Miranda v. Arizona

MR. JUSTICE WHITE, with whom MR. JUSTICE HARLAN and MR. JUSTICE STEWART join, dissenting.

I.

The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and
without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment. As for the English
authorities and the common-law history, the privilege, firmly established in the second half of the seventeenth century, was never applied except to
prohibit compelled judicial interrogations. The rule excluding coerced confessions matured about 100 years later, "but there is nothing in the reports to
suggest that the theory has its roots in the privilege against self-incrimination. And so far as the cases reveal, the privilege, as such, seems to have been
given effect only in judicial proceedings, including the preliminary examinations by authorized magistrates." Morgan, The Privilege Against
Self-Incrimination, 34 Minn. L. Rev. 1, 18 (1949).

Our own constitutional provision provides that no person "shall be compelled in any criminal case to be a witness against himself." These words, when
"considered in the light to be shed by grammar and the dictionary . . . appear to signify simply that nobody shall be compelled to give oral testimony
against himself in a criminal proceeding under way in which he is defendant." Corwin, The Supreme Court's Construction of the Self-Incrimination
Clause, 29 Mich. L. Rev. 1, 2. And there is very little in the surrounding circumstances of the adoption of the Fifth Amendment or in the provisions of the
then existing state constitutions or in state practice which would give the constitutional provision any broader meaning. Mayers, The Federal Witness'
Privilege Against Self-Incrimination: Constitutional or Common-Law? 4 American Journal of Legal History 107 (1960). Such a construction, however, was
considerably narrower than the privilege at common law, and when eventually faced with the issues, the Court extended the constitutional privilege to the
compulsory production of books and papers, to the ordinary witness before the grand jury and to witnesses generally. Boyd v. United States, 116 U.S.
616, and Counselman v. Hitchcock, 142 U.S. 547. Both rules had solid support in common-law history, if not in the history of our own constitutional
provision.

A few years later the Fifth Amendment privilege was similarly extended to encompass the then well-established rule against coerced confessions: "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.'" Bram v. United States, 168 U.S. 532, 542. Although this view has found approval in other cases, Burdeau v.

McDowell, 256 U.S. 465, 475; Powers v. United States, 223 U.S. 303, 313; Shotwell v. United States, 371 U.S. 341, 347, it has also been questioned, see
Brown v. Mississippi, 297 U.S. 278, 285; United States v. Carignan, 342 U.S. 36, 41; Stein v. New York, 346 U.S. 156, 191, n. 35, and finds scant support
in either the English or American authorities, see generally Regina v. Scott, Dears. & Bell 47; 3 Wigmore, Evidence § 823 (3d ed. 1940), at 249 ("a
confession is not rejected because of any connection with the privilege against self-crimination"), and 250, n. 5 (particularly criticizing Bram); 8 Wigmore,
Evidence § 2266, at 400-401 (McNaughton rev. 1961). Whatever the source of the rule excluding coerced confessions, it is clear that prior to the
application of the privilege itself to state courts, Malloy v. Hogan, 378 U.S. 1, the admissibility of a confession in a state criminal prosecution was tested by
the same standards as were applied in federal prosecutions. Id., at 6-7, 10.

Bram, however, itself rejected the proposition which the Court now espouses. The question in Bram was whether a confession, obtained during custodial
interrogation, had been compelled, and if such interrogation was to be deemed inherently vulnerable the Court's inquiry could have ended there. After
examining the English and American authorities, however, the Court declared that:




"In this court also it has been settled that the mere fact that the confession is made to a police officer, while the accused was under arrest in or out of
prison, or was drawn out by his questions, does not necessarily render the confession involuntary, but, as one of the circumstances, such imprisonment
or interrogation may be taken into account in determining whether or not the statements of the prisoner were voluntary." 168 U.S., at 558.

In this respect the Court was wholly consistent with prior and subsequent pronouncements in this Court.

