Miranda v. Arizona

No. 759

Argued February 28-March 1, 1966

Decided June 13, 1966 *

384 U.S. 436

CERTIORARI TO THE SUPREME COURT OF ARIZONA

Syllabus



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.



(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.



(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 [384 U.S. 437] as well

as in the courts or during the course of other official investigations.



(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.



(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.



(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.



(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.



(g) Where the individual answers some questions during in-custody

interrogation, he has not waived his privilege, and may invoke his right

to remain silent thereafter.



(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.



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.



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.



98 Ariz. 18, 401  P.2d 721; 15 N.Y.2d 970, 207 N.E.2d 527; 16 N.Y.2d

614, 209 N.E.2d 110; 342 F.2d 684, reversed; 62 Cal.2d 571, 400 P.2d 97,

affirmed. [384 U.S. 439] WARREN, J., lead opinion



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. [384 U.S. 440]



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 inadmissible.



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.  A wealth of scholarly material has been written tracing

its ramifications and underpinnings.  Police and prosecutor [384 U.S.

441] have speculated on its range and desirability.  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 [384 U.S. 442] 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 reexamination 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 [384 U.S. 443] 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, (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 [384 U.S. 444] 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.  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 [384 U.S. 445] 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 questioned. I



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.  [384 U.S. 446] 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.  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). [384

U.S. 447]



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 [384 U.S. 448] 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.  These  [384 U.S. 449] texts are used by law enforcement

agencies themselves as guides.  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 [384 U.S. 450] 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.  [384 U.S. 451] One writer

describes the efficacy of these characteristics in this manner:



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 [384

U.S. 452] 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}

[384 U.S. 453]



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 [384 U.S. 454] 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: [T]he 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} [384 U.S. 455]



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 constitutional rights.



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}  [384 U.S. 456] 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   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 [384 U.S. 457] 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 [384 U.S. 458] 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. II



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 [384 U.S. 459] 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 [384 U.S. 460]

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,  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, (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.  [384 U.S. 461] 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. Hitchock, 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.{30}



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 [384 U.S. 462] 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 [384 U.S. 463] 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  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 [384 U.S. 464] 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 [384 U.S. 465] 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 to speak.



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 [384 U.S. 466] 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 he 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 compulsion.



It was in this manner that Escobedo explicated another facet of the

pretrial 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 factfinding 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). [384 U.S. 467] III



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 rulemaking 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 [384 U.S. 468]

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 [384 U.S. 469] as to his age,

education, intelligence, or prior contact with authorities, can never be

more than speculation;{38} a warning is a clear-cut 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 [384 U.S. 470] 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 [384 U.S. 471] 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: [I]t 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 [384 U.S. 472] 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 [384 U.S. 473]

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, [384 U.S. 474] 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. [384 U.S. 475]



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

reassert 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 [384 U.S. 476] some information on his own prior to

invoking his right to remain silent when interrogated.{45}



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, [384 U.S.

477] 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

factfinding process is not affected by our holding.  It is an act of

[384 U.S. 478] 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 present.{46}



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 [384 U.S. 479] 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} IV



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, (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 [384 U.S. 480] rules of conduct that are

commands to the citizen.  In a government of laws, existence of the

government will be imperilled if it fail 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

opinion).{49}  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.  [384

U.S. 481] 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, (1963); Rogers v. Richmond, 365 U.S. 534, 541 (1961); Malinski

v. New York, 324 U.S. 401,402 (1945).{52} [384 U.S. 482]



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.{53} [384 U.S. 483]



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 [384 U.S. 484] 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.



(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 [384 U.S. 485] 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. [384 U.S. 486]



(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 [384 U.S. 487] 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}  [384 U.S. 488] 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 [384 U.S. 489] 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, [384 U.S. 490]

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 rulemaking.{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 [384 U.S. 491] responsibility today.  Where rights secured by

the Constitution are involved, there can be no rulemaking or legislation

which would abrogate them. V



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 [384 U.S. 492] 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 request counsel.



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. [384 U.S. 493] 503, (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 [384 U.S. 494] 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. .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 [384 U.S. 495] 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  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 attorney.



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 [384 U.S. 496] 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 [384 U.S. 497] 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, [384 U.S. 498] 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 [384 U.S. 499] 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. CLARK, J., concurring and dissenting



MR. JUSTICE CLARK, dissenting in Nos. 759, 760, and 761, and concurring

in the result in No. 584.



It is with regret that I find it necessary to write in these cases. 

However, I am unable to join the majority because its opinion goes too

far on too little, while my dissenting brethren do not go quite far

enough.  Nor can I join in the Court's criticism of the present

practices of police and investigatory agencies as to custodial

interrogation.  The materials it refers to as "police manuals" are, as I

read them, merely writings in this field by professors and some police

officers.  Not one is shown by the record here to be the official manual

of any police department, much less in universal use in crime detection.

