Escobedo v. Illinois, 378 US 478 Assignment # 7
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378 U.S. 478 (1964)
ESCOBEDO
v.
ILLINOIS.
No. 615.
Argued April 29, 1964.
Decided June 22, 1964.
CERTIORARI TO THE SUPREME COURT OF ILLINOIS. Supreme Court of United States.
Barry L. Kroll argued the cause for petitioner. With him on the bri ef was Donald M. Haskell.
James R. Thompson argued the cause for respondent. With him on the brie f were Daniel P. Ward and Elmer C. Kissane.
Bernard Weisberg argued the cause for the American Civil Liberties Union , as amicus curiae, urging reversal. With him on the
brief was Walter T. Fisher.
*479 MR. JUSTICE GOLDBERG delivered the opinion of the C ourt. 479
The critical question in this case is whether, under the circumstances, the refusal by the police to honor petitioner 's request to
consult with his lawyer during the course of an interroga tion constitutes a denial of "the Assistance of Counsel" in violation of the
Sixth Amendment to the Constitution as "made obligator y upon the States by the Fourteenth Amendment," Gideon
v. Wainwright,
372 U. S. 335, 342, and thereby renders inadmissible in a state criminal tr ial any incriminating statement elicited by the police
during the interrogation.
On the night of January 19, 1960, petitioner's brother -in-law was fatally shot. In the early hours of the next morning, at 2:30 a.m.,
petitioner was arrested without a warrant and interro gated. Petitioner made no statement to the police and was released at 5 that
afternoon pursuant to a state court writ of habeas corp us obtained by Mr. Warren Wolfson, a lawyer who had bee n retained by
petitioner.
On January 30, Benedict DiGerlando, who was then in p olice custody and who was later indicted for the murder a long with
petitioner, told the police that petitioner had fire d the fatal shots. Between 8 and 9 that evening, petit ioner and his sister, the
widow of the deceased, were arrested and taken to police headquarters. En route to the police station, the police "had
handcuffed the defendant behind his back," and "one of the arresting officers told defendant that DiGerlando had named him as
the one who shot" the deceased. Petitioner testified, w ithout contradiction, that the "detectives said they had us pretty well, up
pretty tight, and we might as well admit to this crime, " and that he replied, "I am sorry but I would like to have advice from my
lawyer." A police officer testified that although petit ioner was not formally charged "he was in custody" and "cou ldn't walk out the
door."
*480 Shortly after petitioner reached police headquarters, his retained lawyer arrived. The lawyer described the en suing events
in the following terms: 480
"On that day I received a phone call [from "the mother of another defendant"] and pursuant to that phone ca ll I went
to the Detective Bureau at 11th and State. The first p erson I talked to was the Sergeant on duty at the Burea u
Desk, Sergeant Pidgeon. I asked Sergeant Pidgeon for permission to speak to my client, Danny
Escobedo. . . .
Sergeant Pidgeon made a call to the Bureau lockup and informed me that the boy had been taken from the lockup
to the Homicide Bureau. This was between 9:30 and 10: 00 in the evening. Before I went anywhere, he called the
Homicide Bureau and told them there was an attorney w aiting to see
Escobedo. He told me I could not see him.
Then I went upstairs to the Homicide Bureau. There wer e several Homicide Detectives around and I talked to
them. I identified myself as
Escobedo's attorney and asked permission to see him. They said I coul d not. . . . The
police officer told me to see Chief Flynn who was on dut y. I identified myself to Chief Flynn and asked permission
to see my client. He said I could not. . . . I think it was approximately 11:00 o'clock. He said I couldn't see him 3/6/2017Escobedo v. Illinois, 378 US 478 - Supreme Court 1964 - Google Scholar
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because they hadn't completed questioning. . . . [F]or a second or two I spotted him in an office in the Homicide
Bureau. The door was open and I could see through the office. . . . I waved to him and he waved back and then the
door was closed, by one of the officers at Homicide.
[1] There were four or five officers milling *481 around the
Homicide Detail that night. As to whether I talked to Captain Flynn any later that day, I waited around for another
hour or two and went back again and renewed by [ sic] request to see my client. He again told me I could no t. . . . I
filed an official complaint with Commissioner Phelan o f the Chicago Police Department. I had a conversation w ith
every police officer I could find. I was told at Homicide that I couldn't see him and I would have to get a writ of
habeas corpus. I left the Homicide Bureau and from the Detective Bureau at 11th and State at approximately 1:0 0
A.M. [Sunday morning] I had no opportunity to talk to my client that night. I quoted to Captain Flynn the Section of
the Criminal Code which allows an attorney the right t o see his client."