Thus prior to Bram the Court, in Hopt v. Utah, 110 U.S. 574, 583-587, had upheld the admissibility of a confession made to police officers following arrest,
the record being silent concerning what conversation had occurred between the officers and the defendant in the short period preceding the confession.
Relying on Hopt, the Court ruled squarely on the issue in Sparf and Hansen v. United States, 156 U.S. 51, 55:





"Counsel for the accused insist that there cannot be a voluntary statement, a free open confession, while a defendant is confined and in irons under an
accusation of having committed a capital offence. We have not been referred to any authority in support of that position. It is true that the fact of a
prisoner being in custody at the time he makes a confession is a circumstance not to be overlooked, because it bears upon the inquiry whether the
confession was voluntarily made or was extorted by threats or violence or made under the influence of fear. But confinement or imprisonment is not in
itself sufficient to justify the exclusion of a confession, if it appears to have been voluntary, and was not obtained by putting the prisoner in fear or by
promises. Wharton's Cr. Ev. 9th ed. §§ 661, 663, and authorities cited."

Accord, Pierce v. United States, 160 U.S. 355, 357.

And in Wilson v. United States, 162 U.S. 613, 623, the Court had considered the significance of custodial interrogation without any antecedent warnings
regarding the right to remain silent or the right to counsel. There the defendant had answered questions posed by a Commissioner, who had failed to
advise him of his rights, and his answers were held admissible over his claim of involuntariness. "The fact that [a defendant] is in custody and manacled
does not necessarily render his statement involuntary, nor is that necessarily the effect of popular excitement shortly preceding. . . . And it is laid down
that it is not essential to the admissibility of a confession that it should appear that the person was warned that what he said would be used against him,
but on the contrary, if the confession was voluntary, it is sufficient though it appear that he was not so warned."

Since Bram, the admissibility of statements made during custodial interrogation has been frequently reiterated. Powers v. United States, 223 U.S. 303,
cited Wilson approvingly and held admissible as voluntary statements the accused's testimony at a preliminary hearing even though he was not warned
that what he said might be used against him. Without any discussion of the presence or absence of warnings, presumably because such discussion
was deemed unnecessary, numerous other cases have declared that "the mere fact that a confession was made while in the custody of the police does
not render it inadmissible," McNabb v. United States, 318 U.S. 332, 346; accord, United States v. Mitchell, 322 U.S. 65, despite its having been elicited by
police examination, Wan v. United States, 266 U.S. 1, 14; United States v. Carignan, 342 U.S. 36, 39. Likewise, in Crooker v. California, 357 U.S. 433,
437, the Court said that "the bare fact of police 'detention and police examination in private of one in official state custody' does not render involuntary a
confession by the one so detained." And finally, in Cicenia v. Lagay, 357 U.S. 504, a confession obtained by police interrogation after arrest was held
voluntary even though the authorities refused to permit the defendant to consult with his attorney. See generally Culombe v. Connecticut, 367 U.S. 568,
587-602 (opinion of Frankfurter, J.); 3 Wigmore, Evidence § 851, at 313 (3d ed. 1940); see also Joy, Admissibility of Confessions 38, 46 (1842).

Only a tiny minority of our judges who have dealt with the question, including today's majority, have considered in-custody interrogation, without more, to
be a violation of the Fifth Amendment. And this Court, as every member knows, has left standing literally thousands of criminal convictions that rested at
least in part on confessions taken in the course of interrogation by the police after arrest.

II.

That the Court's holding today is neither compelled nor even strongly suggested by the language of the Fifth Amendment, is at odds with American and
English legal history, and involves a departure from a long line of precedent does not prove either that the Court has exceeded its powers or that the
Court is wrong or unwise in its present reinterpretation of the Fifth Amendment. It does, however, underscore the obvious -- that the Court has not
discovered or found the law in making today's decision, nor has it derived it from some irrefutable sources; what it has done is to make new law and new
public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution. 1 This is what the Court historically
has done. Indeed, it is what it must do and will continue to do until and unless there is some fundamental change in the constitutional distribution of
governmental powers.