 Moreover, the examples of police brutality mentioned by the Court are

rare exceptions to the thousands of cases [384 U.S. 500] that appear

every year in the law reports.  The police agencies -- all the way from

municipal and state forces to the federal bureaus -- are responsible for

law enforcement and public safety in this country.  I am proud of their

efforts, which, in my view, are not fairly characterized by the Court's

opinion. I



The ipse dixit of the majority has no support in our cases.  Indeed, the

Court admits that "we might not find the defendants' statements [here]

to have been involuntary in traditional terms."  Ante,   In short, the

Court has added more to the requirements that the accused is entitled to

consult with his lawyer and that he must be given the traditional

warning that he may remain silent and that anything that he says may be

used against him.  Escobedo v. Illinois, 378 U.S. 478, (1964).  Now the

Court fashions a constitutional rule that the police may engage in no

custodial interrogation without additionally advising the accused that

he has a right under the Fifth Amendment to the presence of counsel

during interrogation and that, if he is without funds, counsel will be

furnished him.  When, at any point during an interrogation, the accused

seeks affirmatively or impliedly to invoke his rights to silence or

counsel, interrogation must be forgone or postponed.  The Court further

holds that failure to follow the new procedures requires inexorably the

exclusion of any statement by the accused, as well as the fruits

thereof.  Such a strict constitutional specific inserted at the nerve

center of crime detection may well kill the patient.  [384 U.S. 501]

Since there is at this time a paucity of information and an almost total

lack of empirical knowledge on the practical operation of requirements

truly comparable to those announced by the majority, I would be more

restrained, lest we go too far too fast. II



Custodial interrogation has long been recognized as "undoubtedly an

essential tool in effective law enforcement."  Haynes v. Washington, 373

U.S. 503, 515 (1963).  Recognition of this fact should put us on guard

against the promulgation of doctrinaire rules.  Especially is this true

where the Court finds that "the Constitution has prescribed" its

holding, and where the light of our past cases, from Hopt v. Utah, 110

U.S. 574 (1884), down to Haynes v. Washington, supra, is to [384 U.S.

502] the contrary.  Indeed, even in Escobedo, the Court never hinted

that an affirmative "waiver" was a prerequisite to questioning; that the

burden of proof as to waiver was on the prosecution; that the presence

of counsel -- absent a waiver -- during interrogation was required; that

a waiver can be withdrawn at the will of the accused; that counsel must

be furnished during an accusatory stage to those unable to pay; nor that

admissions and exculpatory statements are "confessions."  To require all

those things at one gulp should cause the Court to choke over more cases

than Crooker v. California, 357 U.S. 433 (1958), and Cicenia v. Lagay,

357 U.S. 504 (1958), which it expressly overrules today.



The rule prior to today -- as Mr. Justice Goldberg, the author of the

Court's opinion in Escobedo, stated it in Haynes v. Washington --

depended upon "a totality of circumstances evidencing an involuntary . .

. admission of guilt."  373 U.S. at 514.  And he concluded: Of course,

detection and solution of crime is, at best, a difficult and arduous

task requiring determination and persistence on the part of all

responsible officers charged with the duty of law enforcement.  And

certainly we do not mean to suggest that all interrogation of witnesses

and suspects is impermissible.  Such questioning is undoubtedly an

essential tool in effective law enforcement.  The line between proper

and permissible police conduct and techniques and methods offensive to

due process is, at best, a difficult one to draw, particularly in cases

such as this, where it is necessary to make fine judgments as to the

effect of psychologically coercive pressures and inducements on the mind

and will of an accused. . . .  We are here impelled to the conclusion,

from all of the facts presented, that the bounds of due process have

been exceeded. Id. at  [384 U.S. 503] III



I would continue to follow that rule.  Under the "totality of

circumstances" rule of which my Brother Goldberg spoke in Haynes, I

would consider in each case whether the police officer, prior to

custodial interrogation, added the warning that the suspect might have

counsel present at the interrogation, and, further, that a court would

appoint one at his request if he was too poor to employ counsel.  In the

absence of warnings, the burden would be on the State to prove that

counsel was knowingly and intelligently waived or that, in the totality

of the circumstances, including the failure to give the necessary

warnings, the confession was clearly voluntary.



Rather than employing the arbitrary Fifth Amendment rule which the Court

lays down, I would follow the more pliable dictates of the Due Process

Clauses of the Fifth and Fourteenth Amendments which we are accustomed

to administering, and which we know from our cases are effective

instruments in protecting persons in police custody.  In this way, we

would not be acting in the dark, nor, in one full sweep, changing the

traditional rules of custodial interrogation which this Court has for so

long recognized as a justifiable and proper tool in balancing individual

rights against the rights of society.  It will be soon enough to go

further when we are able to appraise with somewhat better accuracy the

effect of such a holding.



I would affirm the convictions in Miranda v. Arizona, No. 759; Vignera

v. New York, No. 760, and Westover v. United States, No. 761.  In each

of those cases, I find from the circumstances no warrant for reversal. 

In [384 U.S. 504] California v. Stewart, No. 584, I would dismiss the

writ of certiorari for want of a final judgment, 28 U.S.C.  1257(3)

(1964 ed.); but, if the merits are to be reached, I would affirm on the

ground that the State failed to fulfill its burden, in the absence of a

showing that appropriate warnings were given, of proving a waiver or a

totality of circumstances showing voluntariness.  Should there be a

retrial, I would leave the State free to attempt to prove these

elements. HARLAN, J., dissenting



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

dissenting.