[2]
481
Petitioner testified that during the course of the interrogation he repeatedly asked to speak to his lawyer and that the police said
that his lawyer "didn't want to see" him. The testimony of the police officers confirmed these accounts in substantia l detail.
Notwithstanding repeated requests by each, petitioner an d his retained lawyer were afforded no opportunity to consult during the
course of the entire interrogation. At one point, as previously noted, petitioner and his attorney came into e ach other's view for a
few moments but the attorney was quickly ushered away. Pet itioner testified "that he heard a detective telling the attorney the
latter would not be allowed to talk to [him] `until they
*482 were done' " and that he heard the attorney being r efused permission
to remain in the adjoining room. A police officer test ified that he had told the lawyer that he could not se e petitioner until "we were
through interrogating" him. 482
There is testimony by the police that during the interr ogation, petitioner, a 22-year-old of Mexican extraction with no record of
previous experience with the police, "was handcuffed"
[3] in a standing position and that he "was nervous, he had circles under
his eyes and he was upset" and was "agitated" because "he had not slept well in over a week."
It is undisputed that during the course of the interro gation Officer Montejano, who "grew up" in petitione r's neighborhood, who
knew his family, and who uses "Spanish language in [his] police work," conferred alone with petitioner "for about a quarter of an
hour. . . ." Petitioner testified that the officer sai d to him "in Spanish that my sister and I could go home if I pinned it on Benedict
DiGerlando," that "he would see to it that we would go home and be held only as witnesses, if anything, if we had made a
statement against DiGerlando . . . , that we would be able to go home that night." Petitioner testified that he made the statement in
issue because of this assurance. Officer Montejano denied o ffering any such assurance.
A police officer testified that during the interrogati on the following occurred:
"I informed him of what DiGerlando told me and when I did, he told me that DiGerlando was [lying] and I said,
`Would you care to tell DiGerlando that?' and he said, `Yes, I will.' So, I
*483 brought . . . Escobedo in and he
confronted DiGerlando and he told him that he was lyin g and said, `I didn't shoot Manuel, you did it.' " 483
In this way, petitioner, for the first time, admitted to some knowledge of the crime. After that he made a dditional statements further
implicating himself in the murder plot. At this point an Assistant State's Attorney, Theodore J. Cooper, was sum moned "to take" a
statement. Mr. Cooper, an experienced lawyer who was assig ned to the Homicide Division to take "statements from some
defendants and some prisoners that they had in custody," "took" petitioner's statement by asking carefully framed questions
apparently designed to assure the admissibility into eviden ce of the resulting answers. Mr. Cooper testified that he did not advise
petitioner of his constitutional rights, and it is undisp uted that no one during the course of the interrogation so advised him.
Petitioner moved both before and during trial to sup press the incriminating statement, but the motions were denied. Petitioner
was convicted of murder and he appealed the conviction.
The Supreme Court of Illinois, in its original opinio n of February 1, 1963, held the statement inadmissible and reversed the
conviction. The court said:
"[I]t seems manifest to us, from the undisputed evidence and the circumstances surrounding defendant at the time
of his statement and shortly prior thereto, that the de fendant understood he would be permitted to go home if he
gave the statement and would be granted an immunity f rom prosecution."
Compare Lynumn
v. Illinois, 372 U. S. 528 . 3/6/2017Escobedo v. Illinois, 378 US 478 - Supreme Court 1964 - Google Scholar
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The State petitioned for, and the court granted, rehearing. The court then affirmed the conviction. It sai d: "[T]he *484 officer denied
making the promise and the trier of fact believed him. We find no reason for disturbing the trial court's finding that the confession
was voluntary."
[4] 28 Ill. 2d 41, 45-46, 190 N. E. 2d 825, 827 . The court also held, on the authority of this Court' s decisions in
Crooker
v. California, 357 U. S. 433, and Cicenia v. Lagay, 357 U. S. 504, that the confession was admissible even though "it was
obtained after he had requested the assistance of counsel, which request was denied." 28 Ill. 2d, at 46, 190 N. E. 2d, at 827
. We
granted a writ of certiorari to consider whether the p etitioner's statement was constitutionally admissible at his trial. 375 U. S. 902.
We conclude, for the reasons stated below, that it was no t and, accordingly, we reverse the judgment of conviction.
484
In Massiah v. United States, 377 U. S. 201, this Court observed that "a Constitution which guaran tees a defendant the aid of
counsel at . . . trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely
extrajudicial proceeding. Anything less . . . might deny a defendant `effective representation by counsel at the only stage when
*485 legal aid and advice would help him.' " Id., at 204, quoting DOUGLAS, J., concurring in Spano v. New York, 360 U. S. 315,
326 .