But if the Court is here and now to announce new and fundamental policy to govern certain aspects of our affairs, it is wholly legitimate to examine the
mode of this or any other constitutional decision in this Court and to inquire into the advisability of its end product in terms of the long-range interest of the
country. At the very least the Court's text and reasoning should withstand analysis and be a fair exposition of the constitutional provision which its opinion
interprets. Decisions like these cannot rest alone on syllogism, metaphysics or some ill-defined notions of natural justice, although each will perhaps play
its part. In proceeding to such constructions as it now announces, the Court should also duly consider all the factors and interests bearing upon the
cases, at least insofar as the relevant materials are available; and if the necessary considerations are not treated in the record or obtainable from some
other reliable source, the Court should not proceed to formulate fundamental policies based on speculation alone.

III.

First, we may inquire what are the textual and factual bases of this new fundamental rule. To reach the result announced on the grounds it does, the
Court must stay within the confines of the Fifth Amendment, which forbids self-incrimination only if compelled. Hence the core of the Court's opinion is
that because of the "compulsion inherent in custodial surroundings, no statement obtained from [a] defendant [in custody] can truly be the product of his
free choice," ante, at 458, absent the use of adequate protective devices as described by the Court. However, the Court does not point to any sudden
inrush of new knowledge requiring the rejection of 70 years' experience. Nor does it assert that its novel conclusion reflects a changing consensus
among state courts, see Mapp v. Ohio, 367 U.S. 643, or that a succession of cases had steadily eroded the old rule and proved it unworkable, see
Gideon v. Wainwright, 372 U.S. 335. Rather than asserting new knowledge, the Court concedes that it cannot truly know what occurs during custodial
questioning, because of the innate secrecy of such proceedings. It extrapolates a picture of what it conceives to be the norm from police investigatorial
manuals, published in 1959 and 1962 or earlier, without any attempt to allow for adjustments in police practices that may have occurred in the wake of
more recent decisions of state appellate tribunals or this Court. But even if the relentless application of the described procedures could lead to involuntary
confessions, it most assuredly does not follow that each and every case will disclose this kind of interrogation or this kind of consequence. 2 Insofar as
appears from the Court's opinion, it has not examined a single transcript of any police interrogation, let alone the interrogation that took place in any one of
these cases which it decides today. Judged by any of the standards for empirical investigation utilized in the social sciences the factual basis for the
Court's premise is patently inadequate.

Although in the Court's view in-custody interrogation is inherently coercive, the Court says that the spontaneous product of the coercion of arrest and
detention is still to be deemed voluntary. An accused, arrested on probable cause, may blurt out a confession which will be admissible despite the fact
that he is alone and in custody, without any showing that he had any notion of his right to remain silent or of the consequences of his admission. Yet,
under the Court's rule, if the police ask him a single question such as "Do you have anything to say?" or "Did you kill your wife?" his response, if there is
one, has somehow been compelled, even if the accused has been clearly warned of his right to remain silent. Common sense informs us to the contrary.
While one may say that the response was "involuntary" in the sense the question provoked or was the occasion for the response and thus the defendant
was induced to speak out when he might have remained silent if not arrested and not questioned, it is patently unsound to say the response is compelled.

Today's result would not follow even if it were agreed that to some extent custodial interrogation is inherently coercive. See Ashcraft v. Tennessee, 322
U.S. 143, 161 (Jackson, J., dissenting). The test has been whether the totality of circumstances deprived the defendant of a "free choice to admit, to
deny, or to refuse to answer," Lisenba v. California, 314 U.S. 219, 241, and whether physical or psychological coercion was of such a degree that "the
defendant's will was overborne at the time he confessed," Haynes v. Washington, 373 U.S. 503, 513; Lynumn v. Illinois, 372 U.S. 528, 534. The duration
and nature of incommunicado custody, the presence or absence of advice concerning the defendant's constitutional rights, and the granting or refusal of
requests to communicate with lawyers, relatives or friends have all been rightly regarded as important data bearing on the basic inquiry. See, e. g.,
Ashcraft v. Tennessee, 322 U.S. 143; Haynes v. Washington, 373 U.S. 503. 3 But it has never been suggested, until today, that such questioning was so
coercive and accused persons so lacking in hardihood that the very first response to the very first question following the commencement of custody
must be conclusively presumed to be the product of an overborne will.


