CERTIORARI TO THE SUPREME COURT OF ARIZONA.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
MR. JUSTICE HARLAN,
whom MR. JUSTICE STEWART and MR. JUSTICE WHITE join, dissenting.
MR. JUSTICE WHITE, with whom MR. JUSTICE HARLAN and MR. JUSTICE STEWART join, dissenting.
MR. JUSTICE CLARK dissenting
In each of these cases the defendant while in police custody was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. None of the defendants was given a full and effective warning of his rights at the outset of the interrogation process. In all four cases the questioning elicited oral admissions, and in three of them signed statements as well, which were admitted at their trials. All defendants were convicted and all convictions, except in No. 584, were affirmed on appeal. Held:
1. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination. Pp. 444-491.
(a) The atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating and works to undermine the privilege against self-incrimination. Unless adequate preventive measures are taken to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. Pp. 445-458.
(b) The privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system and guarantees to the individual the "right to remain silent unless he chooses to speak in the unfettered exercise of his own will," during a period of custodial interrogation as well as in the courts or during the course of other official investigations. Pp. 458-465.
(c) The decision in Escobedo v. Illinois, 378 U.S. 478, stressed the need for protective devices to make the process of police interrogation conform to the dictates of the privilege. Pp. 465-466.
(d) In the absence of other effective measures the following procedures to safeguard the Fifth Amendment privilege must be observed: The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him. Pp. 467-473.
(e) If the individual indicates, prior to or during questioning, that he wishes to remain silent, the interrogation must cease; if he states that he wants an attorney, the questioning must cease until an attorney is present. Pp. 473-474.
(f) Where an interrogation is conducted without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his right to counsel. P. 475.
(g) Where the individual answers some questions during incustody interrogation he has not waived his privilege and may invoke his right to remain silent thereafter. Pp. 475-476.
(h) The warnings required and the waiver needed are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement, inculpatory or exculpatory, made by a defendant. Pp. 476-477.
2. The limitations on the interrogation process required for the protection of the individual's constitutional rights should not cause an undue interference with a proper system of law enforcement, as demonstrated by the procedures of the FBI and the safeguards afforded in other jurisdictions. Pp. 479-491.
3. In each of these cases the statements were obtained under circumstances that did not meet constitutional standards for protection of the privilege against self-incrimination. Pp. 491-499.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
The cases before us raise questions which go
to the roots of our concepts of American criminal jurisprudence:
the restraints society must observe consistent with the Federal
Constitution in prosecuting individuals for crime. More specifically,
we deal with the admissibility of statements obtained from an
individual who is subjected to custodial police interrogation
and the necessity for procedures which assure that the individual
is accorded his privilege under the Fifth Amendment to the Constitution
not to be compelled to incriminate himself.
We dealt with certain phases of this problem
recently in Escobedo v. Illinois, 378 U.S. 478 (1964). There,
as in the four cases before us, law enforcement officials took
the defendant into custody and interrogated him in a police station
for the purpose of obtaining a confession. The police did not
effectively advise him of his right to remain silent or of his
right to consult with his attorney. Rather, they confronted him
with an alleged accomplice who accused him of having perpetrated
a murder. When the defendant denied the accusation and said "I
didn't shoot Manuel, you did it," they handcuffed him and
took him to an interrogation room. There, while handcuffed and
standing, he was questioned for four hours until he confessed.
During this interrogation, the police denied his request to speak
to his attorney, and they prevented his retained attorney, who
had come to the police station, from consulting with him. At his
trial, the State, over his objection, introduced the confession
against him. We held that the statements thus made were constitutionally
This case has been the subject of judicial
interpretation and spirited legal debate since it was decided
two years ago. Both state and federal courts, in assessing its
implications, have arrived at varying conclusions. 1
A wealth of scholarly material has been written tracing its ramifications
and underpinnings. 2 Police
and prosecutor have speculated on its range and desirability.
3 We granted certiorari in
these cases, 382 U.S. 924, 925, 937, in order further to explore
some facets of the problems, thus exposed, of applying the privilege
against self-incrimination to in-custody interrogation, and to
give concrete constitutional guidelines for law enforcement agencies
and courts to follow.
We start here, as we did in Escobedo, with
the premise that our holding is not an innovation in our jurisprudence,
but is an application of principles long recognized and applied
in other settings. We have undertaken a thorough re-examination
of the Escobedo decision and the principles it announced, and
we reaffirm it. That case was but an explication of basic rights
that are enshrined in our Constitution -- that "No person
. . . shall be compelled in any criminal case to be a witness
against himself," and that "the accused shall . . .
have the Assistance of Counsel" -- rights which were put
in jeopardy in that case through official overbearing. These precious
rights were fixed in our Constitution only after centuries of
persecution and struggle. And in the words of Chief Justice Marshall,
they were secured "for ages to come, and . . . designed to
approach immortality as nearly as human institutions can approach
it," Cohens v. Virginia, 6 Wheat. 264, 387 (1821).
Over 70 years ago, our predecessors on this
Court eloquently stated:
"The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which [have] long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, [were] not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment." Brown v. Walker, 161 U.S. 591, 596-597 (1896).
In stating the obligation of the judiciary
to apply these constitutional rights, this Court declared in Weems
v. United States, 217 U.S. 349, 373 (1910):
". . . our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction."
This was the spirit in which we delineated,
in meaningful language, the manner in which the constitutional
rights of the individual could be enforced against overzealous
police practices. It was necessary in Escobedo, as here, to insure
that what was proclaimed in the Constitution had not become but
a "form of words," Silverthorne Lumber Co. v. United
States, 251 U.S. 385, 392 (1920), in the hands of government officials.
And it is in this spirit, consistent with our role as judges,
that we adhere to the principles of Escobedo today.
Our holding will be spelled out with some specificity
in the pages which follow but briefly stated it is this: 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. By custodial interrogation, we mean
questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom
of action in any significant way. 4
As for the procedural safeguards to be employed, unless other
fully effective means are devised to inform accused persons of
their right of silence and to assure a continuous opportunity
to exercise it, the following measures are required. 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 against him, and that he has a right to the presence
of an attorney, either retained or appointed. The defendant may
waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly and intelligently. If, however, he indicates
in any manner and at any stage of the process that he wishes to
consult with an attorney before speaking there can be no questioning.
Likewise, if the individual is alone and indicates in any manner
that he does not wish to be interrogated, the police may not question
him. The mere fact that he may have answered some questions or
volunteered some statements on his own does not deprive him of
the right to refrain from answering any further inquiries until
he has consulted with an attorney and thereafter consents to be
The constitutional issue we decide in each
of these cases is the admissibility of statements obtained from
a defendant questioned while in custody or otherwise deprived
of his freedom of action in any significant way. In each, the
defendant was questioned by police officers, detectives, or a
prosecuting attorney in a room in which he was cut off from the
outside world. In none of these cases was the defendant given
a full and effective warning of his rights at the outset of the
interrogation process. In all the cases, the questioning elicited
oral admissions, and in three of them, signed statements as well
which were admitted at their trials. They all thus share salient
features -- incommunicado interrogation of individuals in a police-dominated
atmosphere, resulting in self-incriminating statements without
full warnings of constitutional rights.
An understanding of the nature and setting
of this in-custody interrogation is essential to our decisions
today. The difficulty in depicting what transpires at such interrogations
stems from the fact that in this country they have largely taken
place incommunicado. From extensive factual studies undertaken
in the early 1930's, including the famous Wickersham Report to
Congress by a Presidential Commission, it is clear that police
violence and the "third degree" flourished at that time.
5 In a series of cases decided
by this Court long after these studies, the police resorted to
physical brutality -- beating, hanging, whipping -- and to sustained
and protracted questioning incommunicado in order to extort confessions.
6 The Commission on Civil Rights
in 1961 found much evidence to indicate that "some policemen
still resort to physical force to obtain confessions," 1961
Comm'n on Civil Rights Rep., Justice, pt. 5, 17. The use of physical
brutality and violence is not, unfortunately, relegated to the
past or to any part of the country. Only recently in Kings County,
New York, the police brutally beat, kicked and placed lighted
cigarette butts on the back of a potential witness under interrogation
for the purpose of securing a statement incriminating a third
party. People v. Portelli, 15 N. Y. 2d 235, 205 N. E. 2d 857,
257 N. Y. S. 2d 931 (1965). 7
The examples given above are undoubtedly the
exception now, but they are sufficiently widespread to be the
object of concern. Unless a proper limitation upon custodial interrogation
is achieved -- such as these decisions will advance -- there can
be no assurance that practices of this nature will be eradicated
in the foreseeable future. The conclusion of the Wickersham Commission
Report, made over 30 years ago, is still pertinent:
"To the contention that the third degree is necessary to get the facts, the reporters aptly reply in the language of the present Lord Chancellor of England (Lord Sankey): 'It is not admissible to do a great right by doing a little wrong. . . . It is not sufficient to do justice by obtaining a proper result by irregular or improper means.' Not only does the use of the third degree involve a flagrant violation of law by the officers of the law, but it involves also the dangers of false confessions, and it tends to make police and prosecutors less zealous in the search for objective evidence. As the New York prosecutor quoted in the report said, 'It is a short cut and makes the police lazy and unenterprising.' Or, as another official quoted remarked: 'If you use your fists, you are not so likely to use your wits.' We agree with the conclusion expressed in the report, that 'The third degree brutalizes the police, hardens the prisoner against society, and lowers the esteem in which the administration of justice is held by the public.'" IV National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement 5 (1931).
Again we stress that the modern practice of
in-custody interrogation is psychologically rather than physically
oriented. As we have stated before, "Since Chambers v. Florida,
309 U.S. 227, this Court has recognized that coercion can be mental
as well as physical, and that the blood of the accused is not
the only hallmark of an unconstitutional inquisition." Blackburn
v. Alabama, 361 U.S. 199, 206 (1960). Interrogation still takes
place in privacy. Privacy results in secrecy and this in turn
results in a gap in our knowledge as to what in fact goes on in
the interrogation rooms. A valuable source of information about
present police practices, however, may be found in various police
manuals and texts which document procedures employed with success
in the past, and which recommend various other effective tactics.
8 These texts are used by law
enforcement agencies themselves as guides. 9
It should be noted that these texts professedly present the most
enlightened and effective means presently used to obtain statements
through custodial interrogation. By considering these texts and
other data, it is possible to describe procedures observed and
noted around the country.
The officers are told by the manuals that the "principal psychological factor contributing to a successful interrogation is privacy -- being alone with the person under interrogation." 10 The efficacy of this tactic has been explained as follows:
"If at all practicable, the interrogation should take place in the investigator's office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law." 11
To highlight the isolation and unfamiliar surroundings,
the manuals instruct the police to display an air of confidence
in the suspect's guilt and from outward appearance to maintain
only an interest in confirming certain details. The guilt of the
subject is to be posited as a fact. The interrogator should direct
his comments toward the reasons why the subject committed the
act, rather than court failure by asking the subject whether he
did it. Like other men, perhaps the subject has had a bad family
life, had an unhappy childhood, had too much to drink, had an
unrequited desire for women. The officers are instructed to minimize
the moral seriousness of the offense, 12
to cast blame on the victim or on society. 13
These tactics are designed to put the subject in a psychological
state where his story is but an elaboration of what the police
purport to know already -- that he is guilty. Explanations to
the contrary are dismissed and discouraged.