485
The interrogation here was conducted before petitioner was formally indicted. But in the context of this case, that fact should
make no difference. When petitioner requested, and was denied, an opportunity to consult with his lawyer, the investigation had
ceased to be a general investigation of "an unsolved crime ." Spano
v. New York, 360 U. S. 315, 327 (STEWART, J., concurring) .
Petitioner had become the accused, and the purpose of th e interrogation was to "get him" to confess his guilt despite his
constitutional right not to do so. At the time of his a rrest and throughout the course of the interrogation, the police told petitioner
that they had convincing evidence that he had fired the f atal shots. Without informing him of his absolute right to remain silent in
the face of this accusation, the police urged him to make a statement.
[5] As this Court observed many years ago:
"It cannot be doubted that, placed in the position in which the accused was when the statement was made to him
that the other suspected person had charged him with cri me, the result was to produce upon his mind the fear that
if he remained silent it would be considered an admissio n of guilt, and therefore render certain his being
committed for trial as the guilty person, and it cannot be conceived that the converse impression would not also
have naturally
*486 arisen, that by denying there was hope of removing the suspicion from himself." Bram v.
United States, 168 U. S. 532, 562 .
486
Petitioner, a layman, was undoubtedly unaware that und er Illinois law an admission of "mere" complicity in the murder plot was
legally as damaging as an admission of firing of the fat al shots. Illinois
v. Escobedo , 28 Ill. 2d 41, 190 N. E. 2d 825 . The "guiding
hand of counsel" was essential to advise petitioner of hi s rights in this delicate situation. Powell
v. Alabama, 287 U. S. 45, 69 .
This was the "stage when legal aid and advice" were most critical to petitioner. Massiah
v. United States, supra, at 204 . It was a
stage surely as critical as was the arraignment in Hamilton
v. Alabama, 368 U. S. 52, and the preliminary hearing in White v.
Maryland, 373 U. S. 59 . What happened at this interrogation could certainly "affect the whole trial," Hamilton v. Alabama, supra, at
54 , since rights "may be as irretrievably lost, if not then a nd there asserted, as they are when an accused represente d by counsel
waives a right for strategic purposes." Ibid. It would exalt form over substance to make the right to counsel, under these
circumstances, depend on whether at the time of the inte rrogation, the authorities had secured a formal indictment. Petitioner
had, for all practical purposes, already been charged wit h murder.
The New York Court of Appeals, whose decisions this Court cited with approval in Massiah,
377 U. S. 201, at 205, has recently
recognized that, under circumstances such as those here, no m eaningful distinction can be drawn between interrogation of an
accused before and after formal indictment. In People
v. Donovan, 13 N. Y. 2d 148, 193 N. E. 2d 628, that court, in an opinion by
Judge Fuld, held that a "confession taken from a defenda nt, during a period of detention [prior to indictment], after his attorney
had requested and been denied access
*487 to him" could not be used against him in a criminal tr ial. [6] Id., at 151, 193 N. E. 2d,
at 629. The court observed that it "would be highly in congruous if our system of justice permitted the district at torney, the lawyer
representing the State, to extract a confession from the accused while his own lawyer, seeking to speak with him, was kept from
him by the police." Id., at 152, 193 N. E. 2d, at 629.
[7]
487
In Gideon v. Wainwright, 372 U. S. 335, we held that every person accused of a crime, whether sta te or federal, is entitled to a
lawyer at trial.
[8] The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation;
and the "right to use counsel at the formal trial [wou ld be] a very hollow thing [if], for all practical purposes, the conviction is
already assured by pretrial examination." In re Groban,
352 U. S. *488 330, 344 (BLACK, J., dissenting) .[9] "One can imagine a
cynical prosecutor saying: `Let them have the most illustriou s counsel, now. They can't escape the noose. There is nothing that
counsel can do for them at the trial.' " Ex parte Sullivan,
107 F. Supp. 514, 517-518 .
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It is argued that if the right to counsel is afforded prior to indictment, the number of confessions obtained b y the police will
diminish significantly, because most confessions are obtained during the period between arrest and indictment,
[10] and "any
lawyer worth his salt will tell the suspect in no uncertai n terms to make no statement to police under any circumst ances." Watts
v.