If the rule announced today were truly based on a conclusion that all confessions resulting from custodial interrogation are coerced, then it would simply
have no rational foundation. Compare Tot v. United States, 319 U.S. 463, 466; United States v. Romano, 382 U.S. 136. A fortiori that would be true of the
extension of the rule to exculpatory statements, which the Court effects after a brief discussion of why, in the Court's view, they must be deemed
incriminatory but without any discussion of why they must be deemed coerced. See Wilson v. United States, 162 U.S. 613, 624. Even if one were to
postulate that the Court's concern is not that all confessions induced by police interrogation are coerced but rather that some such confessions are
coerced and present judicial procedures are believed to be inadequate to identify the confessions that are coerced and those that are not, it would still not
be essential to impose the rule that the Court has now fashioned. Transcripts or observers could be required, specific time limits, tailored to fit the cause,
could be imposed, or other devices could be utilized to reduce the chances that otherwise indiscernible coercion will produce an inadmissible
confession.

On the other hand, even if one assumed that there was an adequate factual basis for the conclusion that all confessions obtained during in-custody
interrogation are the product of compulsion, the rule propounded by the Court would still be irrational, for, apparently, it is only if the accused is also
warned of his right to counsel and waives both that right and the right against self-incrimination that the inherent compulsiveness of interrogation
disappears. But if the defendant may not answer without a warning a question such as "Where were you last night?" without having his answer be a
compelled one, how can the Court ever accept his negative answer to the question of whether he wants to consult his retained counsel or counsel whom
the court will appoint? And why if counsel is present and the accused nevertheless confesses, or counsel tells the accused to tell the truth, and that is
what the accused does, is the situation any less coercive insofar as the accused is concerned? The Court apparently realizes its dilemma of foreclosing
questioning without the necessary warnings but at the same time permitting the accused, sitting in the same chair in front of the same policemen, to
waive his right to consult an attorney. It expects, however, that the accused will not often waive the right; and if it is claimed that he has, the State faces a
severe, if not impossible burden of proof.

All of this makes very little sense in terms of the compulsion which the Fifth Amendment proscribes. That amendment deals with compelling the accused
himself. It is his free will that is involved. Confessions and incriminating admissions, as such, are not forbidden evidence; only those which are compelled
are banned. I doubt that the Court observes these distinctions today. By considering any answers to any interrogation to be compelled regardless of the
content and course of examination and by escalating the requirements to prove waiver, the Court not only prevents the use of compelled confessions but
for all practical purposes forbids interrogation except in the presence of counsel. That is, instead of confining itself to protection of the right against
compelled self-incrimination the Court has created a limited Fifth Amendment right to counsel -- or, as the Court expresses it, a "need for counsel to
protect the Fifth Amendment privilege . . . ." Ante, at 470. The focus then is not on the will of the accused but on the will of counsel and how much
influence he can have on the accused. Obviously there is no warrant in the Fifth Amendment for thus installing counsel as the arbiter of the privilege.

In sum, for all the Court's expounding on the menacing atmosphere of police interrogation procedures, it has failed to supply any foundation for the
conclusions it draws or the measures it adopts.

IV.

Criticism of the Court's opinion, however, cannot stop with a demonstration that the factual and textual bases for the rule it propounds are, at best, less
than compelling. Equally relevant is an assessment of the rule's consequences measured against community values. The Court's duty to assess the
consequences of its action is not satisfied by the utterance of the truth that a value of our system of criminal justice is "to respect the inviolability of the
human personality" and to require government to produce the evidence against the accused by its own independent labors. Ante, at 460. More than the
human dignity of the accused is involved; the human personality of others in the society must also be preserved. Thus the values reflected by the
privilege are not the sole desideratum; society's interest in the general security is of equal weight.