I believe the decision of the Court represents poor constitutional law

and entails harmful consequences for the country at large.  How serious

these consequences may prove to be, only time can tell.  But the basic

flaws in the Court's justification seem to me readily apparent now, once

all sides of the problem are considered. I. INTRODUCTION



At the outset, it is well to note exactly what is required by the

Court's new constitutional code of rules for confessions.  The foremost

requirement, upon which later admissibility of a confession depends, is

that a four-fold warning be given to a person in custody before he is

questioned, namely, that he has a right to remain silent, that anything

he says may be used against him, that he has a right to have present an

attorney during the questioning, and that, if indigent he has a right to

a lawyer without charge.  To forgo these rights, some affirmative

statement of rejection is seemingly required, and threats, tricks, or

cajolings to obtain this waiver are forbidden.  If, before or during

questioning, the suspect seeks to invoke his right to remain silent,

interrogation must be forgone or cease; a request for counsel [384 U.S.

505] brings about the same result until a lawyer is procured.  Finally,

there are a miscellany of minor directives, for example, the burden of

proof of waiver is on the State, admissions and exculpatory statements

are treated just like confessions, withdrawal of a waiver is always

permitted, and so forth.



While the fine points of this scheme are far less clear than the Court

admits, the tenor is quite apparent.  The new rules are not designed to

guard against police brutality or other unmistakably banned forms of

coercion.  Those who use third-degree tactics and deny them in court are

equally able and destined to lie as skillfully about warnings and

waivers.  Rather, the thrust of the new rules is to negate all

pressures, to reinforce the nervous or ignorant suspect, and ultimately

to discourage any confession at all.  The aim, in short, is toward

"voluntariness" in a utopian sense, or, to view it from a different

angle, voluntariness with a vengeance.



To incorporate this notion into the Constitution requires a strained

reading of history and precedent and a disregard of the very pragmatic

concerns that alone may on occasion justify such strains.  I believe

that reasoned examination will show that the Due Process Clauses provide

an adequate tool for coping with confessions ,and that, even if the

Fifth Amendment privilege against self-incrimination be invoked, its

precedents, taken as a whole, do not sustain the present rules.  Viewed

as a choice based on pure policy, these new rules prove to be a highly

debatable, if not one-sided, appraisal of the competing interests,

imposed over widespread objection, at the very time when judicial

restraint is most called for by the circumstances. [384 U.S. 506] II.

CONSTITUTIONAL PREMISES



It is most fitting to begin an inquiry into the constitutional

precedents by surveying the limits on confessions the Court has evolved

under the Due Process Clause of the Fourteenth Amendment.  This is so

because these cases show that there exists a workable and effective

means of dealing with confessions in a judicial manner; because the

cases are the baseline from which the Court now departs, and so serve to

measure the actual, as opposed to the professed, distance it travels,

and because examination of them helps reveal how the Court has coasted

into its present position.



The earliest confession cases in this Court emerged from federal

prosecutions, and were settled on a nonconstitutional basis, the Court

adopting the common law rule that the absence of inducements, promises,

and threats made a confession voluntary and admissible.  Hopt v. Utah,

110 U.S. 574; Pierce v. United States, 160 U.S. 355.  While a later case

said the Fifth Amendment privilege controlled admissibility, this

proposition was not itself developed in subsequent decisions.  The Court

did, however, heighten the test of admissibility in federal trials to

one of voluntariness "in fact," Wan v. [384 U.S. 507] United States, 266

U.S. 1, 14 (quoted, ante p. 462), and then, by and large, left federal

judges to apply the same standards the Court began to derive in a string

of state court cases.



This new line of decisions, testing admissibility by the Due Process

Clause, began in 1936 with Brown v. Mississippi, 297 U.S. 278, and must

now embrace somewhat more than 30 full opinions of the Court.  While the

voluntariness rubric was repeated in many instances, e.g., Lyons v.

Oklahoma, 322 U.S. 596, the Court never pinned it down to a single

meaning, but, on the contrary, infused it with a number of different

values.  To travel quickly over the main themes, there was an initial

emphasis on reliability, e.g., Ward v. Texas, 316 U.S. 547, supplemented

by concern over the legality and fairness of the police practices, e.g.,

Ashcraft v. Tennessee, 322 U.S. 143, in an "accusatorial" system of law

enforcement, Watts v. Indiana, 338 U.S. 49, 54, and eventually by close

attention to the individual's state of mind and capacity for effective

choice, e.g., Gallegos v. Colorado, 370 U.S. 49.  The outcome was a

continuing reevaluation on the facts of each case of how much pressure

on the suspect was permissible. [384 U.S. 508]



Among the criteria often taken into account were threats or imminent

danger, e.g., Payne v. Arkansas, 356 U.S. 560, physical deprivations

such as lack of sleep or food, e.g., Reck v. Pate, 367 U.S. 433,

repeated or extended interrogation, e.g., Chambers v. Florida, 309 U.S.

227, limits on access to counsel or friends, Crooker v. California, 357

U.S. 433; Cicenia v. Lagay, 357 U.S. 504, length and illegality of

detention under state law, e.g., Haynes v. Washington, 373 U.S. 503, and

individual weakness or incapacities, Lynumn v. Illinois, 372 U.S. 528. 

Apart from direct physical coercion, however, no single default or fixed

combination of defaults guaranteed exclusion, and synopses of the cases

would serve little use, because the overall gauge has been steadily

changing, usually in the direction of restricting admissibility.  But to

mark just what point had been reached before the Court jumped the rails

in Escobedo v. Illinois, 378 U.S. 478, it is worth capsulizing the

then-recent case of Haynes v. Washington, 373 U.S. 503.  There, Haynes

had been held some 16 or more hours in violation of state law before

signing the disputed confession, had received no warnings of any kind,

and, despite requests, had been refused access to his wife or to

counsel, the police indicating that access would be allowed after a

confession.  Emphasizing especially this last inducement and rejecting

some contrary indicia of voluntariness, the Court in a 5-to-4 decision,

held the confession inadmissible.