Indiana, 338 U. S. 49, 59 (Jackson, J., concurring in part and di ssenting in part) . This argument, of course, cuts two ways. The fact
that many confessions are obtained during this period po ints up its critical nature as a "stage when legal aid and advice" are
surely needed. Massiah
v. United States, supra, at 204 ; Hamilton v. Alabama, supra ; White v. Maryland, supra . The right to
counsel would indeed be hollow if it began at a perio d when few confessions were obtained. There is necessarily a direct
relationship between the importance of a stage to the police in their quest for a confession and the criticalne ss of that stage to the
accused in his need for legal advice. Our Constitution, un like some others, strikes the balance in favor of the right of the accused
to be advised by his lawyer of his privilege against self-i ncrimination. See Note, 73 Yale L. J. 1000, 1048-1051 (1964).
We have learned the lesson of history, ancient and mode rn, that a system of criminal law enforcement
*489 which comes to
depend on the "confession" will, in the long run, be less reliable
[11] and more subject to abuses [12] than a system which depends
on extrinsic evidence independently secured through skillfu l investigation. As Dean Wigmore so wisely said:
489
"[A ]ny system of administration which permits the prosecution t o trust habitually to compulsory self-disclosure as a
source of proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and
to be satisfied with an incomplete investigation of the other sources. The exercise of the power to extract answers
begets a forgetfulness of the just limitations of that p ower. The simple and peaceful process of questioning bree ds
a readiness to resort to bullying and to physical force and torture. If there is a right to an answer, there soon seems
to be a right to the expected answer,— that is, to a con fession of guilt. Thus the legitimate use grows into the unjust
abuse; ultimately, the innocent are jeopardized by the encroachments of a bad system. Such seems to have been
the course of experience in those legal systems where the p rivilege was not recognized." 8 Wigmore, Evidence
(3d ed. 1940), 309. (Emphasis in original.)
*490 This Court also has recognized that "history amply shows th at confessions have often been extorted to save law
enforcement officials the trouble and effort of obtain ing valid and independent evidence . . . ." Haynes
v. Washington, 373 U. S.
503, 519 .
490
We have also learned the companion lesson of history that no system of criminal justice can, or should, survive if it comes to
depend for its continued effectiveness on the citizens' abdi cation through unawareness of their constitutional rights. No system
worth preserving should have to fear that if an accused is permitted to consult with a lawyer , he will become aware of, and
exercise, these rights.
[13] If the exercise of constitutional rights will thwart th e effectiveness of a system of law enforcement, then
there is something very wrong with that system.
[14]
We hold, therefore, that where, as here, the investi gation is no longer a general inquiry into an unsolved crime but has begun to
focus on a particular suspect, the suspect
*491 has been taken into police custody, the police carry out a process of
interrogations that lends itself to eliciting incrimina ting statements, the suspect has requested and been denie d an opportunity to
consult with his lawyer, and the police have not effectivel y warned him of his absolute constitutional right to remain silent, the
accused has been denied "the Assistance of Counsel" in viola tion of the Sixth Amendment to the Constitution as "made
obligatory upon the States by the Fourteenth Amendment ," Gideon
v. Wainwright, 372 U. S., at 342, and that no statement elicited
by the police during the interrogation may be used aga inst him at a criminal trial.
491
Crooker v. California, 357 U. S. 433, does not compel a contrary result. In that case the Cour t merely rejected the absolute rule
sought by petitioner, that "every state denial of a requ est to contact counsel [is] an infringement of the constit utional right without
regard to the circumstances of the case. " Id., at 440. (Emphasis in original.) In its place, the fol lowing rule was announced:
"[S]tate refusal of a request to engage counsel violates due process not only if the accused is deprived of counsel
at trial on the merits, . . . but also if he is deprived of counsel for any part of th e pretrial proceedings, provided that
he is so prejudiced thereby as to infect his subsequent tr ial with an absence of `that fundamental fairness
essential to the very concept of justice. . . .' The latt er determination necessarily depends upon all the
circumstances of the case." 357 U. S., at 439-440
. (Emphasis added.)
The Court, applying "these principles" to "the sum total of the circumstances [there] during the time petitioner was without
counsel," id., at 440, concluded that he had not been fundamentally prejudiced by the denial of his request for counsel. Among
the critical circumstances which distinguish that case from t his one are that the petitioner there, but not here, was explicitly 3/6/2017Escobedo v. Illinois, 378 US 478 - Supreme Court 1964 - Google Scholar
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advised by the police of his constitutional right to remain silent and *492 not to "say anything" in response to the questions, id., at
437, and that petitioner there, but not here, was a well-educated man who had studied criminal law while a ttending law school for
a year. The Court's opinion in Cicenia
v. Lagay, 357 U. S. 504, decided the same day, merely said that the "contention that
petitioner had a constitutional right to confer with co unsel is disposed of by Crooker
v. California . . . ." That case adds nothing,
therefore, to Crooker. In any event, to the extent that Cicenia or Crooker may be inconsistent with the principles announced today,
they are not to be regarded as controlling.