The obvious underpinning of the Court's decision is a deep-seated distrust of all confessions. As the Court declares that the accused may not be
interrogated without counsel present, absent a waiver of the right to counsel, and as the Court all but admonishes the lawyer to advise the accused to
remain silent, the result adds up to a judicial judgment that evidence from the accused should not be used against him in any way, whether compelled or
not. This is the not so subtle overtone of the opinion -- that it is inherently wrong for the police to gather evidence from the accused himself. And this is
precisely the nub of this dissent. I see nothing wrong or immoral, and certainly nothing unconstitutional, in the police's asking a suspect whom they have
reasonable cause to arrest whether or not he killed his wife or in confronting him with the evidence on which the arrest was based, at least where he has
been plainly advised that he may remain completely silent, see Escobedo v. Illinois, 378 U.S. 478, 499 (dissenting opinion). Until today, "the admissions
or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence." Brown v. Walker, 161
U.S. 591, 596; see also Hopt v. Utah, 110 U.S. 574, 584-585. Particularly when corroborated, as where the police have confirmed the accused's
disclosure of the hiding place of implements or fruits of the crime, such confessions have the highest reliability and significantly contribute to the certitude
with which we may believe the accused is guilty. Moreover, it is by no means certain that the process of confessing is injurious to the accused. To the
contrary it may provide psychological relief and enhance the prospects for rehabilitation.

This is not to say that the value of respect for the inviolability of the accused's individual personality should be accorded no weight or that all confessions
should be indiscriminately admitted. This Court has long read the Constitution to proscribe compelled confessions, a salutary rule from which there
should be no retreat. But I see no sound basis, factual or otherwise, and the Court gives none, for concluding that the present rule against the receipt of
coerced confessions is inadequate for the task of sorting out inadmissible evidence and must be replaced by the per se rule which is now imposed. Even
if the new concept can be said to have advantages of some sort over the present law, they are far outweighed by its likely undesirable impact on other
very relevant and important interests.

The most basic function of any government is to provide for the security of the individual and of his property. Lanzetta v. New Jersey, 306 U.S. 451, 455.
These ends of society are served by the criminal laws which for the most part are aimed at the prevention of crime. Without the reasonably effective
performance of the task of preventing private violence and retaliation, it is idle to talk about human dignity and civilized values.

The modes by which the criminal laws serve the interest in general security are many. First the murderer who has taken the life of another is removed
from the streets, deprived of his liberty and thereby prevented from repeating his offense. In view of the statistics on recidivism in this country 4 and of the
number of instances in which apprehension occurs only after repeated offenses, no one can sensibly claim that this aspect of the criminal law does not
prevent crime or contribute significantly to the personal security of the ordinary citizen.


Secondly, the swift and sure apprehension of those who refuse to respect the personal security and dignity of their neighbor unquestionably has its
impact on others who might be similarly tempted. That the criminal law is wholly or partly ineffective with a segment of the population or with many of
those who have been apprehended and convicted is a very faulty basis for concluding that it is not effective with respect to the great bulk of our citizens
or for thinking that without the criminal laws, or in the absence of their enforcement, there would be no increase in crime. Arguments of this nature are not
borne out by any kind of reliable evidence that I have seen to this date.

Thirdly, the law concerns itself with those whom it has confined. The hope and aim of modern penology, fortunately, is as soon as possible to return the
convict to society a better and more law-abiding man than when he left. Sometimes there is success, sometimes failure. But at least the effort is made,
and it should be made to the very maximum extent of our present and future capabilities.

The rule announced today will measurably weaken the ability of the criminal law to perform these tasks. It is a deliberate calculus to prevent
interrogations, to reduce the incidence of confessions and pleas of guilty and to increase the number of trials. 5 Criminal trials, no matter how efficient the
police are, are not sure bets for the prosecution, nor should they be if the evidence is not forthcoming. Under the present law, the prosecution fails to
prove its case in about 30% of the criminal cases actually tried in the federal courts. See Federal Offenders: 1964, supra, note 4, at 6 (Table 4), 59 (Table
1); Federal Offenders: 1963, supra, note 4, at 5 (Table 3); District of Columbia Offenders: 1963, supra, note 4, at 2 (Table 1). But it is something else
again to remove from the ordinary criminal case all those confessions which heretofore have been held to be free and voluntary acts of the accused and
to thus establish a new constitutional barrier to the ascertainment of truth by the judicial process. There is, in my view, every reason to believe that a good
many criminal defendants who otherwise would have been convicted on what this Court has previously thought to be the most satisfactory kind of
evidence will now, under this new version of the Fifth Amendment, either not be tried at all or will be acquitted if the State's evidence, minus the
confession, is put to the test of litigation.