There are several relevant lessons to be drawn from this constitutional

history.  The first is that, with over 25 years of precedent, the Court

has developed an elaborate, sophisticated, and sensitive approach to

admissibility of confessions.  It is "judicial" in its treatment of one

case at a time, see Culombe v. Connecticut, 367 U.S. 568, 635

(concurring opinion of THE CHIEF JUSTICE), flexible in its ability to

respond to the endless mutations of fact presented, and ever more

familiar to the lower courts.  [384 U.S. 509] Of course, strict

certainty is not obtained in this developing process, but this is often

so with constitutional principles, and disagreement is usually confined

to that borderland of close cases where it matters least.



The second point is that, in practice and, from time to time, in

principle, the Court has given ample recognition to society's interest

in suspect questioning as an instrument of law enforcement.  Cases

countenancing quite significant pressures can be cited without

difficulty, and the lower courts may often have been yet more tolerant. 

Of course, the limitations imposed today were rejected by necessary

implication in case after case, the right to warnings having been

explicitly rebuffed in this Court many years ago.  Powers v. United

States, 223 U.S. 303; Wilson v. United States, 162 U.S. 613.  As

recently as Haynes v. Washington, 373 U.S. 503, 515, the Court openly

acknowledged that questioning of witnesses and suspects "is undoubtedly

an essential tool in effective law enforcement."  Accord, Crooker v.

California, 357 U.S. 433, 441.



Finally, the cases disclose that the language in many of the opinions

overstates the actual course of decision.  It has been said, for

example, that an admissible confession must be made by the suspect "in

the unfettered exercise of his own will," Malloy v. Hogan, 378 U.S. 1,

8, and that "a prisoner is not `to be made the deluded instrument of his

own conviction,'" Culombe v. Connecticut, 367 U.S. 568, 581

(Frankfurter, J., announcing the Court's judgment and an opinion). 

Though often repeated, such principles are rarely observed in full

measure.  Even the word "voluntary" may be deemed some [384 U.S. 510]

what misleading, especially when one considers many of the confessions

that have been brought under its umbrella.  See, e.g., supra, n. 5.  The

tendency to overstate may be laid in part to the flagrant facts often

before the Court; but, in any event, one must recognize how it has

tempered attitudes and lent some color of authority to the approach now

taken by the Court.



I turn now to the Court's asserted reliance on the Fifth Amendment, an

approach which I frankly regard as a tromp l'oeil.  The Court's opinion,

in my view, reveals no adequate basis for extending the Fifth

Amendment's privilege against self-incrimination to the police station. 

Far more important, it fails to show that the Court's new rules are well

supported, let alone compelled, by Fifth Amendment precedents.  Instead,

the new rules actually derive from quotation and analogy drawn from

precedents under the Sixth Amendment, which should properly have no

bearing on police interrogation.



The Court's opening contention, that the Fifth Amendment governs police

station confessions, is perhaps not an impermissible extension of the

law but it has little to commend itself in the present circumstances. 

Historically, the privilege against self-incrimination did not bear at

all on the use of extra-legal confessions, for which distinct standards

evolved; indeed, the history of the two principles is wide apart,

differing by one hundred years in origin, and derived through separate

lines of precedents. . . . 8 Wigmore, Evidence  2266, at 401 (McNaughton

rev.1961).  Practice under the two doctrines has also differed in a

number of important respects.  [384 U.S. 511] Even those who would

readily enlarge the privilege must concede some linguistic difficulties,

since the Fifth Amendment, in terms, proscribes only compelling any

person "in any criminal case to be a witness against himself."  Cf.

Kamisar, Equal Justice in the Gatehouses and Mansions of American

Criminal Procedure, in Criminal Justice in Our Time 1, 25-26 (1965).



Though weighty, I do not say these points and similar ones are

conclusive, for, as the Court reiterates, the privilege embodies basic

principles always capable of expansion.  Certainly the privilege does

represent a protective concern for the accused and an emphasis upon

accusatorial, rather than inquisitorial, values in law enforcement,

although this is similarly true of other limitations such as the grand

jury requirement and the reasonable doubt standard.  Accusatorial

values, however, have openly been absorbed into the due process standard

governing confessions; this, indeed, is why, at present, "the kinship of

the two rules [governing confessions and self-incrimination] is too

apparent for denial."  McCormick, Evidence 155 (1954).  Since extension

of the general principle has already occurred, to insist that the

privilege applies as such serves only to carry over inapposite

historical details and engaging rhetoric and to obscure the policy

choices to be made in regulating confessions.



Having decided that the Fifth Amendment privilege does apply in the

police station, the Court reveals that the privilege imposes more

exacting restrictions than does the Fourteenth Amendment's voluntariness

test.  [384 U.S. 512] It then emerges from a discussion of Escobedo that

the Fifth Amendment requires, for an admissible confession, that it be

given by one distinctly aware of his right not to speak and shielded

from "the compelling atmosphere" of interrogation.  See ante   From

these key premises, the Court finally develops the safeguards of

warning, counsel, and so forth.  I do not believe these premises are

sustained by precedents under the Fifth Amendment.