[15]
492
Nothing we have said today affects the powers of the pol ice to investigate "an unsolved crime," Spano v. New York, 360 U. S.
315, 327 (STEWART, J., concurring) , by gathering information from witnesses and by other "proper investigative efforts." Haynes
v. Washington, 373 U. S. 503, 519 . We hold only that when the process shifts from investiga tory to accusatory—when its focus is
on the accused and its purpose is to elicit a confession— our adversary system begins to operate, and, under the circumstances
here, the accused must be permitted to consult with his l awyer.
The judgment of the Illinois Supreme Court is reversed and the case remanded for proceedings not inconsistent wi th this opinion.
Reversed and remanded.
MR. JUSTICE HARLAN, dissenting.
I would affirm the judgment of the Supreme Court of Illinois on the basis of Cicenia
v. Lagay, 357 U. S. 504, *493 decided by this
Court only six years ago. Like my Brother WHITE, post, p. 495, I think the rule announced today is most ill-co nceived and that it
seriously and unjustifiably fetters perfectly legitimate me thods of criminal law enforcement. 493
MR. JUSTICE STEWART, dissenting.
I think this case is directly controlled by Cicenia
v. Lagay, 357 U. S. 504, and I would therefore affirm the judgment.
Massiah
v. United States, 377 U. S. 201, is not in point here. In that case a federal grand ju ry had indicted Massiah. He had
retained a lawyer and entered a formal plea of not g uilty. Under our system of federal justice an indictment and arraignment are
followed by a trial, at which the Sixth Amendment gua rantees the defendant the assistance of counsel.
[*] But Massiah was
released on bail, and thereafter agents of the Federa l Government deliberately elicited incriminating stateme nts from him in the
absence of his lawyer. We held that the use of these state ments against him at his trial denied him the basic protections of the
Sixth Amendment guarantee. Putting to one side the fa ct that the case now before us is not a federal case, the vital fact remains
that this case does not involve the deliberate interroga tion of a defendant after the initiation of judicial proceedings against him.
The Court disregards this basic difference between the pr esent case and Massiah's, with the bland assertion that "th at fact should
make no difference." Ante, p. 485.
It is "that fact," I submit, which makes all the differ ence. Under our system of criminal justice the institution of formal, meaningful
judicial proceedings, by way of indictment, information , or arraignment, marks the
*494 point at which a criminal investigation has
ended and adversary proceedings have commenced. It is at thi s point that the constitutional guarantees attach which pertain to a
criminal trial. Among those guarantees are the right t o a speedy trial, the right of confrontation, and the right to trial by jury.
Another is the guarantee of the assistance of counsel. Gideon
v. Wainwright, 372 U. S. 335 ; Hamilton v. Alabama, 368 U. S. 52 ;
White
v. Maryland, 373 U. S. 59 .
494
The confession which the Court today holds inadmissible was a voluntary one. It was given during the course of a perfectly
legitimate police investigation of an unsolved murder. T he Court says that what happened during this investigatio n "affected" the
trial. I had always supposed that the whole purpose of a police investigation of a murder was to "affect" the trial of the murderer,
and that it would be only an incompetent, unsuccessful, or corrupt investigation which would not do so. The Cour t further says
that the Illinois police officers did not advise the peti tioner of his "constitutional rights" before he confesse d to the murder. This
Court has never held that the Constitution requires the police to give any "advice" under circumstances such as these.
Supported by no stronger authority than its own rhetori c, the Court today converts a routine police investigation of an unsolved
murder into a distorted analogue of a judicial trial. It imports into this investigation constitutional concep ts historically applicable
only after the onset of formal prosecutorial proceedings. By doing so, I think the Court perverts those precious co nstitutional
guarantees, and frustrates the vital interests of society i n preserving the legitimate and proper function of honest and purposeful
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Like my Brother CLARK, I cannot escape the logic of my Brother WHITE's conclusions as to the extraordinary implications which
emanate from the Court's opinion in
*495 this case, and I share their views as to the untold and highly unfortunate impact today's
decision may have upon the fair administration of crimina l justice. I can only hope we have completely misunderstood what the
Court has said. 495
MR. JUSTICE WHITE, with whom MR. JUSTICE CLARK and MR . JUSTICE STEWART join, dissenting.