The texts thus stress that the major qualities
an interrogator should possess are patience and perseverance.
One writer describes the efficacy of these characteristics in
"In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject's necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be used only when the guilt of the subject appears highly probable." 14
The manuals suggest that the suspect be offered
legal excuses for his actions in order to obtain an initial admission
of guilt. Where there is a suspected revenge-killing, for example,
the interrogator may say:
"Joe, you probably didn't go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that's why you carried a gun -- for your own protection. You knew him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication that he was about to pull a gun on you, and that's when you had to act to save your own life. That's about it, isn't it, Joe?" 15
Having then obtained the admission of shooting,
the interrogator is advised to refer to circumstantial evidence
which negates the self-defense explanation. This should enable
him to secure the entire story. One text notes that "Even
if he fails to do so, the inconsistency between the subject's
original denial of the shooting and his present admission of at
least doing the shooting will serve to deprive him of a self-defense
'out' at the time of trial." 16
When the techniques described above prove unavailing,
the texts recommend they be alternated with a show of some hostility.
One ploy often used has been termed the "friendly-unfriendly"
or the "Mutt and Jeff" act: ". . . In this technique,
two agents are employed. Mutt, the relentless investigator, who
knows the subject is guilty and is not going to waste any time.
He's sent a dozen men away for this crime and he's going to send
the subject away for the full term. Jeff, on the other hand, is
obviously a kindhearted man. He has a family himself. He has a
brother who was involved in a little scrape like this. He disapproves
of Mutt and his tactics and will arrange to get him off the case
if the subject will cooperate. He can't hold Mutt off for very
long. The subject would be wise to make a quick decision. The
technique is applied by having both investigators present while
Mutt acts out his role. Jeff may stand by quietly and demur at
some of Mutt's tactics. When Jeff makes his plea for cooperation,
Mutt is not present in the room." 17
The interrogators sometimes are instructed
to induce a confession out of trickery. The technique here is
quite effective in crimes which require identification or which
run in series. In the identification situation, the interrogator
may take a break in his questioning to place the subject among
a group of men in a line-up. "The witness or complainant
(previously coached, if necessary) studies the line-up and confidently
points out the subject as the guilty party." 18
Then the questioning resumes "as though there were now no
doubt about the guilt of the subject." A variation on this
technique is called the "reverse line-up":
"The accused is placed in a line-up, but this time he is identified by several fictitious witnesses or victims who associated him with different offenses. It is expected that the subject will become desperate and confess to the offense under investigation in order to escape from the false accusations." 19
The manuals also contain instructions for police
on how to handle the individual who refuses to discuss the matter
entirely, or who asks for an attorney or relatives. The examiner
is to concede him the right to remain silent. "This usually
has a very undermining effect. First of all, he is disappointed
in his expectation of an unfavorable reaction on the part of the
interrogator. Secondly, a concession of this right to remain silent
impresses the subject with the apparent fairness of his interrogator."
20 After this psychological
conditioning, however, the officer is told to point out the incriminating
significance of the suspect's refusal to talk:
"Joe, you have a right to remain silent. That's your privilege and I'm the last person in the world who'll try to take it away from you. If that's the way you want to leave this, O. K. But let me ask you this. Suppose you were in my shoes and I were in yours and you called me in to ask me about this and I told you, 'I don't want to answer any of your questions.' You'd think I had something to hide, and you'd probably be right in thinking that. That's exactly what I'll have to think about you, and so will everybody else. So let's sit here and talk this whole thing over." 21
Few will persist in their initial refusal to
talk, it is said, if this monologue is employed correctly.
In the event that the subject wishes to speak
to a relative or an attorney, the following advice is tendered:
"The interrogator should respond by suggesting that the subject first tell the truth to the interrogator himself rather than get anyone else involved in the matter. If the request is for an attorney, the interrogator may suggest that the subject save himself or his family the expense of any such professional service, particularly if he is innocent of the offense under investigation. The interrogator may also add, 'Joe, I'm only looking for the truth, and if you're telling the truth, that's it. You can handle this by yourself.'" 22
From these representative samples of interrogation
techniques, the setting prescribed by the manuals and observed
in practice becomes clear. In essence, it is this: To be alone
with the subject is essential to prevent distraction and to deprive
him of any outside support. The aura of confidence in his guilt
undermines his will to resist. He merely confirms the preconceived
story the police seek to have him describe. Patience and persistence,
at times relentless questioning, are employed. To obtain a confession,
the interrogator must "patiently maneuver himself or his
quarry into a position from which the desired objective may be
attained." 23 When normal
procedures fail to produce the needed result, the police may resort
to deceptive stratagems such as giving false legal advice. It
is important to keep the subject off balance, for example, by
trading on his insecurity about himself or his surroundings. The
police then persuade, trick, or cajole him out of exercising his
Even without employing brutality, the "third
degree" or the specific stratagems described above, the very
fact of custodial interrogation exacts a heavy toll on individual
liberty and trades on the weakness of individuals. 24
This fact may be illustrated simply by referring to three confession
cases decided by this Court in the Term immediately preceding
our Escobedo decision. In Townsend v. Sain, 372 U.S. 293 (1963),
the defendant was a 19-year-old heroin addict, described as a
"near mental defective," id., at 307-310. The defendant
in Lynumn v. Illinois, 372 U.S. 528 (1963), was a woman who confessed
to the arresting officer after being importuned to "cooperate"
in order to prevent her children from being taken by relief authorities.
This Court as in those cases reversed the conviction of a defendant
in Haynes v. Washington, 373 U.S. 503 (1963), whose persistent
request during his interrogation was to phone his wife or attorney.
25 In other settings, these
individuals might have exercised their constitutional rights.
In the incommunicado police-dominated atmosphere, they succumbed.
In the cases before us today, given this background,
we concern ourselves primarily with this interrogation atmosphere
and the evils it can bring. In No. 759, Miranda v. Arizona, the
police arrested the defendant and took him to a special interrogation
room where they secured a confession. In No. 760, Vignera v. New
York, the defendant made oral admissions to the police after interrogation
in the afternoon, and then signed an inculpatory statement upon
being questioned by an assistant district attorney later the same
evening. In No. 761, Westover v. United States, the defendant
was handed over to the Federal Bureau of Investigation by local
authorities after they had detained and interrogated him for a
lengthy period, both at night and the following morning. After
some two hours of questioning, the federal officers had obtained
signed statements from the defendant. Lastly, in No. 584, California
v. Stewart, the local police held the defendant five days in the
station and interrogated him on nine separate occasions before
they secured his inculpatory statement.
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. In each of
the cases, the defendant was thrust into an unfamiliar atmosphere
and run through menacing police interrogation procedures. The
potentiality for compulsion is forcefully apparent, for example,
in Miranda, where the indigent Mexican defendant was a seriously
disturbed individual with pronounced sexual fantasies, and in
Stewart, in which the defendant was an indigent Los Angeles Negro
who had dropped out of school in the sixth grade. 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.
It is obvious that such an interrogation environment
is created for no purpose other than to subjugate the individual
to the will of his examiner. This atmosphere carries its own badge
of intimidation. To be sure, this is not physical intimidation,
but it is equally destructive of human dignity. 26
The current practice of incommunicado interrogation is at odds
with one of our Nation's most cherished principles -- that the
individual may not be compelled to incriminate himself. Unless
adequate protective devices are employed to dispel the compulsion
inherent in custodial surroundings, no statement obtained from
the defendant can truly be the product of his free choice.
From the foregoing, we can readily perceive
an intimate connection between the privilege against self-incrimination
and police custodial questioning. It is fitting to turn to history
and precedent underlying the Self-Incrimination Clause to determine
its applicability in this situation.
We sometimes forget how long it has taken to
establish the privilege against self-incrimination, the sources
from which it came and the fervor with which it was defended.
Its roots go back into ancient times. 27
Perhaps the critical historical event shedding light on its origins
and evolution was the trial of one John Lilburn, a vocal anti-Stuart
Leveller, who was made to take the Star Chamber Oath in 1637.
The oath would have bound him to answer to all questions posed
to him on any subject. The Trial of John Lilburn and John Wharton,
3 How. St. Tr. 1315 (1637). He resisted the oath and declaimed
the proceedings, stating:
"Another fundamental right I then contended for, was, that no man's conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so." Haller & Davies, The Leveller Tracts 1647-1653, p. 454 (1944).
On account of the Lilburn Trial, Parliament
abolished the inquisitorial Court of Star Chamber and went further
in giving him generous reparation. The lofty principles to which
Lilburn had appealed during his trial gained popular acceptance
in England. 28 These sentiments
worked their way over to the Colonies and were implanted after
great struggle into the Bill of Rights. 29
Those who framed our Constitution and the Bill of Rights were
ever aware of subtle encroachments on individual liberty. They
knew that "illegitimate and unconstitutional practices get
their first footing . . . by silent approaches and slight deviations
from legal modes of procedure." Boyd v. United States, 116
U.S. 616, 635 (1886). The privilege was elevated to constitutional
status and has always been "as broad as the mischief against
which it seeks to guard." Counselman v. Hitchcock, 142 U.S.
547, 562 (1892). We cannot depart from this noble heritage.
Thus we may view the historical development
of the privilege as one which groped for the proper scope of governmental
power over the citizen. As a "noble principle often transcends
its origins," the privilege has come rightfully to be recognized
in part as an individual's substantive right, a "right to
a private enclave where he may lead a private life. That right
is the hallmark of our democracy." United States v. Grunewald,
233 F.2d 556, 579, 581-582 (Frank, J., dissenting), rev'd, 353
U.S. 391 (1957). We have recently noted that the privilege against
self-incrimination -- the essential mainstay of our adversary
system -- is founded on a complex of values, Murphy v. Waterfront
Comm'n, 378 U.S. 52, 55-57, n. 5 (1964); Tehan v. Shott, 382 U.S.
406, 414-415, n. 12 (1966). All these policies point to one overriding
thought: the constitutional foundation underlying the privilege
is the respect a government -- state or federal -- must accord
to the dignity and integrity of its citizens. To maintain a "fair
state-individual balance," to require the government "to
shoulder the entire load," 8 Wigmore, Evidence 317 (McNaughton
rev. 1961), to respect the inviolability of the human personality,
our accusatory system of criminal justice demands that the government
seeking to punish an individual produce the evidence against him
by its own independent labors, rather than by the cruel, simple
expedient of compelling it from his own mouth. Chambers v. Florida,
309 U.S. 227, 235-238 (1940). In sum, the privilege is fulfilled
only when the person is guaranteed the right "to remain silent
unless he chooses to speak in the unfettered exercise of his own
will." Malloy v. Hogan, 378 U.S. 1, 8 (1964).
The question in these cases is whether the
privilege is fully applicable during a period of custodial interrogation.
In this Court, the privilege has consistently been accorded a
liberal construction. Albertson v. SACB, 382 U.S. 70, 81 (1965);
Hoffman v. United States, 341 U.S. 479, 486 (1951); Arndstein
v. McCarthy, 254 U.S. 71, 72-73 (1920); Counselman v. Hitchcock,
142 U.S. 547, 562 (1892). We are satisfied that all the principles
embodied in the privilege apply to informal compulsion exerted
by law-enforcement officers during in-custody questioning. An
individual swept from familiar surroundings into police custody,
surrounded by antagonistic forces, and subjected to the techniques
of persuasion described above cannot be otherwise than under compulsion
to speak. As a practical matter, the compulsion to speak in the
isolated setting of the police station may well be greater than
in courts or other official investigations, where there are often
impartial observers to guard against intimidation or trickery.