I have no desire whatsoever to share the responsibility for any such impact on the present criminal process.

In some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him,
to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the
unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on
those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of their
neighbors similarly inclined. There is, of course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case.

Nor can this decision do other than have a corrosive effect on the criminal law as an effective device to prevent crime. A major component in its
effectiveness in this regard is its swift and sure enforcement. The easier it



is to get away with rape and murder, the less the deterrent effect on those who are inclined to attempt it. This is still good common sense. If it were not,
we should posthaste liquidate the whole law enforcement establishment as a useless, misguided effort to control human conduct.

And what about the accused who has confessed or would confess in response to simple, noncoercive questioning and whose guilt could not otherwise
be proved? Is it so clear that release is the best thing for him in every case? Has it so unquestionably been resolved that in each and every case it would
be better for him not to confess and to return to his environment with no attempt whatsoever to help him? I think not. It may well be that in many cases it
will be no less than a callous disregard for his own welfare as well as for the interests of his next victim.

There is another aspect to the effect of the Court's rule on the person whom the police have arrested on probable cause. The fact is that he may not be
guilty at all and may be able to extricate himself quickly and simply if he were told the circumstances of his arrest and were asked to explain. This effort,
and his release, must now await the hiring of a lawyer or his appointment by the court, consultation with counsel and then a session with the police or the
prosecutor. Similarly, where probable cause exists to arrest several suspects, as where the body of the victim is discovered in a house having several
residents, compare Johnson v. State, 238 Md. 140, 207 A. 2d 643 (1965), cert. denied, 382 U.S. 1013, it will often be true that a suspect may be cleared
only through the results of interrogation of other suspects. Here too the release of the innocent may be delayed by the Court's rule.

Much of the trouble with the Court's new rule is that it will operate indiscriminately in all criminal cases, regardless of the severity of the crime or the
circumstances involved. It applies to every defendant, whether the professional criminal or one committing a crime of momentary passion who is not part
and parcel of organized crime. It will slow down the investigation and the apprehension of confederates in those cases where time is of the essence,
such as kidnapping, see Brinegar v. United States, 338 U.S. 160, 183 (Jackson, J., dissenting); People v. Modesto, 62 Cal. 2d 436, 446, 398 P. 2d 753,
759 (1965), those involving the national security, see United States v. Drummond, 354 F.2d 132, 147 (C. A. 2d Cir. 1965) (en banc) (espionage case),
pet. for cert. pending, No. 1203, Misc., O. T. 1965; cf. Gessner v. United States, 354 F.2d 726, 730, n. 10 (C. A. 10th Cir. 1965) (upholding, in espionage
case, trial ruling that Government need not submit classified portions of interrogation transcript), and some of those involving organized crime. In the
latter context the lawyer who arrives may also be the lawyer for the defendant's colleagues and can be relied upon to insure that no breach of the
organization's security takes place even though the accused may feel that the best thing he can do is to cooperate.

At the same time, the Court's per se approach may not be justified on the ground that it provides a "bright line" permitting the authorities to judge in
advance whether interrogation may safely be pursued without jeopardizing the admissibility of any information obtained as a consequence. Nor can it be
claimed that judicial time and effort, assuming that is a relevant consideration, will be conserved because of the ease of application of the new rule.
Today's decision leaves open such questions as whether the accused was in custody, whether his statements were spontaneous or the product of
interrogation, whether the accused has effectively waived his rights, and whether nontestimonial evidence introduced at trial is the fruit of statements
made during a prohibited interrogation, all of which are certain to prove productive of uncertainty during investigation and litigation during prosecution. For
all these reasons, if further restrictions on police interrogation are desirable at this time, a more flexible approach makes much more sense than the
Court's constitutional straitjacket which forecloses more discriminating treatment by legislative or rule-making pronouncements.

Applying the traditional standards to the cases before the Court, I would hold these confessions voluntary. I would therefore affirm in Nos. 759, 760, and
761, and reverse in No. 584.