The more important premise is that pressure on the suspect must be

eliminated, though it be only the subtle influence of the atmosphere and

surroundings.  The Fifth Amendment, however, has never been thought to

forbid all pressure to incriminate one's self in the situations covered

by it.  On the contrary, it has been held that failure to incriminate

one's self can result in denial of removal of one's case from state to

federal court, Maryland v. Soper, 270 U.S. 9; in refusal of a military

commission, Orloff v. Willoughby, 345 U.S. 83; in denial of a discharge

in bankruptcy, Kaufman v. Hurwitz, 176 F.2d 210, and in numerous other

adverse consequences.  See 8 Wigmore, Evidence  2272, at 441-444, n. 18

(McNaughton rev.1961); Maguire, Evidence of Guilt  2.062 (1959).  This

is not to say that, short of jail or torture, any sanction is

permissible in any case; policy and history alike may impose sharp

limits.  See, e.g., [384 U.S. 513] Griffin v. California, 380 U.S. 609. 

However, the Court's unspoken assumption that any pressure violates the

privilege is not supported by the precedents, and it has failed to show

why the Fifth Amendment prohibits that relatively mild pressure the Due

Process Clause permits.



The Court appears similarly wrong in thinking that precise knowledge of

one's rights is a settled prerequisite under the Fifth Amendment to the

loss of its protections.  A number of lower federal court cases have

held that grand jury witnesses need not always be warned of their

privilege, e.g., United States v. Scully, 225 F.2d 113, 116, and Wigmore

states this to be the better rule for trial witnesses.  See 8 Wigmore,

Evidence  2269 (McNaughton rev.1961).  Cf. Henry v. Mississippi, 379

U.S. 443, 451-452 (waiver of constitutional rights by counsel despite

defendant's ignorance held allowable).  No Fifth Amendment precedent is

cited for the Court's contrary view.  There might, of course, be reasons

apart from Fifth Amendment precedent for requiring warning or any other

safeguard on questioning, but that is a different matter entirely.  See

infra



A closing word must be said about the Assistance of Counsel Clause of

the Sixth Amendment, which is never expressly relied on by the Court,

but whose judicial precedents turn out to be linchpins of the confession

rules announced today.  To support its requirement of a knowing and

intelligent waiver, the Court cites Johnson v. Zerbst, 304 U.S. 458,

ante p. 475; appointment of counsel for the indigent suspect is tied to

Gideon v. Wainwright, 372 U.S. 335, and Douglas v. California, 372 U.S.

353, ante p. 473; the silent-record doctrine is borrowed from Carnley v.

Cochran, 369 U.S. 506, ante p. 475, as is the right to an express offer

of counsel, ante   All these cases imparting glosses to the Sixth

Amendment concerned counsel at trial or on appeal.  While the Court

finds no pertinent difference between judicial proceedings and police

interrogation, I believe [384 U.S. 514] the differences are so vast as

to disqualify wholly the Sixth Amendment precedents as suitable

analogies in the present cases.{10}



The only attempt in this Court to carry the right to counsel into the

stationhouse occurred in Escobedo, the Court repeating several times

that that stage was no less "critical" than trial itself.  See 378 U.S. 

 This is hardly persuasive when we consider that a grand jury inquiry,

the filing of a certiorari petition, and certainly the purchase of

narcotics by an undercover agent from a prospective defendant may all be

equally "critical," yet provision of counsel and advice on that score

have never been thought compelled by the Constitution in such cases. 

The sound reason why this right is so freely extended for a criminal

trial is the severe injustice risked by confronting an untrained

defendant with a range of technical points of law, evidence, and tactics

familiar to the prosecutor, but not to himself.  This danger shrinks

markedly in the police station, where, indeed, the lawyer, in fulfilling

his professional responsibilities, of necessity may become an obstacle

to truthfinding.  See infra, n. 12.  The Court's summary citation of the

Sixth Amendment cases here seems to me best described as the domino

method of constitutional adjudication . . . , wherein every explanatory

statement in a previous opinion is made the basis for extension to a

wholly different situation. Friendly, supra, n. 10, at 950. III. POLICY

CONSIDERATIONS



Examined as an expression of public policy, the Court's new regime

proves so dubious that there can be no due [384 U.S. 515] compensation

for its weakness in constitutional law.  The foregoing discussion has

shown, I think, how mistaken is the Court in implying that the

Constitution has struck the balance in favor of the approach the Court

takes.  Ante,   Rather, precedent reveals that the Fourteenth Amendment,

in practice, has been construed to strike a different balance, that the

Fifth Amendment gives the Court little solid support in this context,

and that the Sixth Amendment should have no bearing at all.  Legal

history has been stretched before to satisfy deep needs of society.  In

this instance, however, the Court has not and cannot make the powerful

showing that its new rules are plainly desirable in the context of our

society, something which is surely demanded before those rules are

engrafted onto the Constitution and imposed on every State and county in

the land.



Without at all subscribing to the generally black picture of police

conduct painted by the Court, I think it must be frankly recognized at

the outset that police questioning allowable under due process

precedents may inherently entail some pressure on the suspect, and may

seek advantage in his ignorance or weaknesses.  The atmosphere and

questioning techniques, proper and fair though they be, can, in

themselves, exert a tug on the suspect to confess, and, in this light,

[t]o speak of any confessions of crime made after arrest as being

"voluntary" or "uncoerced" is somewhat inaccurate, although traditional.