This question, in fact, could have been taken
as settled in federal courts almost 70 years ago, when, in Bram
v. United States, 168 U.S. 532, 542 (1897), this Court held:
"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 . . . commanding that no person 'shall be compelled in any criminal case to be a witness against himself.'"
In Bram, the Court reviewed the British and
American history and case law and set down the Fifth Amendment
standard for compulsion which we implement today:
"Much of the confusion which has resulted from the effort to deduce from the adjudged cases what would be a sufficient quantum of proof to show that a confession was or was not voluntary, has arisen from a misconception of the subject to which the proof must address itself. The rule is not that in order to render a statement admissible the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that from the causes, which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement, when but for the improper influences he would have remained silent. . . ." 168 U.S., at 549. And see, id., at 542.
The Court has adhered to this reasoning. In
1924, Mr. Justice Brandeis wrote for a unanimous Court in reversing
a conviction resting on a compelled confession, Wan v. United
States, 266 U.S. 1. He stated:
"In the federal courts, the requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was, in fact, voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise. Bram v. United States, 168 U.S. 532." 266 U.S., at 14-15.
In addition to the expansive historical development
of the privilege and the sound policies which have nurtured its
evolution, judicial precedent thus clearly establishes its application
to incommunicado interrogation. In fact, the Government concedes
this point as well established in No. 761, Westover v. United
States, stating: "We have no doubt . . . that it is possible
for a suspect's Fifth Amendment right to be violated during in-custody
questioning by a law-enforcement officer." 31
Because of the adoption by Congress of Rule
5 (a) of the Federal Rules of Criminal Procedure, and this Court's
effectuation of that Rule in McNabb v. United States, 318 U.S.
332 (1943), and Mallory v. United States, 354 U.S. 449 (1957),
we have had little occasion in the past quarter century to reach
the constitutional issues in dealing with federal interrogations.
These supervisory rules, requiring production of an arrested person
before a commissioner "without unnecessary delay" and
excluding evidence obtained in default of that statutory obligation,
were nonetheless responsive to the same considerations of Fifth
Amendment policy that unavoidably face us now as to the States.
In McNabb, 318 U.S., at 343-344, and in Mallory, 354 U.S., at
455-456, we recognized both the dangers of interrogation and the
appropriateness of prophylaxis stemming from the very fact of
interrogation itself. 32
Our decision in Malloy v. Hogan, 378 U.S. 1
(1964), necessitates an examination of the scope of the privilege
in state cases as well. In Malloy, we squarely held the privilege
applicable to the States, and held that the substantive standards
underlying the privilege applied with full force to state court
proceedings. There, as in Murphy v. Waterfront Comm'n, 378 U.S.
52 (1964), and Griffin v. California, 380 U.S. 609 (1965), we
applied the existing Fifth Amendment standards to the case before
us. Aside from the holding itself, the reasoning in Malloy made
clear what had already become apparent -- that the substantive
and procedural safeguards surrounding admissibility of confessions
in state cases had become exceedingly exacting, reflecting all
the policies embedded in the privilege, 378 U.S., at 7-8. 33
The voluntariness doctrine in the state cases, as Malloy indicates,
encompasses all interrogation practices which are likely to exert
such pressure upon an individual as to disable him from making
a free and rational choice. 34
The implications of this proposition were elaborated in our decision
in Escobedo v. Illinois, 378 U.S. 478, decided one week after
Malloy applied the privilege to the States.
Our holding there stressed the fact that the
police had not advised the defendant of his constitutional privilege
to remain silent at the outset of the interrogation, and we drew
attention to that fact at several points in the decision, 378
U.S., at 483, 485, 491. This was no isolated factor, but an essential
ingredient in our decision. The entire thrust of police interrogation
there, as in all the cases today, was to put the defendant in
such an emotional state as to impair his capacity for rational
judgment. The abdication of the constitutional privilege -- the
choice on his part to speak to the police -- was not made knowingly
or competently because of the failure to apprise him of his rights;
the compelling atmosphere of the in-custody interrogation, and
not an independent decision on his part, caused the defendant
A different phase of the Escobedo decision
was significant in its attention to the absence of counsel during
the questioning. There, as in the cases today, we sought a protective
device to dispel the compelling atmosphere of the interrogation.
In Escobedo, however, the police did not relieve the defendant
of the anxieties which they had created in the interrogation rooms.
Rather, they denied his request for the assistance of counsel,
378 U.S., at 481, 488, 491. 35
This heightened his dilemma, and made his later statements the
product of this compulsion. Cf. Haynes v. Washington, 373 U.S.
503, 514 (1963). The denial of the defendant's request for his
attorney thus undermined his ability to exercise the privilege
-- to remain silent if he chose or to speak without any intimidation,
blatant or subtle. The presence of counsel, in all the cases before
us today, would be the adequate protective device necessary to
make the process of police interrogation conform to the dictates
of the privilege. His presence would insure that statements made
in the government-established atmosphere are not the product of
It was in this manner that Escobedo explicated
another facet of the pre-trial privilege, noted in many of the
Court's prior decisions: the protection of rights at trial. 36
That counsel is present when statements are taken from an individual
during interrogation obviously enhances the integrity of the fact-finding
processes in court. The presence of an attorney, and the warnings
delivered to the individual, enable the defendant under otherwise
compelling circumstances to tell his story without fear, effectively,
and in a way that eliminates the evils in the interrogation process.
Without the protections flowing from adequate warnings and the
rights of counsel, "all the careful safeguards erected around
the giving of testimony, whether by an accused or any other witness,
would become empty formalities in a procedure where the most compelling
possible evidence of guilt, a confession, would have already been
obtained at the unsupervised pleasure of the police." Mapp
v. Ohio, 367 U.S. 643, 685 (1961) (HARLAN, J., dissenting). Cf.
Pointer v. Texas, 380 U.S. 400 (1965).
Today, then, there can be no doubt that the
Fifth Amendment privilege is available outside of criminal court
proceedings and serves to protect persons in all settings in which
their freedom of action is curtailed in any significant way from
being compelled to incriminate themselves. We have concluded that
without proper safeguards the process of in-custody interrogation
of persons suspected or accused of crime contains inherently compelling
pressures which work to undermine the individual's will to resist
and to compel him to speak where he would not otherwise do so
freely. In order to combat these pressures and to permit a full
opportunity to exercise the privilege against self-incrimination,
the accused must be adequately and effectively apprised of his
rights and the exercise of those rights must be fully honored.
It is impossible for us to foresee the potential
alternatives for protecting the privilege which might be devised
by Congress or the States in the exercise of their creative rule-making
capacities. Therefore we 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.
Our decision in no way creates a constitutional straitjacket which
will handicap sound efforts at reform, nor is it intended to have
this effect. We encourage Congress and the States to continue
their laudable search for increasingly effective ways of protecting
the rights of the individual while promoting efficient enforcement
of our criminal laws. However, unless we are shown other procedures
which are at least as effective in apprising accused persons of
their right of silence and in assuring a continuous opportunity
to exercise it, the following safeguards must be observed.
At the outset, if a person in custody is to
be subjected to interrogation, he must first be informed in clear
and unequivocal terms that he has the right to remain silent.
For those unaware of the privilege, the warning is needed simply
to make them aware of it -- the threshold requirement for an intelligent
decision as to its exercise. More important, such a warning is
an absolute prerequisite in overcoming the inherent pressures
of the interrogation atmosphere. It is not just the subnormal
or woefully ignorant who succumb to an interrogator's imprecations,
whether implied or expressly stated, that the interrogation will
continue until a confession is obtained or that silence in the
face of accusation is itself damning and will bode ill when presented
to a jury. 37 Further, the
warning will show the individual that his interrogators are prepared
to recognize his privilege should he choose to exercise it.
The Fifth Amendment privilege is so fundamental
to our system of constitutional rule and the expedient of giving
an adequate warning as to the availability of the privilege so
simple, we will not pause to inquire in individual cases whether
the defendant was aware of his rights without a warning being
given. Assessments of the knowledge the defendant possessed, based
on information as to his age, education, intelligence, or prior
contact with authorities, can never be more than speculation;
38 a warning is a clearcut
fact. More important, whatever the background of the person interrogated,
a warning at the time of the interrogation is indispensable to
overcome its pressures and to insure that the individual knows
he is free to exercise the privilege at that point in time.
The warning of the right to remain silent must
be accompanied by the explanation that anything said can and will
be used against the individual in court. This warning is needed
in order to make him aware not only of the privilege, but also
of the consequences of forgoing it. It is only through an awareness
of these consequences that there can be any assurance of real
understanding and intelligent exercise of the privilege. Moreover,
this warning may serve to make the individual more acutely aware
that he is faced with a phase of the adversary system -- that
he is not in the presence of persons acting solely in his interest.
The circumstances surrounding in-custody interrogation
can operate very quickly to overbear the will of one merely made
aware of his privilege by his interrogators. Therefore, the right
to have counsel present at the interrogation is indispensable
to the protection of the Fifth Amendment privilege under the system
we delineate today. Our aim is to assure that the individual's
right to choose between silence and speech remains unfettered
throughout the interrogation process. A once-stated warning, delivered
by those who will conduct the interrogation, cannot itself suffice
to that end among those who most require knowledge of their rights.
A mere warning given by the interrogators is not alone sufficient
to accomplish that end. Prosecutors themselves claim that the
admonishment of the right to remain silent without more "will
benefit only the recidivist and the professional." Brief
for the National District Attorneys Association as amicus curiae,
p. 14. Even preliminary advice given to the accused by his own
attorney can be swiftly overcome by the secret interrogation process.
Cf. Escobedo v. Illinois, 378 U.S. 478, 485, n. 5. Thus, the need
for counsel to protect the Fifth Amendment privilege comprehends
not merely a right to consult with counsel prior to questioning,
but also to have counsel present during any questioning if the
defendant so desires.
The presence of counsel at the interrogation
may serve several significant subsidiary functions as well. If
the accused decides to talk to his interrogators, the assistance
of counsel can mitigate the dangers of untrustworthiness. With
a lawyer present the likelihood that the police will practice
coercion is reduced, and if coercion is nevertheless exercised
the lawyer can testify to it in court. The presence of a lawyer
can also help to guarantee that the accused gives a fully accurate
statement to the police and that the statement is rightly reported
by the prosecution at trial. See Crooker v. California, 357 U.S.
433, 443-448 (1958) (DOUGLAS, J., dissenting).
An individual need not make a pre-interrogation
request for a lawyer. While such request affirmatively secures
his right to have one, his failure to ask for a lawyer does not
constitute a waiver. No effective waiver of the right to counsel
during interrogation can be recognized unless specifically made
after the warnings we here delineate have been given. The accused
who does not know his rights and therefore does not make a request
may be the person who most needs counsel. As the California Supreme
Court has aptly put it:
"Finally, we must recognize that the imposition of the requirement for the request would discriminate against the defendant who does not know his rights. The defendant who does not ask for counsel is the very defendant who most needs counsel. We cannot penalize a defendant who, not understanding his constitutional rights, does not make the formal request and by such failure demonstrates his helplessness. To require the request would be to favor the defendant whose sophistication or status had fortuitously prompted him to make it." People v. Dorado, 62 Cal. 2d 338, 351, 398 P. 2d 361, 369-370, 42 Cal. Rptr. 169, 177-178 (1965) (Tobriner, J.).
