Miranda's purpose was
Page 417 U. S. 466
not promulgation of judicially preferred standards for police
interrogation, a function we are quite powerless to perform; the
decision enunciated "constitutional standards for protection of the
privilege" against self-incrimination. 384 U.S. at
384 U. S. 491.
People who are in jail because of a State's use of
unconstitutionally derived evidence are entitled to a new trial,
with the safeguards the Constitution provides, without regard to
when the constitutional violation occurred, when the trial
occurred, or when the conviction became "final."
As Mr. Justice Black said in
Linkletter:
"It certainly offends my sense of justice to say that a State
holding in jail people who were convicted by unconstitutional
methods has a vested interest in keeping them there that outweighs
the right of persons adjudged guilty of crime to challenge their
unconstitutional convictions at any time."
381 U.S. at
381 U. S.
653.
I would affirm the judgment below.