 A confession is wholly and incontestably voluntary only if a guilty

person gives himself up to the law and becomes his own accuser. Ashcraft

v. Tennessee, 322 U.S. 143, 161 (Jackson, J., dissenting).  Until today,

the role of the Constitution has been only to sift out undue pressure,

not to assure spontaneous confessions.{11} [384 U.S. 516]



The Court's new rules aim to offset these minor pressures and

disadvantages intrinsic to any kind of police interrogation.  The rules

do not serve due process interests in preventing blatant coercion,

since, as I noted earlier, they do nothing to contain the policeman who

is prepared to lie from the start.  The rules work for reliability in

confessions almost only in the Pickwickian sense that they can prevent

some from being given at all.{12}  In short, the benefit of this new

regime is simply to lessen or wipe out the inherent compulsion and

inequalities to which the Court devotes some nine pages of description. 

Ante,



What the Court largely ignores is that its rules impair, if they will

not eventually serve wholly to frustrate, an instrument of law

enforcement that has long and quite reasonably been thought worth the

price paid for it.{13}  There can be little doubt that the Court's new

code would markedly decrease the number of confessions.  To warn the

suspect that he may remain silent and remind him that his confession may

be used in court are minor obstructions.  To require also an express

waiver by the suspect and an end to questioning whenever he demurs [384

U.S. 517] must heavily handicap questioning.  And to suggest or provide

counsel for the suspect simply invites the end of the interrogation. 

See supra, n. 12.



How much harm this decision will inflict on law enforcement cannot

fairly be predicted with accuracy.  Evidence on the role of confessions

is notoriously incomplete, see Developments, supra, n. 2, at 941-944,

and little is added by the Court's reference to the FBI experience and

the resources believed wasted in interrogation.  See infra, n.19, and

text.  We do know that some crimes cannot be solved without confessions,

that ample expert testimony attests to their importance in crime

control,{14} and that the Court is taking a real risk with society's

welfare in imposing its new regime on the country.  The social costs of

crime are too great to call the new rules anything but a hazardous

experimentation.



While passing over the costs and risks of its experiment, the Court

portrays the evils of normal police questioning in terms which I think

are exaggerated.  Albeit stringently confined by the due process

standards, interrogation is no doubt often inconvenient and unpleasant

for the suspect.  However, it is no less so for a man to be arrested and

jailed, to have his house searched, or to stand trial in court, yet all

this may properly happen to the most innocent, given probable cause, a

warrant, or an indictment.  Society has always paid a stiff price for

law and order, and peaceful interrogation is not one of the dark moments

of the law.



This brief statement of the competing considerations seems to me ample

proof that the Court's preference is highly debatable, at best, and

therefore not to be read into [384 U.S. 518] the Constitution.  However,

it may make the analysis more graphic to consider the actual facts of

one of the four cases reversed by the Court.  Miranda v. Arizona serves

best, being neither the hardest nor easiest of the four under the

Court's standards.{15}



On March 3, 1963, an 18-year-old girl was kidnapped and forcibly raped

near Phoenix, Arizona.  Ten days later, on the morning of March 13,

petitioner Miranda was arrested and taken to the police station.  At

this time, Miranda was 23 years old, indigent, and educated to the

extent of completing half the ninth grade.  He had "an emotional

illness" of the schizophrenic type, according to the doctor who

eventually examined him; the doctor's report also stated that Miranda

was "alert and oriented as to time, place, and person," intelligent

within normal limits, competent to stand trial, and sane within the

legal definition.  At the police station, the victim picked Miranda out

of a lineup, and two officers then took him into a separate room to

interrogate him, starting about 11:30 a.m.  Though at first denying his

guilt, within a short time, Miranda gave a detailed oral confession, and

then wrote out in his own hand and signed a brief statement admitting

and describing the crime.  All this was accomplished in two hours or

less, without any force, threats or promises, and -- I will assume this,

though the record is uncertain, ante and nn 66-67 -- without any

effective warnings at all.



Miranda's oral and written confessions are now held inadmissible under

the Court's new rules.  One is entitled to feel astonished that the

Constitution can be read to produce this result.  These confessions were

obtained [384 U.S. 519] during brief daytime questioning conducted by

two officers and unmarked by any of the traditional indicia of coercion.

 They assured a conviction for a brutal and unsettling crime, for which

the police had and quite possibly could obtain little evidence other

than the victim's identifications, evidence which is frequently

unreliable.  There was, in sum, a legitimate purpose, no perceptible

unfairness, and certainly little risk of injustice in the interrogation.