In Massiah
v. United States, 377 U. S. 201, the Court held that as of the date of the indictment the prosecution is disentitled to
secure admissions from the accused. The Court now moves that date back to the time when the prosecution begins to "focus" on
the accused. Although the opinion purports to be limite d to the facts of this case, it would be naive to think that the new
constitutional right announced will depend upon whethe r the accused has retained his own counsel, cf. Gideon
v. Wainright, 372
U. S. 335 ; Griffin v. Illinois, 351 U. S. 12 ; Douglas v. California, 372 U. S. 353, or has asked to consult with counsel in the course
of interrogation. Cf. Carnley
v. Cochran, 369 U. S. 506 . At the very least the Court holds that once the accused b ecomes a
suspect and, presumably, is arrested, any admission made to the police thereafter is inadmissible in evidence unless the
accused has waived his right to counsel. The decision is thu s another major step in the direction of the goal which the Court
seemingly has in mind—to bar from evidence all admissions ob tained from an individual suspected of crime, whether
involuntarily made or not. It does of course put us one step "ahead" of the English judges who have had the go od sense to leave
the matter a discretionary one with the trial court.
[*] I reject this step and *496 the invitation to go farther which the Court has now
issued. 496
By abandoning the voluntary-involuntary test for admissibil ity of confessions, the Court seems driven by the notion tha t it is
uncivilized law enforcement to use an accused's own admissions against him at his trial. It attempts to find a home for this new
and nebulous rule of due process by attaching it to the right to counsel guaranteed in the federal system by the Sixth Amendment
and binding upon the States by virtue of the due process guarantee of the Fourteenth Amendment. Gideon
v. Wainwright, supra .
The right to counsel now not only entitles the accused to counsel's advice and aid in preparing for trial but stands as an
impenetrable barrier to any interrogation once the accu sed has become a suspect. From that very moment apparently h is right to
counsel attaches, a rule wholly unworkable and impossible t o administer unless police cars are equipped with public defenders
and undercover agents and police informants have defense counsel at their side. I would not abandon the Court's prior cases
defining with some care and analysis the circumstances requi ring the presence or aid of counsel and substitute the amorphous
and wholly unworkable principle that counsel is constitut ionally required whenever he would or could be helpful. Hamilton
v.
Alabama, 368 U. S. 52 ; White v. Maryland, 373 U. S. 59 ; Gideon v. *497 Wainwright, supra . These cases dealt with the
requirement of counsel at proceedings in which definable rights could be won or lost, not with stages where probative evidence
might be obtained. Under this new approach one might just as well argue that a potential defendant is constitutionally entitled to
a lawyer before, not after, he commits a crime, since it is then that crucial incriminating evidence is put within the reach of the
Government by the would-be accused. Until now there simpl y has been no right guaranteed by the Federal Constitution to be
free from the use at trial of a voluntary admission made prior to indictment. 497
It is incongruous to assume that the provision for counsel i n the Sixth Amendment was meant to amend or supersede the self-
incrimination provision of the Fifth Amendment, which i s now applicable to the States. Malloy
v. Hogan, 378 U. S. 1 . That
amendment addresses itself to the very issue of incriminati ng admissions of an accused and resolves it by proscribing on ly
compelled statements. Neither the Framers, the constitut ional language, a century of decisions of this Court nor Professor
Wigmore provides an iota of support for the idea that an accused has an absolute constitutional right not to an swer even in the
absence of compulsion—the constitutional right not to incr iminate himself by making voluntary disclosures.
Today's decision cannot be squared with other provisions of the Constitution which, in my view, define the system of criminal
justice this Court is empowered to administer. The Fourt h Amendment permits upon probable cause even compulsory se arches
of the suspect and his possessions and the use of the fruits o f the search at trial, all in the absence of counsel. The Fifth
Amendment and state constitutional provisions authorize, indeed require, inquisitorial grand jury proceedings at which a
potential defendant, in the absence of counsel,
*498 is shielded against no more than compulsory incrimination . Mulloney v.
United States, 79 F. 2d 566, 578 (C. A. 1st Cir.) ; United States v. Benjamin, 120 F. 2d 521, 522 (C. A. 2d Cir.) ; United States v.
Scully, 225 F. 2d 113, 115 (C. A. 2d Cir.) ; United States v. Gilboy, 160 F. Supp. 442 (D. C. M. D. Pa.) . A grand jury witness, who
may be a suspect, is interrogated and his answers, at least until today, are admissible in evidence at trial. And these provisions
have been thought of as constitutional safeguards to per sons suspected of an offense. Furthermore, until now, the Constitution
has permitted the accused to be fingerprinted and to b e identified in a line-up or in the courtroom itself.