In Carnley v. Cochran, 369 U.S. 506, 513 (1962),
we stated: "It is settled that where the assistance of counsel
is a constitutional requisite, the right to be furnished counsel
does not depend on a request." This proposition applies with
equal force in the context of providing counsel to protect an
accused's Fifth Amendment privilege in the face of interrogation.
39 Although the role of counsel
at trial differs from the role during interrogation, the differences
are not relevant to the question whether a request is a prerequisite.
Accordingly we hold that an individual held
for interrogation must be clearly informed that he has the right
to consult with a lawyer and to have the lawyer with him during
interrogation under the system for protecting the privilege we
delineate today. As with the warnings of the right to remain silent
and that anything stated can be used in evidence against him,
this warning is an absolute prerequisite to interrogation. No
amount of circumstantial evidence that the person may have been
aware of this right will suffice to stand in its stead. Only through
such a warning is there ascertainable assurance that the accused
was aware of this right.
If an individual indicates that he wishes the
assistance of counsel before any interrogation occurs, the authorities
cannot rationally ignore or deny his request on the basis that
the individual does not have or cannot afford a retained attorney.
The financial ability of the individual has no relationship to
the scope of the rights involved here. The privilege against self-incrimination
secured by the Constitution applies to all individuals. The need
for counsel in order to protect the privilege exists for the indigent
as well as the affluent. In fact, were we to limit these constitutional
rights to those who can retain an attorney, our decisions today
would be of little significance. The cases before us as well as
the vast majority of confession cases with which we have dealt
in the past involve those unable to retain counsel. 40
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. 41
Denial of counsel to the indigent at the time of interrogation
while allowing an attorney to those who can afford one would be
no more supportable by reason or logic than the similar situation
at trial and on appeal struck down in Gideon v. Wainwright, 372
U.S. 335 (1963), and Douglas v. California, 372 U.S. 353 (1963).
In order fully to 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. Without this additional warning, the admonition
of the right to consult with counsel would often be understood
as meaning only that he can consult with a lawyer if he has one
or has the funds to obtain one. The warning of a right to counsel
would be hollow if not couched in terms that would convey to the
indigent -- the person most often subjected to interrogation --
the knowledge that he too has a right to have counsel present.
42 As with the warnings of
the right to remain silent and of the general right to counsel,
only by effective and express explanation to the indigent of this
right can there be assurance that he was truly in a position to
exercise it. 43
Once warnings have been given, the subsequent
procedure is clear. If the individual indicates in any manner,
at any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease. 44
At this point he has shown that he intends to exercise his Fifth
Amendment privilege; any statement taken after the person invokes
his privilege cannot be other than the product of compulsion,
subtle or otherwise. Without the right to cut off questioning,
the setting of in-custody interrogation operates on the individual
to overcome free choice in producing a statement after the privilege
has been once invoked. If the individual states that he wants
an attorney, the interrogation must cease until an attorney is
present. At that time, the individual must have an opportunity
to confer with the attorney and to have him present during any
subsequent questioning. If the individual cannot obtain an attorney
and he indicates that he wants one before speaking to police,
they must respect his decision to remain silent.
This does not mean, as some have suggested,
that each police station must have a "station house lawyer"
present at all times to advise prisoners. It does mean, however,
that if police propose to interrogate a person they must make
known to him that he is entitled to a lawyer and that if he cannot
afford one, a lawyer will be provided for him prior to any interrogation.
If authorities conclude that they will not provide counsel during
a reasonable period of time in which investigation in the field
is carried out, they may refrain from doing so without violating
the person's Fifth Amendment privilege so long as they do not
question him during that time.
If the interrogation continues without the
presence of an attorney and a statement is taken, a heavy burden
rests on the government to demonstrate that the defendant knowingly
and intelligently waived his privilege against self-incrimination
and his right to retained or appointed counsel. Escobedo v. Illinois,
378 U.S. 478, 490, n. 14. This Court has always set high standards
of proof for the waiver of constitutional rights, Johnson v. Zerbst,
304 U.S. 458 (1938), and we re-assert these standards as applied
to in-custody interrogation. Since the State is responsible for
establishing the isolated circumstances under which the interrogation
takes place and has the only means of making available corroborated
evidence of warnings given during incommunicado interrogation,
the burden is rightly on its shoulders.
An express statement that the individual is
willing to make a statement and does not want an attorney followed
closely by a statement could constitute a waiver. But a valid
waiver will not be presumed simply from the silence of the accused
after warnings are given or simply from the fact that a confession
was in fact eventually obtained. A statement we made in Carnley
v. Cochran, 369 U.S. 506, 516 (1962), is applicable here:
"Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver."
See also Glasser v. United States, 315 U.S.
60 (1942). Moreover, where in-custody interrogation is involved,
there is no room for the contention that the privilege is waived
if the individual answers some questions or gives some information
on his own prior to invoking his right to remain silent when interrogated.
Whatever the testimony of the authorities as
to waiver of rights by an accused, the fact of lengthy interrogation
or incommunicado incarceration before a statement is made is strong
evidence that the accused did not validly waive his rights. In
these circumstances the fact that the individual eventually made
a statement is consistent with the conclusion that the compelling
influence of the interrogation finally forced him to do so. It
is inconsistent with any notion of a voluntary relinquishment
of the privilege. Moreover, any evidence that the accused was
threatened, tricked, or cajoled into a waiver will, of course,
show that the defendant did not voluntarily waive his privilege.
The requirement of warnings and waiver of rights is a fundamental
with respect to the Fifth Amendment privilege and not simply a
preliminary ritual to existing methods of interrogation.
The warnings required and the waiver necessary
in accordance with our opinion today are, in the absence of a
fully effective equivalent, prerequisites to the admissibility
of any statement made by a defendant. No distinction can be drawn
between statements which are direct confessions and statements
which amount to "admissions" of part or all of an offense.
The privilege against self-incrimination protects the individual
from being compelled to incriminate himself in any manner; it
does not distinguish degrees of incrimination. Similarly, for
precisely the same reason, no distinction may be drawn between
inculpatory statements and statements alleged to be merely "exculpatory."
If a statement made were in fact truly exculpatory it would, of
course, never be used by the prosecution. In fact, statements
merely intended to be exculpatory by the defendant are often used
to impeach his testimony at trial or to demonstrate untruths in
the statement given under interrogation and thus to prove guilt
by implication. These statements are incriminating in any meaningful
sense of the word and may not be used without the full warnings
and effective waiver required for any other statement. In Escobedo
itself, the defendant fully intended his accusation of another
as the slayer to be exculpatory as to himself.
The principles announced today deal with the
protection which must be given to the privilege against self-incrimination
when the individual is first subjected to police interrogation
while in custody at the station or otherwise deprived of his freedom
of action in any significant way. It is at this point that our
adversary system of criminal proceedings commences, distinguishing
itself at the outset from the inquisitorial system recognized
in some countries. Under the system of warnings we delineate today
or under any other system which may be devised and found effective,
the safeguards to be erected about the privilege must come into
play at this point.
Our decision is not intended to hamper the
traditional function of police officers in investigating crime.
See Escobedo v. Illinois, 378 U.S. 478, 492. When an individual
is in custody on probable cause, the police may, of course, seek
out evidence in the field to be used at trial against him. Such
investigation may include inquiry of persons not under restraint.
General on-the-scene questioning as to facts surrounding a crime
or other general questioning of citizens in the fact-finding process
is not affected by our holding. It is an act of responsible citizenship
for individuals to give whatever information they may have to
aid in law enforcement. In such situations the compelling atmosphere
inherent in the process of in-custody interrogation is not necessarily
In dealing with statements obtained through
interrogation, we do not purport to find all confessions inadmissible.
Confessions remain a proper element in law enforcement. Any statement
given freely and voluntarily without any compelling influences
is, of course, admissible in evidence. The fundamental import
of the privilege while an individual is in custody is not whether
he is allowed to talk to the police without the benefit of warnings
and counsel, but whether he can be interrogated. There is no requirement
that police stop a person who enters a police station and states
that he wishes to confess to a crime, 47
or a person who calls the police to offer a confession or any
other statement he desires to make. Volunteered statements of
any kind are not barred by the Fifth Amendment and their admissibility
is not affected by our holding today.
To summarize, we hold that when an individual
is taken into custody or otherwise deprived of his freedom by
the authorities in any significant way and is subjected to questioning,
the privilege against self-incrimination is jeopardized. Procedural
safeguards must be employed to protect the privilege, and unless
other fully effective means are adopted to notify the person of
his right of silence and to assure that the exercise of the right
will be scrupulously honored, the following measures are required.
He must be warned prior to any questioning that he has the right
to remain silent, that anything he says can be used against him
in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires. Opportunity
to exercise these rights must be afforded to him throughout the
interrogation. After such warnings have been given, and such opportunity
afforded him, the individual may knowingly and intelligently waive
these rights and agree to answer questions or make a statement.
But unless and until such warnings and waiver are demonstrated
by the prosecution at trial, no evidence obtained as a result
of interrogation can be used against him. 48
A recurrent argument made in these cases is
that society's need for interrogation outweighs the privilege.
This argument is not unfamiliar to this Court. See, e. g., Chambers
v. Florida, 309 U.S. 227, 240-241 (1940). The whole thrust of
our foregoing discussion demonstrates that the Constitution has
prescribed the rights of the individual when confronted with the
power of government when it provided in the Fifth Amendment that
an individual cannot be compelled to be a witness against himself.
That right cannot be abridged. As Mr. Justice Brandeis once observed:
"Decency, security and liberty alike demand
that government officials shall be subjected to the same rules
of conduct that are commands to the citizen. In a government of
laws, existence of the government will be imperilled if it fails
to observe the law scrupulously. Our Government is the potent,
the omnipresent teacher. For good or for ill, it teaches the whole
people by its example. Crime is contagious. If the Government
becomes a lawbreaker, it breeds contempt for law; it invites every
man to become a law unto himself; it invites anarchy. To declare
that in the administration of the criminal law the end justifies
the means . . . would bring terrible retribution. Against that
pernicious doctrine this Court should resolutely set its face."
Olmstead v. United States, 277 U.S. 438, 485 (1928) (dissenting
In this connection, one of our country's distinguished
jurists has pointed out: "The quality of a nation's civilization
can be largely measured by the methods it uses in the enforcement
of its criminal law." 50
If the individual desires to exercise his privilege,
he has the right to do so. This is not for the authorities to
decide. An attorney may advise his client not to talk to police
until he has had an opportunity to investigate the case, or he
may wish to be present with his client during any police questioning.
In doing so an attorney is merely exercising the good professional
judgment he has been taught. This is not cause for considering
the attorney a menace to law enforcement. He is merely carrying
out what he is sworn to do under his oath -- to protect to the
extent of his ability the rights of his client. In fulfilling
this responsibility the attorney plays a vital role in the administration
of criminal justice under our Constitution.