 Yet the resulting confessions, and the responsible course of police

practice they represent, are to be sacrificed to the Court's own

finespun conception of fairness, which I seriously doubt is shared by

many thinking citizens in this country.{16}



The tenor of judicial opinion also falls well short of supporting the

Court's new approach.  Although Escobedo has widely been interpreted as

an open invitation to lower courts to rewrite the law of confessions, a

significant heavy majority of the state and federal decisions in point

have sought quite narrow interpretations.{17}  Of [384 U.S. 520] the

courts that have accepted the invitation, it is hard to know how many

have felt compelled by their best guess as to this Court's likely

construction; but none of the state decisions saw fit to rely on the

state privilege against self-incrimination, and no decision at all has

gone as far as this Court goes today.{18}



It is also instructive to compare the attitude in this case of those

responsible for law enforcement with the official views that existed

when the Court undertook three major revisions of prosecutorial practice

prior to this case, Johnson v. Zerbst, 304 U.S. 458, Mapp v. Ohio, 367

U.S. 643, and Gideon v. Wainwright, 372 U.S. 335.  In Johnson, which

established that appointed counsel must be offered the indigent in

federal criminal trials, the Federal Government all but conceded the

basic issue, which had, in fact, been recently fixed as Department of

Justice policy.  See Beaney, Right to Counsel 29-30, 342 (1955).  In

Mapp, which imposed the exclusionary rule on the States for Fourth

Amendment violations, more than half of the States had themselves

already adopted some such rule.  See 367 U.S. at 651.  In Gideon, which

extended Johnson v. Zerbst to the States, an amicus brief was filed by

22 States and Commonwealths urging that course; only two States besides

that of the respondent came forward to protest.  See 372 U.S. at 345. 

By contrast, in this case, new restrictions on police [384 U.S. 521]

questioning have been opposed by the United States and in an amicus

brief signed by 27 States and Commonwealths, not including the three

other States which are parties.  No State in the country has urged this

Court to impose the newly announced rules, nor has any State chosen to

go nearly so far on its own.



The Court, in closing its general discussion, invokes the practice in

federal and foreign jurisdictions as lending weight to its new curbs on

confessions for all the States.  A brief resume will suffice to show

that none of these jurisdictions has struck so one-sided a balance as

the Court does today.  Heaviest reliance is placed on the FBI practice. 

Differing circumstances may make this comparison quite

untrustworthy,{19} but, in any event, the FBI falls sensibly short of

the Court's formalistic rules.  For example, there is no indication that

FBI agents must obtain an affirmative "waiver" before they pursue their

questioning.  Nor is it clear that one invoking his right to silence may

not be prevailed upon to change his mind.  And the warning as to

appointed counsel apparently indicates only that one will be assigned by

the judge when the suspect appears before him; the thrust of the Court's

rules is to induce the suspect to obtain appointed counsel before

continuing the interview.  See ante   Apparently, American military

practice, briefly mentioned by the Court, has these same limits, and is

still less favorable to the suspect than the FBI warning, making no

mention of appointed counsel.  Developments, supra, n. 2, at 1084-1089.



The law of the foreign countries described by the Court also reflects a

more moderate conception of the rights of [384 U.S. 522] the accused as

against those of society when other data are considered.  Concededly,

the English experience is most relevant.  In that country, a caution as

to silence, but not counsel, has long been mandated by the "Judges'

Rules," which also place other somewhat imprecise limits on police

cross-examination of suspects.  However, in the court's discretion,

confessions can be, and apparently quite frequently are, admitted in

evidence despite disregard of the Judges' Rules, so long as they are

found voluntary under the common law test.  Moreover, the check that

exists on the use of pretrial statements is counterbalanced by the

evident admissibility of fruits of an illegal confession and by the

judge's often-used authority to comment adversely on the defendant's

failure to testify.{20}  India, Ceylon and Scotland are the other

examples chosen by the Court.  In India and Ceylon, the general ban on

police-adduced confessions cited by the Court is subject to a major

exception:  if evidence is uncovered by police questioning, it is fully

admissible at trial along with the confession itself, so far as it

relates to the evidence and is not blatantly coerced.  See Developments,

supra, n. 2, at 1106-1110; Reg. v. Ramasamy [1965] A.C. 1 (P.C.). 

Scotland's limits on interrogation do measure up to the Court's;

however, restrained comment at trial on the defendant's failure to take

the stand is allowed the judge, and, in many other respects, Scotch law

redresses the prosecutor's disadvantage in ways not permitted in this

country.{21}  The Court ends its survey by imputing [384 U.S. 523] added

strength to our privilege against self-incrimination since, by contrast

to other countries, it is embodied in a written Constitution. 

Considering the liberties the Court has today taken with constitutional

history and precedent, few will find this emphasis persuasive.



In closing this necessarily truncated discussion of policy

considerations attending the new confession rules, some reference must

be made to their ironic untimeliness.  There is now in progress in this

country a massive reexamination of criminal law enforcement procedures

on a scale never before witnessed.  Participants in this undertaking

include a Special Committee of the American Bar Association, under the

chairmanship of Chief Judge Lumbard of the Court of Appeals for the

Second Circuit; a distinguished study group of the American Law

Institute, headed by Professors Vorenberg and Bator of the Harvard Law

School, and the President's Commission on Law Enforcement and

Administration of Justice, under the leadership of the Attorney General

of the United States.{22}  Studies are also being conducted by the

District of Columbia Crime Commission, the Georgetown Law Center, and by

others equipped to do practical research.{23}  There are also signs that

legislatures in some of the States may be preparing to reexamine the

problem before us.{24} [384 U.S. 524]



It is no secret that concern has been expressed lest long-range and

lasting reforms be frustrated by this Court's too rapid departure from

existing constitutional standards.  Despite the Court's disclaimer, the

practical effect of the decision made today must inevitably be to

handicap seriously sound efforts at reform, not least by removing

options necessary to a just compromise of competing interests.  Of

course, legislative reform is rarely speedy or unanimous, though this

Court has been more patient in the past.{25}  But the legislative

reforms, when they come, would have the vast advantage of empirical data

and comprehensive study, they would allow experimentation and use of

solutions not open to the courts, and they would restore the initiative

in criminal law reform to those forums where it truly belongs. IV.