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The Court chooses to ignore these matters and to rely on the virtues and morality of a system of criminal law enforcement which
does not depend on the "confession." No such judgment is t o be found in the Constitution. It might be appropriate for a legislature
to provide that a suspect should not be consulted during a criminal investigation; that an accused should never be called before
a grand jury to answer, even if he wants to, what may w ell be incriminating questions; and that no person, whether he be a
suspect, guilty criminal or innocent bystander, should be pu t to the ordeal of responding to orderly noncompulsory inquiry by the
State. But this is not the system our Constitution requir es. The only "inquisitions" the Constitution forbids are those which compel
incrimination.
Escobedo's statements were not compelled and the Court does not hold that they were.
This new American judges' rule, which is to be applied i n both federal and state courts, is perhaps thought to be a necessary
safeguard against the possibility of extorted confessions. To this extent it reflects a deep-seated distrust of law enforcement
officers everywhere, unsupported by relevant data or curren t material based upon our own
*499 experience. Obviously law
enforcement officers can make mistakes and exceed their auth ority, as today's decision shows that even judges can do, but I
have somewhat more faith than the Court evidently has in the ability and desire of prosecutors and of the power of the appellate
courts to discern and correct such violations of the law. 499
The Court may be concerned with a narrower matter: the unknowing defendant who responds to police questioning because he
mistakenly believes that he must and that his admissions will not be used against him. But this worry hardly calls for the
broadside the Court has now fired. The failure to in form an accused that he need not answer and that his an swers may be used
against him is very relevant indeed to whether the disclo sures are compelled. Cases in this Court, to say the least, have never
placed a premium on ignorance of constitutional rights. If an accused is told he must answer and does not know bet ter, it would
be very doubtful that the resulting admissions could be use d against him. When the accused has not been informed of his rights
at all the Court characteristically and properly looks very cl osely at the surrounding circumstances. See Ward
v. Texas, 316 U. S.
547 ; Haley v. Ohio, 332 U. S. 596 ; Payne v. Arkansas, 356 U. S. 560 . I would continue to do so. But in this case Danny Escobedo
knew full well that he did not have to answer and knew full well that his lawyer had advised him not to answer.
I do not suggest for a moment that law enforcement wil l be destroyed by the rule announced today. The need fo r peace and order
is too insistent for that. But it will be crippled and its task made a great deal more difficult, all in my op inion, for unsound, unstated
reasons, which can find no home in any of the provisions of the Constitution.
[1]
Petitioner testified that this ambiguous gesture " could have meant most anything," but that he "took it upon [his] own to think that [the lawyer was
telling him] not to say anything," and that the law yer "wanted to talk" to him.
[2]
The statute then in effect provided in pertinent p art that: "All public officers . . . having the custody of any person . . . restrained of his liberty for
any alleged cause whatever, shall, except in cases of imminent danger of escape, admit any practicing attorney . . . whom such person . . . may
desire to see or consult . . ." Ill. Rev. Stat. (19 59), c. 38, § 477. Repealed as of Jan. 1, 1964, by Act approved Aug. 14, 1963, H. B. No. 851.
[3]
The trial judge justified the handcuffing on the g round that it "is ordinary police procedure."
[4]
Compare Haynes v. Washington, 373 U. S. 503, 515 (decided on the same day as the decision of the Il linois Supreme Court here), where we
said:
"Our conclusion is in no way foreclosed, as the Sta te contends, by the fact that the state trial judge or the jury may have reached a different result
on this issue.
"It is well settled that the duty of constitutional adjudication resting upon this Court requires that the question whether the Due Process Clause of the
Fourteenth Amendment has been violated by admission into evidence of a coerced confession be the subject of an independent determination
here, see, e. g., Ashcraft
v. Tennessee, 322 U. S. 143, 147-148 ; `we cannot escape the responsibility of making ou r own examination of the
record,' Spano
v. New York, 360 U. S. 315, 316 ." (Emphasis in original.)
[5]
Although there is testimony in the record that pet itioner and his lawyer had previously discussed wha t petitioner should do in the event of
interrogation, there is no evidence that they discu ssed what petitioner should, or could, do in the face of a false accusation that he had fired the fatal
bullets.
[6]
The English Judges' Rules also recognize that a fu nctional rather than a formal test must be applied and that, under circumstances such as
those here, no special significance should be attac hed to formal indictment. The applicable Rule does not permit the police to question an accused,
except in certain extremely limited situations not relevant here, at any time after the defendant "has been charged or informed that he may be
prosecuted. " [1964] Crim. L. Rev. 166-170 (emphasis supplied). Although voluntary statements obtained in violation of these rules are not
automatically excluded from evidence the judge may, in the exercise of his discretion, exclude them. "Recent cases suggest that perhaps the judges
have been tightening up [and almost] inevitably, th e effect of the new Rules will be to stimulate this tendency." Id., at 182.