In announcing these principles, we are not
unmindful of the burdens which law enforcement officials must
bear, often under trying circumstances. We also fully recognize
the obligation of all citizens to aid in enforcing the criminal
laws. This Court, while protecting individual rights, has always
given ample latitude to law enforcement agencies in the legitimate
exercise of their duties. The limits we have placed on the interrogation
process should not constitute an undue interference with a proper
system of law enforcement. As we have noted, our decision does
not in any way preclude police from carrying out their traditional
investigatory functions. Although confessions may play an important
role in some convictions, the cases before us present graphic
examples of the overstatement of the "need" for confessions.
In each case authorities conducted interrogations ranging up to
five days in duration despite the presence, through standard investigating
practices, of considerable evidence against each defendant. 51
Further examples are chronicled in our prior cases. See, e. g.,
Haynes v. Washington, 373 U.S. 503, 518-519 (1963); Rogers v.
Richmond, 365 U.S. 534, 541 (1961); Malinski v. New York, 324
U.S. 401, 402 (1945). 52
It is also urged that an unfettered right to
detention for interrogation should be allowed because it will
often redound to the benefit of the person questioned. When police
inquiry determines that there is no reason to believe that the
person has committed any crime, it is said, he will be released
without need for further formal procedures. The person who has
committed no offense, however, will be better able to clear himself
after warnings with counsel present than without. It can be assumed
that in such circumstances a lawyer would advise his client to
talk freely to police in order to clear himself.
Custodial interrogation, by contrast, does
not necessarily afford the innocent an opportunity to clear themselves.
A serious consequence of the present practice of the interrogation
alleged to be beneficial for the innocent is that many arrests
"for investigation" subject large numbers of innocent
persons to detention and interrogation. In one of the cases before
us, No. 584, California v. Stewart, police held four persons,
who were in the defendant's house at the time of the arrest, in
jail for five days until defendant confessed. At that time they
were finally released. Police stated that there was "no evidence
to connect them with any crime." Available statistics on
the extent of this practice where it is condoned indicate that
these four are far from alone in being subjected to arrest, prolonged
detention, and interrogation without the requisite probable cause.
Over the years the Federal Bureau of Investigation
has compiled an exemplary record of effective law enforcement
while advising any suspect or arrested person, at the outset of
an interview, that he is not required to make a statement, that
any statement may be used against him in court, that the individual
may obtain the services of an attorney of his own choice and,
more recently, that he has a right to free counsel if he is unable
to pay. 54 A letter received
from the Solicitor General in response to a question from the
Bench makes it clear that the present pattern of warnings and
respect for the rights of the individual followed as a practice
by the FBI is consistent with the procedure which we delineate
today. It states:
"At the oral argument of the above cause, Mr. Justice Fortas asked whether I could provide certain information as to the practices followed by the Federal Bureau of Investigation. I have directed these questions to the attention of the Director of the Federal Bureau of Investigation and am submitting herewith a statement of the questions and of the answers which we have received.
''TH'(1) When an individual is interviewed by agents of the Bureau, what warning is given to him?
"'The standard warning long given by Special Agents of the FBI to both suspects and persons under arrest is that the person has a right to say nothing and a right to counsel, and that any statement he does make may be used against him in court. Examples of this warning are to be found in the Westover case at 342 F.2d 684 (1965), and Jackson v. U.S., 337 F.2d 136 (1964), cert. den. 380 U.S. 935.
"'After passage of the Criminal Justice Act of 1964, which provides free counsel for Federal defendants unable to pay, we added to our instructions to Special Agents the requirement that any person who is under arrest for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, must also be advised of his right to free counsel if he is unable to pay, and the fact that such counsel will be assigned by the Judge. At the same time, we broadened the right to counsel warning to read counsel of his own choice, or anyone else with whom he might wish to speak.
"'(2) When is the warning given?
"'The FBI warning is given to a suspect at the very outset of the interview, as shown in the Westover case, cited above. The warning may be given to a person arrested as soon as practicable after the arrest, as shown in the Jackson case, also cited above, and in U.S. v. Konigsberg, 336 F.2d 844 (1964), cert. den. 379 U.S. 933, but in any event it must precede the interview with the person for a confession or admission of his own guilt.
"'(3) What is the Bureau's practice in the event that (a) the individual requests counsel and (b) counsel appears?
"'When the person who has been warned of his right to counsel decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point, Shultz v. U.S., 351 F.2d 287 (1965). It may be continued, however, as to all matters other than the person's own guilt or innocence. If he is indecisive in his request for counsel, there may be some question on whether he did or did not waive counsel. Situations of this kind must necessarily be left to the judgment of the interviewing Agent. For example, in Hiram v. U.S., 354 F.2d 4 (1965), the Agent's conclusion that the person arrested had waived his right to counsel was upheld by the courts.
"'A person being interviewed and desiring to consult counsel by telephone must be permitted to do so, as shown in Caldwell v. U.S., 351 F.2d 459 (1965). When counsel appears in person, he is permitted to confer with his client in private.
"'(4) What is the Bureau's practice if the individual requests counsel, but cannot afford to retain an attorney?
"'If any person being interviewed after warning of counsel decides that he wishes to consult with counsel before proceeding further the interview is terminated, as shown above. FBI Agents do not pass judgment on the ability of the person to pay for counsel. They do, however, advise those who have been arrested for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, of a right to free counsel if they are unable to pay, and the availability of such counsel from the Judge.'" 55
The practice of the FBI can readily be emulated
by state and local enforcement agencies. The argument that the
FBI deals with different crimes than are dealt with by state authorities
does not mitigate the significance of the FBI experience. 56
The experience in some other countries also
suggests that the danger to law enforcement in curbs on interrogation
is overplayed. The English procedure since 1912 under the Judges'
Rules is significant. As recently strengthened, the Rules require
that a cautionary warning be given an accused by a police officer
as soon as he has evidence that affords reasonable grounds for
suspicion; they also require that any statement made be given
by the accused without questioning by police. 57
The right of the individual to consult with an attorney during
this period is expressly recognized. 58
The safeguards present under Scottish law may
be even greater than in England. Scottish judicial decisions bar
use in evidence of most confessions obtained through police interrogation.
59 In India, confessions
made to police not in the presence of a magistrate have been excluded
by rule of evidence since 1872, at a time when it operated under
British law. 60 Identical
provisions appear in the Evidence Ordinance of Ceylon, enacted
in 1895. 61 Similarly, in
our country the Uniform Code of Military Justice has long provided
that no suspect may be interrogated without first being warned
of his right not to make a statement and that any statement he
makes may be used against him. 62
Denial of the right to consult counsel during interrogation has
also been proscribed by military tribunals. 63
There appears to have been no marked detrimental effect on criminal
law enforcement in these jurisdictions as a result of these rules.
Conditions of law enforcement in our country are sufficiently
similar to permit reference to this experience as assurance that
lawlessness will not result from warning an individual of his
rights or allowing him to exercise them. Moreover, it is consistent
with our legal system that we give at least as much protection
to these rights as is given in the jurisdictions described. We
deal in our country with rights grounded in a specific requirement
of the Fifth Amendment of the Constitution, whereas other jurisdictions
arrived at their conclusions on the basis of principles of justice
not so specifically defined. 64
It is also urged upon us that we withhold decision
on this issue until state legislative bodies and advisory groups
have had an opportunity to deal with these problems by rule making.
65 We have already pointed
out that the Constitution does not require any specific code of
procedures for protecting the privilege against self-incrimination
during custodial interrogation. Congress and the States are free
to develop their own safeguards for the privilege, so long as
they are fully as effective as those described above in informing
accused persons of their right of silence and in affording a continuous
opportunity to exercise it. In any event, however, the issues
presented are of constitutional dimensions and must be determined
by the courts. The admissibility of a statement in the face of
a claim that it was obtained in violation of the defendant's constitutional
rights is an issue the resolution of which has long since been
undertaken by this Court. See Hopt v. Utah, 110 U.S. 574 (1884).
Judicial solutions to problems of constitutional dimension have
evolved decade by decade. As courts have been presented with the
need to enforce constitutional rights, they have found means of
doing so. That was our responsibility when Escobedo was before
us and it is our responsibility today. Where rights secured by
the Constitution are involved, there can be no rule making or
legislation which would abrogate them.
Because of the nature of the problem and because
of its recurrent significance in numerous cases, we have to this
point discussed the relationship of the Fifth Amendment privilege
to police interrogation without specific concentration on the
facts of the cases before us. We turn now to these facts to consider
the application to these cases of the constitutional principles
discussed above. In each instance, we have concluded that statements
were obtained from the defendant under circumstances that did
not meet constitutional standards for protection of the privilege.
No. 759. Miranda v. Arizona.
On March 13, 1963, petitioner, Ernesto Miranda,
was arrested at his home and taken in custody to a Phoenix police
station. He was there identified by the complaining witness. The
police then took him to "Interrogation Room No. 2" of
the detective bureau. There he was questioned by two police officers.
The officers admitted at trial that Miranda was not advised that
he had a right to have an attorney present. 66
Two hours later, the officers emerged from the interrogation room
with a written confession signed by Miranda. At the top of the
statement was a typed paragraph stating that the confession was
made voluntarily, without threats or promises of immunity and
"with full knowledge of my legal rights, understanding any
statement I make may be used against me." 67
At his trial before a jury, the written confession
was admitted into evidence over the objection of defense counsel,
and the officers testified to the prior oral confession made by
Miranda during the interrogation. Miranda was found guilty of
kidnapping and rape. He was sentenced to 20 to 30 years' imprisonment
on each count, the sentences to run concurrently. On appeal, the
Supreme Court of Arizona held that Miranda's constitutional rights
were not violated in obtaining the confession and affirmed the
conviction. 98 Ariz. 18, 401 P. 2d 721. In reaching its decision,
the court emphasized heavily the fact that Miranda did not specifically
We reverse. From the testimony of the officers
and by the admission of respondent, it is clear that Miranda was
not in any way apprised of his right to consult with an attorney
and to have one present during the interrogation, nor was his
right not to be compelled to incriminate himself effectively protected
in any other manner. Without these warnings the statements were
inadmissible. The mere fact that he signed a statement which contained
a typed-in clause stating that he had "full knowledge"
of his "legal rights" does not approach the knowing
and intelligent waiver required to relinquish constitutional rights.
Cf. Haynes v. Washington, 373 U.S. 503, 512-513 (1963); Haley
v. Ohio, 332 U.S. 596, 601 (1948) (opinion of MR. JUSTICE DOUGLAS).
No. 760. Vignera v. New York.
Petitioner, Michael Vignera, was picked up by New York police on October 14, 1960, in connection with the robbery three days earlier of a Brooklyn dress shop. They took him to the 17th Detective Squad headquarters in Manhattan. Sometime thereafter he was taken to the 66th Detective Squad. There a detective questioned Vignera with respect to the robbery. Vignera orally admitted the robbery to the detective. The detective was asked on cross-examination at trial by defense counsel whether Vignera was warned of his right to counsel before being interrogated. The prosecution objected to the question and the trial judge sustained the objection. Thus, the defense was precluded from making any showing that warnings had not been given. While at the 66th Detective Squad, Vignera was identified by the store owner and a saleslady as the man who robbed the dress shop. At about 3 p. m. he was formally arrested. The police then transported him to still another station, the 70th Precinct in Brooklyn, "for detention." At 11 p. m. Vignera was questioned by an assistant district attorney in the presence of a hearing reporter who transcribed the questions and Vignera's answers. This verbatim account of these proceedings contains no statement of any warnings given by the assistant district attorney. At Vignera's trial on a charge of first degree robbery, the detective testified as to the oral confession. The transcription of the statement taken was also introduced in evidence. At the conclusion of the testimony, the trial judge charged the jury in part as follows:
"The law doesn't say that the confession is void or invalidated because the police officer didn't advise the defendant as to his rights. Did you hear what I said? I am telling you what the law of the State of New York is."
