From the Voluntariness Standard to Miranda
From the Voluntariness Standard to Miranda.—Invocation by the Court of a self-incrimination standard for judging the fruits of police interrogation was no unheralded novelty in Miranda v. Arizona.304 The rationale of the confession cases changed over time to one closely approximating the foundation purposes the Court has attributed to the self-incrimination clause. Historically, the basis of the rule excluding coerced and involuntary confessions was their untrustworthiness, their unreliability.305 It appears that this basis informed the Court's judgment in the early state confession cases306 as it had in earlier cases from the lower federal courts.307 But in Lisenba v. California,308 Justice Roberts drew a distinction between the confession rule and the standard of due process. "[T]he fact that the confessions have been conclusively adjudged by the decision below to be admissible under State law, notwithstanding the circumstances under which they were made, does not answer the question whether due process was lacking. The aim of the rule that a confession is inadmissible unless it was voluntarily made is to exclude false evidence. Tests are invoked to determine whether the inducement to speak was such that there is a fair risk the confession is false… The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false." Over the next several years, while the Justices continued to use the terminology of voluntariness, the Court accepted at different times the different rationales of trustworthiness and constitutional fairness.309
304 384 U.S. 436 (1966).
305 3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE § 882, at 246 (3d ed. 1940).
Ultimately, however, those Justices who chose to ground the exclusionary rule on the latter consideration predominated, so that in Rogers v. Richmond310 Justice Frankfurter spoke for six other Justices in writing: "Our decisions under that [Fourteenth] Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charges against an accused out of his own mouth." Nevertheless, the Justice said in another case, "[n]o single litmus-paper test for constitutionally impermissible interrogation has been evolved."311 Three years later, however, in Malloy v. Hogan,312 in the process of applying the self-incrimination clause to the States, Justice Brennan for the Court reinterpreted the line of cases since Brown v. Mississippi313 to conclude that the Court had initially based its rulings on the common-law confession rationale, but that beginning with Lisenba v. California,314 a "federal standard" had been developed. The Court had engaged in a "shift [which] reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay." Today, continued Justice Brennan, "the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897," when Bram v. United States had announced that the self-incrimination clause furnished the basis for admitting or excluding evidence in federal courts.315
309 Compare Ashcraft v. Tennessee, 322 U.S. 143 (1944), with Lyons v. Oklahoma, 322 U.S. 596 (1944), and Malinski v. New York, 324 U.S. 401 (1945). In Watts v. Indiana, 338 U.S. 49 (1949), Harris v. South Carolina, 338 U.S. 68 (1949), and Turner v. Pennsylvania, 338 U.S. 62 (1949), five Justices followed the due process-fairness standard while four adhered to a trustworthiness rationale. See 338 U.S. at 57 (Justice Jackson concurring and dissenting). In Stein v. New York, 346 U.S. 156, 192 (1953), the trustworthiness rationale had secured the adherence of six Justices. The primary difference between the two standards is the admissibility under the trustworthiness standard of a coerced confession if its trustworthiness can be established, if, that is, it can be corroborated.
310 365 U.S. 534, 540-41 (1961). Similar expressions may be found in Spano v. New York, 360 U.S. 315 (1959), and Blackburn v. Alabama, 361 U.S. 199 (1960). See also Culombe v. Connecticut, 367 U.S. 568, 583 n.25 (1961), in which Justice Frankfurter, announcing the judgment of the Court, observed that "the conceptions underlying the rule excluding coerced confessions and the privilege again self-incrimination have become, to some extent, assimilated."
312 378 U.S. 1 (1964).
313 297 U.S. 278 (1936).
314 314 U.S. 219 (1941).
315 Malloy v. Hogan, 378 U.S. 1, 6-7 (1964). Protesting that this was "post facto reasoning at best," Justice Harlan contended that the "majority is simply wrong" in asserting that any of the state confession cases represented anything like a self-incrimination basis for the conclusions advanced. Id. at 17-19. Bram v. United States, 168 U.S. 532 (1897), is discussed under "Confessions: Police Interrogation, Due Process, and Self-Incrimination," supra.
One week after the decision in Malloy v. Hogan, the Court defined the rules of admissibility of confessions in different terms; while it continued to emphasize voluntariness, it did so in self-incrimination terms rather than in due process terms. In Escobedo v. Illinois,316 it held inadmissible the confession obtained from a suspect in custody who had repeatedly requested and had repeatedly been refused an opportunity to consult with his retained counsel, who was present at the police station seeking to gain access to Escobedo.317 While Escobedo appeared in the main to be a Sixth Amendment right-to-counsel case, the Court at several points emphasized, in terms that clearly implicated self-incrimination considerations, that the suspect had not been warned of his constitutional rights.318
316 378 U.S. 478 (1964). Joining Justice Goldberg in the majority were Chief Justice Warren and Justices Black, Douglas, and Brennan. Justices Clark, Harlan, Stewart, and White dissented. Id. at 492, 493, 495.
317 Previously, it had been held that a denial of a request to consult counsel was but one of the factors to be considered in assessing voluntariness. Crooker v. California, 357 U.S. 433 (1958); Cicenia v. Lagay, 357 U.S. 504 (1958). Chief Justice Warren and Justices Black, Douglas, and Brennan were prepared in these cases to impose a requirement of right to counsel per se. Post-indictment interrogation without the presence of counsel seemed doomed after Spano v. New York, 360 U.S. 315 (1959), and this was confirmed in Massiah v. United States, 377 U.S. 201 (1964). See discussion of "Custodial Interrogation" under Sixth Amendment, infra.