[7]
Canon 9 of the American Bar Association's Canon of Professional Ethics provides that: 3/6/2017Escobedo v. Illinois, 378 US 478 - Supreme Court 1964 - Google Scholar
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"A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake
to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid
everything that may tend to mislead a party not rep resented by counsel, and he should not undertake to advise him as to the law." See Broeder,
Wong Sun v. United States: A Study in Faith and Hop e, 42 Neb. L. Rev. 483, 599-604.
[8]
Twenty-two States including Illinois, urged us so to hold.
[9]
The Soviet criminal code does not permit a lawyer to be present during the investigation. The Soviet trial has thus been aptly described as "an
appeal from the pretrial investigation." Feifer, Ju stice in Moscow (1964), 86.
[10]
See Barrett, Police Practices and the Law—From Arr est to Release or Charge, 50 Cal. L. Rev. 11, 43 (1962).
[11]
See Committee Print, Subcommittee to Investigate A dministration of the Internal Security Act, Senate Committee on the Judiciary, 85th Cong.,
1st Sess., reporting and analyzing the proceedings at the XXth Congress of the Communist Party of the Soviet Union, February 25, 1956, exposing
the false confessions obtained during the Stalin pu rges of the 1930's. See also Miller
v. United States, 320 F. 2d 767, 772-773 (opinion of Chief
Judge Bazelon); Lifton, Thought Reform and the Psyc hology of Totalism (1961); Rogge, Why Men Confess ( 1959); Schein, Coercive Persuasion
(1961).
[12]
See Stephen, History of the Criminal Law, quoted i n 8 Wigmore, Evidence (3d ed. 1940), 312; Report an d Recommendations of the
Commissioners' Committee on Police Arrests for Inve stigation, District of Columbia (1962).
[13]
Cf. Report of Attorney General's Committee on Pove rty and the Administration of Federal Criminal Justice (1963), 10-11: "The survival of our
system of criminal justice and the values which it advances depends upon a constant, searching, and cr eative questioning of official decisions and
assertions of authority at all stages of the proces s. . . . Persons [denied access to counsel] are inc apable of providing the challenges that are
indispensable to satisfactory operation of the syst em. The loss to the interests of accused individual s, occasioned by these failures, are great and
apparent. It is also clear that a situation in whic h persons are required to contest a serious accusat ion but are denied access to the tools of contest
is offensive to fairness and equity. Beyond these c onsiderations, however, is the fact that [this situation is] detrimental to the proper functioning of
the system of justice and that the loss in vitality of the adversary system, thereby occasioned, signi ficantly endangers the basic interests of a free
community."
[14]
The accused may, of course, intelligently and know ingly waive his privilege against self-incrimination and his right to counsel either at a pretrial
stage or at the trial. See Johnson
v. Zerbst, 304 U. S. 458 . But no knowing and intelligent waiver of any cons titutional right can be said to have
occurred under the circumstances of this case.
[15]
The authority of Cicenia v. Lagay, 357 U. S. 504, and Crooker v. California, 357 U. S. 433, was weakened by the subsequent decisions of this
Court in Hamilton
v. Alabama, 368 U. S. 52, White v. Maryland, 373 U. S. 59, and Massiah v. United States, 377 U. S. 201 (as the dissenting
opinion in the last-cited case recognized) .
[*]
"In all criminal prosecutions, the accused shall e njoy the right . . . to have the Assistance of Coun sel for his defence."
[*]
"[I]t seems from reported cases that the judges ha ve given up enforcing their own rules, for it is no longer the practice to exclude evidence
obtained by questioning in custody. . . . A traditi onal principle of `fairness' to criminals, which ha s quite possibly lost some of the reason for its
existence, is maintained in words while it is disre garded in fact. . . .
"The reader may be expecting at this point a vigoro us denunciation of the police and of the judges, and a plea for a return to the Judges' Rules as
interpreted in 1930. What has to be considered, how ever, is whether these Rules are a workable part of the machinery of justice. Perhaps the truth
is that the Rules have been abandoned, by tacit con sent, just because they are an unreasonable restriction upon the activities of the police in
bringing criminals to book." Williams, Questioning by the Police: Some Practical Considerations, [1960 ] Crim. L. Rev. 325, 331-332. See also [1964]
Crim. L. Rev. 161-182.
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