Vignera was found guilty of first degree robbery.
He was subsequently adjudged a third-felony offender and sentenced
to 30 to 60 years' imprisonment. 68
The conviction was affirmed without opinion by the Appellate Division,
Second Department, 21 App. Div. 2d 752, 252 N. Y. S. 2d 19, and
by the Court of Appeals, also without opinion, 15 N. Y. 2d 970,
207 N. E. 2d 527, 259 N. Y. S. 2d 857, remittitur amended, 16
N. Y. 2d 614, 209 N. E. 2d 110, 261 N. Y. S. 2d 65. In argument
to the Court of Appeals, the State contended that Vignera had
no constitutional right to be advised of his right to counsel
or his privilege against self-incrimination.
We reverse. The foregoing indicates that Vignera
was not warned of any of his rights before the questioning by
the detective and by the assistant district attorney. No other
steps were taken to protect these rights. Thus he was not effectively
apprised of his Fifth Amendment privilege or of his right to have
counsel present and his statements are inadmissible.
No. 761. Westover v. United States.
At approximately 9:45 p. m. on March 20, 1963,
petitioner, Carl Calvin Westover, was arrested by local police
in Kansas City as a suspect in two Kansas City robberies. A report
was also received from the FBI that he was wanted on a felony
charge in California. The local authorities took him to a police
station and placed him in a line-up on the local charges, and
at about 11:45 p.m. he was booked. Kansas City police interrogated
Westover on the night of his arrest. He denied any knowledge of
criminal activities. The next day local officers interrogated
him again throughout the morning. Shortly before noon they informed
the FBI that they were through interrogating Westover and that
the FBI could proceed to interrogate him. There is nothing in
the record to indicate that Westover was ever given any warning
as to his rights by local police. At noon, three special agents
of the FBI continued the interrogation in a private interview
room of the Kansas City Police Department, this time with respect
to the robbery of a savings and loan association and a bank in
Sacramento, California. After two or two and one-half hours, Westover
signed separate confessions to each of these two robberies which
had been prepared by one of the agents during the interrogation.
At trial one of the agents testified, and a paragraph on each
of the statements states, that the agents advised Westover that
he did not have to make a statement, that any statement he made
could be used against him, and that he had the right to see an
Westover was tried by a jury in federal court
and convicted of the California robberies. His statements were
introduced at trial. He was sentenced to 15 years' imprisonment
on each count, the sentences to run consecutively. On appeal,
the conviction was affirmed by the Court of Appeals for the Ninth
Circuit. 342 F.2d 684.
We reverse. On the facts of this case we cannot
find that Westover knowingly and intelligently waived his right
to remain silent and his right to consult with counsel prior to
the time he made the statement. 69
At the time the FBI agents began questioning Westover, he had
been in custody for over 14 hours and had been interrogated at
length during that period. The FBI interrogation began immediately
upon the conclusion of the interrogation by Kansas City police
and was conducted in local police headquarters. Although the two
law enforcement authorities are legally distinct and the crimes
for which they interrogated Westover were different, the impact
on him was that of a continuous period of questioning. There is
no evidence of any warning given prior to the FBI interrogation
nor is there any evidence of an articulated waiver of rights after
the FBI commenced its interrogation. The record simply shows that
the defendant did in fact confess a short time after being turned
over to the FBI following interrogation by local police. Despite
the fact that the FBI agents gave warnings at the outset of their
interview, from Westover's point of view the warnings came at
the end of the interrogation process. In these circumstances an
intelligent waiver of constitutional rights cannot be assumed.
We do not suggest that law enforcement authorities
are precluded from questioning any individual who has been held
for a period of time by other authorities and interrogated by
them without appropriate warnings. A different case would be presented
if an accused were taken into custody by the second authority,
removed both in time and place from his original surroundings,
and then adequately advised of his rights and given an opportunity
to exercise them. But here the FBI interrogation was conducted
immediately following the state interrogation in the same police
station -- in the same compelling surroundings. Thus, in obtaining
a confession from Westover the federal authorities were the beneficiaries
of the pressure applied by the local in-custody interrogation.
In these circumstances the giving of warnings alone was not sufficient
to protect the privilege.
No. 584. California v. Stewart.
In the course of investigating a series of
purse-snatch robberies in which one of the victims had died of
injuries inflicted by her assailant, respondent, Roy Allen Stewart,
was pointed out to Los Angeles police as the endorser of dividend
checks taken in one of the robberies. At about 7:15 p. m., January
31, 1963, police officers went to Stewart's house and arrested
him. One of the officers asked Stewart if they could search the
house, to which he replied, "Go ahead." The search turned
up various items taken from the five robbery victims. At the time
of Stewart's arrest, police also arrested Stewart's wife and three
other persons who were visiting him. These four were jailed along
with Stewart and were interrogated. Stewart was taken to the University
Station of the Los Angeles Police Department where he was placed
in a cell. During the next five days, police interrogated Stewart
on nine different occasions. Except during the first interrogation
session, when he was confronted with an accusing witness, Stewart
was isolated with his interrogators.
During the ninth interrogation session, Stewart
admitted that he had robbed the deceased and stated that he had
not meant to hurt her. Police then brought Stewart before a magistrate
for the first time. Since there was no evidence to connect them
with any crime, the police then released the other four persons
arrested with him.
Nothing in the record specifically indicates
whether Stewart was or was not advised of his right to remain
silent or his right to counsel. In a number of instances, however,
the interrogating officers were asked to recount everything that
was said during the interrogations. None indicated that Stewart
was ever advised of his rights.
Stewart was charged with kidnapping to commit
robbery, rape, and murder. At his trial, transcripts of the first
interrogation and the confession at the last interrogation were
introduced in evidence. The jury found Stewart guilty of robbery
and first degree murder and fixed the penalty as death. On appeal,
the Supreme Court of California reversed. 62 Cal. 2d 571, 400
P. 2d 97, 43 Cal. Rptr. 201. It held that under this Court's decision
in Escobedo, Stewart should have been advised of his right to
remain silent and of his right to counsel and that it would not
presume in the face of a silent record that the police advised
Stewart of his rights. 70
We affirm. 71
In dealing with custodial interrogation, we will not presume that
a defendant has been effectively apprised of his rights and that
his privilege against self-incrimination has been adequately safeguarded
on a record that does not show that any warnings have been given
or that any effective alternative has been employed. Nor can a
knowing and intelligent waiver of these rights be assumed on a
silent record. Furthermore, Stewart's steadfast denial of the
alleged offenses through eight of the nine interrogations over
a period of five days is subject to no other construction than
that he was compelled by persistent interrogation to forgo his
Fifth Amendment privilege.
Therefore, in accordance with the foregoing,
the judgments of the Supreme Court of Arizona in No. 759, of the
New York Court of Appeals in No. 760, and of the Court of Appeals
for the Ninth Circuit in No. 761 are reversed. The judgment of
the Supreme Court of California in No. 584 is affirmed.
It is so ordered.
---- Begin EndNotes ----
United States v. Childress, 347 F.2d 448 (C. A. 7th Cir. 1965),
with Collins v. Beto, 348 F.2d 823 (C. A. 5th Cir. 1965). Compare
People v. Dorado, 62 Cal. 2d 338, 398 P. 2d 361, 42 Cal. Rptr.
169 (1964) with People v. Hartgraves, 31 Ill. 2d 375, 202 N. E.
2d 33 (1964).
2 See, e.
g., Enker & Elsen, Counsel for the Suspect: Massiah v. United
States and Escobedo v. Illinois, 49 Minn. L. Rev. 47 (1964); Herman,
The Supreme Court and Restrictions on Police Interrogation, 25
Ohio St. L. J. 449 (1964); Kamisar, Equal Justice in the Gatehouses
and Mansions of American Criminal Procedure, in Criminal Justice
in Our Time 1 (1965); Dowling, Escobedo and Beyond: The Need for
a Fourteenth Amendment Code of Criminal Procedure, 56 J. Crim.
L. C. & P. S. 143, 156 (1965).
The complex problems also prompted discussions by jurists. Compare Bazelon, Law, Morality, and Civil Liberties, 12 U. C. L. A. L. Rev. 13 (1964), with Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929 (1965).
3 For example, the Los Angeles Police Chief stated that "If the police are required . . . to . . . establish that the defendant was apprised of his constitutional guarantees of silence and legal counsel prior to the uttering of any admission or confession, and that he intelligently waived these guarantees . . . a whole Pandora's box is opened as to under what circumstances . . . can a defendant intelligently waive these rights. . . . Allegations that modern criminal investigation can compensate for the lack of a confession or admission in every criminal case is totally absurd!" Parker, 40 L. A. Bar Bull. 603, 607, 642 (1965). His prosecutorial counterpart, District Attorney Younger, stated that "It begins to appear that many of these seemingly restrictive decisions are going to contribute directly to a more effective, efficient and professional level of law enforcement." L. A. Times, Oct. 2, 1965, p. 1. The former Police Commissioner of New York, Michael J. Murphy, stated of Escobedo: "What the Court is doing is akin to requiring one boxer to fight by Marquis of Queensbury rules while permitting the other to butt, gouge and bite." N. Y. Times, May 14, 1965, p. 39. The former United States Attorney for the District of Columbia, David C. Acheson, who is presently Special Assistant to the Secretary of the Treasury (for Enforcement), and directly in charge of the Secret Service and the Bureau of Narcotics, observed that "Prosecution procedure has, at most, only the most remote causal connection with crime. Changes in court decisions and prosecution procedure would have about the same effect on the crime rate as an aspirin would have on a tumor of the brain." Quoted in Herman, supra, n. 2, at 500, n. 270. Other views on the subject in general are collected in Weisberg, Police Interrogation of Arrested Persons: A Skeptical View, 52 J. Crim. L., C. & P. S. 21 (1961).
4 This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.
5 See, for example, IV National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement (1931) [Wickersham Report]; Booth, Confessions, and Methods Employed in Procuring Them, 4 So. Calif. L. Rev. 83 (1930); Kauper, Judicial Examination of the Accused -- A Remedy for the Third Degree, 30 Mich. L. Rev. 1224 (1932). It is significant that instances of third-degree treatment of prisoners almost invariably took place during the period between arrest and preliminary examination. Wickersham Report, at 169; Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. Chi. L. Rev. 345, 357 (1936). See also Foote, Law and Police Practice: Safeguards in the Law of Arrest, 52 Nw. U. L. Rev. 16 (1957).
6 Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227 (1940); Canty v. Alabama, 309 U.S. 629 (1940); White v. Texas, 310 U.S. 530 (1940); Vernon v. Alabama, 313 U.S. 547 (1941); Ward v. Texas, 316 U.S. 547 (1942); Ashcraft v. Tennessee, 322 U.S. 143 (1944); Malinski v. New York, 324 U.S. 401 (1945); Leyra v. Denno, 347 U.S. 556 (1954). See also Williams v. United States, 341 U.S. 97 (1951).
7 In addition, see People v. Wakat, 415 Ill. 610, 114 N. E. 2d 706 (1953); Wakat v. Harlib, 253 F.2d 59 (C. A. 7th Cir. 1958) (defendant suffering from broken bones, multiple bruises and injuries sufficiently serious to require eight months' medical treatment after being manhandled by five policemen); Kier v. State, 213 Md. 556, 132 A. 2d 494 (1957) (police doctor told accused, who was strapped to a chair completely nude, that he proposed to take hair and skin scrapings from anything that looked like blood or sperm from various parts of his body); Bruner v. People, 113 Colo. 194, 156 P. 2d 111 (1945) (defendant held in custody over two months, deprived of food for 15 hours, forced to submit to a lie detector test when he wanted to go to the toilet); People v. Matlock, 51 Cal. 2d 682, 336 P. 2d 505 (1959) (defendant questioned incessantly over an evening's time, made to lie on cold board and to answer questions whenever it appeared he was getting sleepy). Other cases are documented in American Civil Liberties Union, Illinois Division, Secret Detention by the Chicago Police (1959); Potts, The Preliminary Examination and "The Third Degree," 2 Baylor L. Rev. 131 (1950); Sterling, Police Interrogation and the Psychology of Confession, 14 J. Pub. L. 25 (1965).
8 The manuals quoted in the text following are the most recent and representative of the texts currently available. Material of the same nature appears in Kidd, Police Interrogation (1940); Mulbar, Interrogation (1951); Dienstein, Technics for the Crime Investigator 97-115 (1952). Studies concerning the observed practices of the police appear in LaFave, Arrest: The Decision To Take a Suspect Into Custody 244-437, 490-521 (1965); LaFave, Detention for Investigation by the Police: An Analysis of Current Practices, 1962 Wash. U. L. Q. 331; Barrett, Police Practices and the Law -- From Arrest to Release or Charge, 50 Calif. L. Rev. 11 (1962); Sterling, supra, n. 7, at 47-65.
9 The methods described in Inbau & Reid, Criminal Interrogation and Confessions (1962), are a revision and enlargement of material presented in three prior editions of a predecessor text, Lie Detection and Criminal Interrogation (3d ed. 1953). The authors and their associates are officers of the Chicago Police Scientific Crime Detection Laboratory and have had extensive experience in writing, lecturing and speaking to law enforcement authorities over a 20-year period. They say that the techniques portrayed in their manuals reflect their experiences and are the most effective psychological stratagems to employ during interrogations. Similarly, the techniques described in O'Hara, Fundamentals of Criminal Investigation (1956), were gleaned from long service as observer, lecturer in police science, and work as a federal criminal investigator. All these texts have had rather extensive use among law enforcement agencies and among students of police science, with total sales and circulation of over 44,000.
10 Inbau & Reid, Criminal Interrogation and Confessions (1962), at 1.
11 O'Hara, supra, at 99.
12 Inbau & Reid, supra, at 34-43, 87. For example, in Leyra v. Denno, 347 U.S. 556 (1954), the interrogator-psychiatrist told the accused, "We do sometimes things that are not right, but in a fit of temper or anger we sometimes do things we aren't really responsible for," id., at 562, and again, "We know that morally you were just in anger. Morally, you are not to be condemned," id., at 582.
13 Inbau & Reid, supra, at 43-55.
14 O'Hara, supra, at 112.
15 Inbau & Reid, supra, at 40.
17 O'Hara, supra, at 104, Inbau & Reid, supra, at 58-59. See Spano v. New York, 360 U.S. 315 (1959). A variant on the technique of creating hostility is one of engendering fear. This is perhaps best described by the prosecuting attorney in Malinski v. New York, 324 U.S. 401, 407 (1945): "Why this talk about being undressed? Of course, they had a right to undress him to look for bullet scars, and keep the clothes off him. That was quite proper police procedure. That is some more psychology -- let him sit around with a blanket on him, humiliate him there for a while; let him sit in the corner, let him think he is going to get a shellacking."
18 O'Hara, supra, at 105-106.
19 Id., at 106.
20 Inbau & Reid, supra, at 111.
22 Inbau & Reid, supra, at 112.
23 Inbau & Reid, Lie Detection and Criminal Interrogation 185 (3d ed. 1953).
24 Interrogation procedures may even give rise to a false confession. The most recent conspicuous example occurred in New York, in 1964, when a Negro of limited intelligence confessed to two brutal murders and a rape which he had not committed. When this was discovered, the prosecutor was reported as saying: "Call it what you want -- brain-washing, hypnosis, fright. They made him give an untrue confession. The only thing I don't believe is that Whitmore was beaten." N. Y. Times, Jan. 28, 1965, p. 1, col. 5. In two other instances, similar events had occurred. N. Y. Times, Oct. 20, 1964, p. 22, col. 1; N. Y. Times, Aug. 25, 1965, p. 1, col. 1. In general, see Borchard, Convicting the Innocent (1932); Frank & Frank, Not Guilty (1957).
25 In the fourth confession case decided by the Court in the 1962 Term, Fay v. Noia, 372 U.S. 391 (1963), our disposition made it unnecessary to delve at length into the facts. The facts of the defendant's case there, however, paralleled those of his co-defendants, whose confessions were found to have resulted from continuous and coercive interrogation for 27 hours, with denial of requests for friends or attorney. See United States v. Murphy, 222 F.2d 698 (C. A. 2d Cir. 1955) (Frank, J.); People v. Bonino, 1 N. Y. 2d 752, 135 N. E. 2d 51 (1956).
absurdity of denying that a confession obtained under these circumstances
is compelled is aptly portrayed by an example in Professor Sutherland's
recent article, Crime and Confession, 79 Harv. L. Rev. 21, 37
"Suppose a well-to-do testatrix says she intends to will her property to Elizabeth. John and James want her to bequeath it to them instead. They capture the testatrix, put her in a carefully designed room, out of touch with everyone but themselves and their convenient 'witnesses,' keep her secluded there for hours while they make insistent demands, weary her with contradictions of her assertions that she wants to leave her money to Elizabeth, and finally induce her to execute the will in their favor. Assume that John and James are deeply and correctly convinced that Elizabeth is unworthy and will make base use of the property if she gets her hands on it, whereas John and James have the noblest and most righteous intentions. Would any judge of probate accept the will so procured as the 'voluntary' act of the testatrix?"
27 Thirteenth century commentators found an analogue to the privilege grounded in the Bible. "To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree." Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, para. 6, III Yale Judaica Series 52-53. See also Lamm, The Fifth Amendment and Its Equivalent in the Halakhah, 5 Judaism 53 (Winter 1956).
28 See Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1, 9-11 (1949); 8 Wigmore, Evidence 289-295 (McNaughton rev. 1961). See also Lowell, The Judicial Use of Torture, Parts I and II, 11 Harv. L. Rev. 220, 290 (1897).
29 See Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va. L. Rev. 763 (1935); Ullmann v. United States, 350 U.S. 422, 445-449 (1956) (DOUGLAS, J., dissenting).
30 Compare Brown v. Walker, 161 U.S. 591 (1896); Quinn v. United States, 349 U.S. 155 (1955).
31 Brief for the United States, p. 28. To the same effect, see Brief for the United States, pp. 40-49, n. 44, Anderson v. United States, 318 U.S. 350 (1943); Brief for the United States, pp. 17-18, McNabb v. United States, 318 U.S. 332 (1943).
32 Our decision today does not indicate in any manner, of course, that these rules can be disregarded. When federal officials arrest an individual, they must as always comply with the dictates of the congressional legislation and cases thereunder. See generally, Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo. L. J. 1 (1958).
33 The decisions of this Court have guaranteed the same procedural protection for the defendant whether his confession was used in a federal or state court. It is now axiomatic that the defendant's constitutional rights have been violated if his conviction is based, in whole or in part, on an involuntary confession, regardless of its truth or falsity. Rogers v. Richmond, 365 U.S. 534, 544 (1961); Wan v. United States, 266 U.S. 1 (1924). This is so even if there is ample evidence aside from the confession to support the conviction, e. g., Malinski v. New York, 324 U.S. 401, 404 (1945); Bram v. United States, 168 U.S. 532, 540-542 (1897). Both state and federal courts now adhere to trial procedures which seek to assure a reliable and clear-cut determination of the voluntariness of the confession offered at trial, Jackson v. Denno, 378 U.S. 368 (1964); United States v. Carignan, 342 U.S. 36, 38 (1951); see also Wilson v. United States, 162 U.S. 613, 624 (1896). Appellate review is exacting, see Haynes v. Washington, 373 U.S. 503 (1963); Blackburn v. Alabama, 361 U.S. 199 (1960). Whether his conviction was in a federal or state court, the defendant may secure a post-conviction hearing based on the alleged involuntary character of his confession, provided he meets the procedural requirements, Fay v. Noia, 372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963). In addition, see Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964).
34 See Lisenba v. California, 314 U.S. 219, 241 (1941); Ashcraft v. Tennessee, 322 U.S. 143 (1944); Malinski v. New York, 324 U.S. 401 (1945); Spano v. New York, 360 U.S. 315 (1959); Lynumn v. Illinois, 372 U.S. 528 (1963); Haynes v. Washington, 373 U.S. 503 (1963).
35 The police also prevented the attorney from consulting with his client. Independent of any other constitutional proscription, this action constitutes a violation of the Sixth Amendment right to the assistance of counsel and excludes any statement obtained in its wake. See People v. Donovan, 13 N. Y. 2d 148, 193 N. E. 2d 628, 243 N. Y. S. 2d 841 (1963) (Fuld, J.).
36 In re Groban, 352 U.S. 330, 340-352 (1957) (BLACK, J., dissenting); Note, 73 Yale L. J. 1000, 1048-1051 (1964); Comment, 31 U. Chi. L. Rev. 313, 320 (1964) and authorities cited.
p. 454, supra. Lord Devlin has commented:
"It is probable that even today, when
there is much less ignorance about these matters than formerly,
there is still a general belief that you must answer all questions
put to you by a policeman, or at least that it will be the worse
for you if you do not." Devlin, The Criminal Prosecution
in England 32 (1958).
In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. California, 380 U.S. 609 (1965); Malloy v. Hogan, 378 U.S. 1, 8 (1964); Comment, 31 U. Chi. L. Rev. 556 (1964); Developments in the Law -- Confessions, 79 Harv. L. Rev. 935, 1041-1044 (1966). See also Bram v. United States, 168 U.S. 532, 562 (1897).
38 Cf. Betts v. Brady, 316 U.S. 455 (1942), and the recurrent inquiry into special circumstances it necessitated. See generally, Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and Due Process Values, 61 Mich. L. Rev. 219 (1962).
39 See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St. L. J. 449, 480 (1964).
40 Estimates of 50-90% indigency among felony defendants have been reported. Pollock, Equal Justice in Practice, 45 Minn. L. Rev. 737, 738-739 (1961); Birzon, Kasanof & Forma, The Right to Counsel and the Indigent Accused in Courts of Criminal Jurisdiction in New York State, 14 Buffalo L. Rev. 428, 433 (1965).
Kamisar, Equal Justice in the Gatehouses and Mansions of American
Criminal Procedure, in Criminal Justice in Our Time 1, 64-81 (1965).
As was stated in the Report of the Attorney General's Committee
on Poverty and the Administration of Federal Criminal Justice
"When government chooses to exert its powers in the criminal area, its obligation is surely no less than that of taking reasonable measures to eliminate those factors that are irrelevant to just administration of the law but which, nevertheless, may occasionally affect determinations of the accused's liability or penalty. While government may not be required to relieve the accused of his poverty, it may properly be required to minimize the influence of poverty on its administration of justice."
42 Cf. United States ex rel. Brown v. Fay, 242 F.Supp. 273, 277 (D. C. S. D. N. Y. 1965); People v. Witenski, 15 N. Y. 2d 392, 207 N. E. 2d 358, 259 N. Y. S. 2d 413 (1965).
43 While a warning that the indigent may have counsel appointed need not be given to the person who is known to have an attorney or is known to have ample funds to secure one, the expedient of giving a warning is too simple and the rights involved too important to engage in ex post facto inquiries into financial ability when there is any doubt at all on that score.
44 If an individual indicates his desire to remain silent, but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of these statements.
45 Although this Court held in Rogers v. United States, 340 U.S. 367 (1951), over strong dissent, that a witness before a grand jury may not in certain circumstances decide to answer some questions and then refuse to answer others, that decision has no application to the interrogation situation we deal with today. No legislative or judicial fact-finding authority is involved here, nor is there a possibility that the individual might make self-serving statements of which he could make use at trial while refusing to answer incriminating statements.
distinction and its significance has been aptly described in the
opinion of a Scottish court:
"In former times such questioning, if undertaken, would be conducted by police officers visiting the house or place of business of the suspect and there questioning him, probably in the presence of a relation or friend. However convenient the modern practice may be, it must normally create a situation very unfavourable to the suspect." Chalmers v. H. M. Advocate,  Sess. Cas. 66, 78 (J. C.).
47 See People v. Dorado, 62 Cal. 2d 338, 354, 398 P. 2d 361, 371, 42 Cal. Rptr. 169, 179 (1965).
48 In accordance with our holdings today and in Escobedo v. Illinois, 378 U.S. 478, 492, Crooker v. California, 357 U.S. 433 (1958) and Cicenia v. Lagay, 357 U.S. 504 (1958) are not to be followed.
49 n49 In quoting the above from the dissenting opinion of Mr. Justice Brandeis we, of course, do not intend to pass on the constitutional questions involved in the Olmstead case
50 Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 26 (1956).
51 Miranda, Vignera, and Westover were identified by eyewitnesses. Marked bills from the bank robbed were found in Westover's car. Articles stolen from the victim as well as from several other robbery victims were found in Stewart's home at the outset of the investigation.
52 Dealing as we do here with constitutional standards in relation to statements made, the existence of independent corroborating evidence produced at trial is, of course, irrelevant to our decisions. Haynes v. Washington, 373 U.S. 503, 518-519 (1963); Lynumn v. Illinois, 372 U.S. 528, 537-538 (1963); Rogers v. Richmond, 365 U.S. 534, 541 (1961); Blackburn v. Alabama, 361 U.S. 199, 206 (1960).
53 See, e. g., Report and Recommendations of the [District of Columbia] Commissioners' Committee on Police Arrests for Investigation (1962); American Civil Liberties Union, Secret Detention by the Chicago Police (1959). An extreme example of this practice occurred in the District of Columbia in 1958. Seeking three "stocky" young Negroes who had robbed a restaurant, police rounded up 90 persons of that general description. Sixty-three were held overnight before being released for lack of evidence. A man not among the 90 arrested was ultimately charged with the crime. Washington Daily News, January 21, 1958, p. 5, col. 1; Hearings before a Subcommittee of the Senate Judiciary Committee on H. R. 11477, S. 2970, S. 3325, and S. 3355, 85th Cong., 2d Sess. (July 1958), pp. 40, 78.
1952, J. Edgar Hoover, Director of the Federal Bureau of Investigation,
"Law enforcement, however, in defeating
the criminal, must maintain inviolate the historic liberties of
the individual. To turn back the criminal, yet, by so doing, destroy
the dignity of the individual, would be a hollow victory.
. . . .
"We can have the Constitution, the best
laws in the land, and the most honest reviews by courts -- but
unless the law enforcement profession is steeped in the democratic
tradition, maintains the highest in ethics, and makes its work
a career of honor, civil liberties will continually -- and without
end -- be violated. . . . The best protection of civil liberties
is an alert, intelligent and honest law enforcement agency. There
can be no alternative.
. . . .
". . . Special Agents are taught that
any suspect or arrested person, at the outset of an interview,
must be advised that he is not required to make a statement and
that any statement given can be used against him in court. Moreover,
the individual must be informed that, if he desires, he may obtain
the services of an attorney of his own choice."
Hoover, Civil Liberties and Law Enforcement: The Role of the FBI, 37 Iowa L. Rev. 175, 177-182 (1952).
55 We agree that the interviewing agent must exercise his judgment in determining whether the individual waives his right to counsel. Because of the constitutional basis of the right, however, the standard for waiver is necessarily high. And, of course, the ultimate responsibility for resolving this constitutional question lies with the courts.
56 Among the crimes within the enforcement jurisdiction of the FBI are kidnapping, 18 U. S. C. § 1201 (1964 ed.), white slavery, 18 U. S. C. §§ 2421-2423 (1964 ed.), bank robbery, 18 U. S. C. § 2113 (1964 ed.), interstate transportation and sale of stolen property, 18 U. S. C. §§ 2311-2317 (1964 ed.), all manner of conspiracies, 18 U. S. C. § 371 (1964 ed.), and violations of civil rights, 18 U. S. C. §§ 241-242 (1964 ed.). See also 18 U. S. C. § 1114 (1964 ed.) (murder of officer or employee of the United States).
Crim. L. Rev., at 166-170. These Rules provide in part:
"II. As soon as a police officer has evidence
which would afford reasonable grounds for suspecting that a person
has committed an offence, he shall caution that person or cause
him to be cautioned before putting to him any questions, or further
questions, relating to that offence.
"The caution shall be in the following
"'You are not obliged to say anything
unless you wish to do so but what you say may be put into writing
and given in evidence.'
"When after being cautioned a person is
being questioned, or elects to make a statement, a record shall
be kept of the time and place at which any such questioning or
statement began and ended and of the persons present.
. . . .
"III. . . .
. . . .
"(b) It is only in exceptional cases that
questions relating to the offence should be put to the accused
person after he has been charged or informed that he may be prosecuted.
. . . .
"IV. All written statements made after
caution shall be taken in the following manner:
"(a) If a person says that he wants to
make a statement he shall be told that it is intended to make
a written record of what he says.
"He shall always be asked whether he wishes
to write down himself what he wants to say; if he says that he
cannot write or that he would like someone to write it for him,
a police officer may offer to write the statement for him. . .
"(b) Any person writing his own statement
shall be allowed to do so without any prompting as distinct from
indicating to him what matters are material.
. . . .
"(d) Whenever a police officer writes
the statement, he shall take down the exact words spoken by the
person making the statement, without putting any questions other
than such as may be needed to make the statement coherent, intelligible
and relevant to the material matters: he shall not prompt him."
The prior Rules appear in Devlin, The Criminal
Prosecution in England 137-141 (1958).
Despite suggestions of some laxity in enforcement of the Rules and despite the fact some discretion as to admissibility is invested in the trial judge, the Rules are a significant influence in the English criminal law enforcement system. See, e. g.,  Crim. L. Rev., at 182; and articles collected in  Crim. L. Rev., at 298-356.
introduction to the Judges' Rules states in part:
"These Rules do not affect the principles
. . . .
"(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so . . . ."  Crim. L. Rev., at 166-167.
stated by the Lord Justice General in Chalmers v. H. M. Advocate,
 Sess. Cas. 66, 78 (J. C.):
"The theory of our law is that at the stage of initial investigation the police may question anyone with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centered upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, e. g., to the point of extracting a confession by what amounts to cross-examination, the evidence of that confession will almost certainly be excluded. Once the accused has been apprehended and charged he has the statutory right to a private interview with a solicitor and to be brought before a magistrate with all convenient speed so that he may, if so advised, emit a declaration in presence of his solicitor under conditions which safeguard him against prejudice."
confession made to a police officer shall be proved as against
a person accused of any offence." Indian Evidence Act §
"No confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person." Indian Evidence Act § 26. See 1 Ramaswami & Rajagopalan, Law of Evidence in India 553-569 (1962). To avoid any continuing effect of police pressure or inducement, the Indian Supreme Court has invalidated a confession made shortly after police brought a suspect before a magistrate, suggesting: "It would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession." Sarwan Singh v. State of Punjab, 44 All India Rep. 1957, Sup. Ct. 637, 644.
61 I Legislative Enactments of Ceylon 211 (1958).
62 10 U. S. C. § 831 (b) (1964 ed.).
63 United States v. Rose, 24 CMR 251 (1957); United States v. Gunnels, 23 CMR 354 (1957).
64 Although no constitution existed at the time confessions were excluded by rule of evidence in 1872, India now has a written constitution which includes the provision that "No person accused of any offence shall be compelled to be a witness against himself." Constitution of India, Article 20 (3). See Tope, The Constitution of India 63-67 (1960).
65 Brief for United States in No. 761, Westover v. United States, pp. 44-47; Brief for the State of New York as amicus curiae, pp. 35-39. See also Brief for the National District Attorneys Association as amicus curiae, pp. 23-26.
66 Miranda was also convicted in a separate trial on an unrelated robbery charge not presented here for review. A statement introduced at that trial was obtained from Miranda during the same interrogation which resulted in the confession involved here. At the robbery trial, one officer testified that during the interrogation he did not tell Miranda that anything he said would be held against him or that he could consult with an attorney. The other officer stated that they had both told Miranda that anything he said would be used against him and that he was not required by law to tell them anything.
67 One of the officers testified that he read this paragraph to Miranda. Apparently, however, he did not do so until after Miranda had confessed orally.
68 Vignera thereafter successfully attacked the validity of one of the prior convictions, Vignera v. Wilkins, Civ. 9901 (D. C. W. D. N. Y. Dec. 31, 1961) (unreported), but was then resentenced as a second-felony offender to the same term of imprisonment as the original sentence. R. 31-33.
69 The failure of defense counsel to object to the introduction of the confession at trial, noted by the Court of Appeals and emphasized by the Solicitor General, does not preclude our consideration of the issue. Since the trial was held prior to our decision in Escobedo and, of course, prior to our decision today making the objection available, the failure to object at trial does not constitute a waiver of the claim. See, e. g., United States ex rel. Angelet v. Fay, 333 F.2d 12, 16 (C. A. 2d Cir. 1964), aff'd, 381 U.S. 654 (1965). Cf. Ziffrin, Inc. v. United States, 318 U.S. 73, 78 (1943).
70 Because of this disposition of the case, the California Supreme Court did not reach the claims that the confession was coerced by police threats to hold his ailing wife in custody until he confessed, that there was no hearing as required by Jackson v. Denno, 378 U.S. 368 (1964), and that the trial judge gave an instruction condemned by the California Supreme Court's decision in People v. Morse, 60 Cal. 2d 631, 388 P. 2d 33, 36 Cal. Rptr. 201 (1964).
certiorari was granted in this case, respondent moved to dismiss
on the ground that there was no final judgment from which the
State could appeal since the judgment below directed that he be
retried. In the event respondent was successful in obtaining an
acquittal on retrial, however, under California law the State
would have no appeal. Satisfied that in these circumstances the
decision below constituted a final judgment under 28 U. S. C.
§ 1257 (3) (1964 ed.), we denied the motion. 383 U.S. 903.
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