CONCLUSIONS



All four of the cases involved here present express claims that

confessions were inadmissible not because of coercion in the traditional

due process sense, but solely because of lack of counsel or lack of

warnings concerning counsel and silence.  For the reasons stated in this

opinion, I would adhere to the due process test and reject the new

requirements inaugurated by the Court.  On this premise, my disposition

of each of these cases can be stated briefly.



In two of the three cases coming from state courts, Miranda v. Arizona

(No. 759) and Vignera v. New York (No. 760), the confessions were held

admissible, and no other errors worth comment are alleged by

petitioners.  [384 U.S. 525] I would affirm in these two cases.  The

other state case is California v. Stewart (No. 584), where the state

supreme court held the confession inadmissible, and reversed the

conviction.  In that case, I would dismiss the writ of certiorari on the

ground that no final judgment is before us, 28 U.S.C. 1257 (1964 ed.);

putting aside the new trial open to the State in any event, the

confession itself has not even been finally excluded, since the

California Supreme Court left the State free to show proof of a waiver. 

If the merits of the decision in Stewart be reached, then I believe it

should be reversed, and the case remanded so the state supreme court may

pass on the other claims available to respondent.



In the federal case, Westover v. United States (No. 761), a number of

issues are raised by petitioner apart from the one already dealt with in

this dissent.  None of these other claims appears to me tenable, nor in

this context to warrant extended discussion.  It is urged that the

confession was also inadmissible because not voluntary, even measured by

due process standards, and because federal-state cooperation brought the

McNabb-Mallory rule into play under Anderson v. United States, 318 U.S.

350.  However, the facts alleged fall well short of coercion, in my

view, and I believe the involvement of federal agents in petitioner's

arrest and detention by the State too slight to invoke Anderson.  I

agree with the Government that the admission of the evidence now

protested by petitioner was, at most, harmless error, and two final

contentions -- one involving weight of the evidence and another improper

prosecutor comment -- seem to me without merit.  I would therefore

affirm Westover's conviction.



In conclusion:  nothing in the letter or the spirit of the Constitution

or in the precedents squares with the heavy-handed and one-sided action

that is so precipitously [384 U.S. 526] taken by the Court in the name

of fulfilling its constitutional responsibilities.  The foray which the

Court makes today brings to mind the wise and farsighted words of Mr.

Justice Jackson in Douglas v. Jeannette, 319 U.S. 157, 181 (separate

opinion): This Court is forever adding new stories to the temples of

constitutional law, and the temples have a way of collapsing when one

story too many is added. WHITE, J., dissenting



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

join, dissenting. I



The proposition that the privilege against self-incrimination forbids

in-custody interrogation without the warnings specified in the majority

opinion and without a clear waiver of counsel has no significant support

in the history of the privilege or in the language of the Fifth

Amendment.  As for the English authorities and the common law history,

the privilege, firmly established in the second half of the seventeenth

century, was never applied except to prohibit compelled judicial

interrogations.  The rule excluding coerced confessions matured about

100 years later, [b]ut there is nothing in the reports to suggest that

the theory has its roots in the privilege against self-incrimination. 

And, so far as the cases reveal, the privilege, as such, seems to have

been given effect only in judicial proceedings, including the

preliminary examinations by authorized magistrates. Morgan, The

Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1, 18 (1949).



Our own constitutional provision provides that no person "shall be

compelled in any criminal case to be a witness against himself."  These

words, when [c]onsidered in the light to be shed by grammar and the

dictionary . . . , appear to signify simply that nobody shall be [384

U.S. 527] compelled to give oral testimony against himself in a criminal

proceeding under way in which he is defendant. Corwin, The Supreme

Court's Construction of the Self-Incrimination Clause, 29 Mich.L.Rev. 1,

2.  And there is very little in the surrounding circumstances of the

adoption of the Fifth Amendment or in the provisions of the then

existing state constitutions or in state practice which would give the

constitutional provision any broader meaning.  Mayers, The Federal

Witness' Privilege Against Self-Incrimination:  Constitutional or

Common-Law? 4 American Journal of Legal History 107 (1960).  Such a

construction, however, was considerably narrower than the privilege at

common law, and, when eventually faced with the issues, the Court

extended the constitutional privilege to the compulsory production of

books and papers, to the ordinary witness before the grand jury, and to

witnesses generally.  Boyd v. United States, 116 U.S. 616, and

Counselman v. Hitchcock, 142 U.S. 547.  Both rules had solid support in

common law history, if not in the history of our own constitutional

provision.



A few years later, the Fifth Amendment privilege was similarly extended

to encompass the then well established rule against coerced confessions:



In criminal trials, in the courts of the United States, wherever a

question arises whether a confession is incompetent because not

voluntary, the issue is controlled by that portion of the Fifth

Amendment to the Constitution of the United States, commanding that no

person "shall be compelled in any criminal case to be a witness against

himself." Bram v. United States, 168 U.S. 532, 542.  Although this view

has found approval in other cases, Burdeau v. McDowell, 256 U.S. 465,

475; Powers v. United States, 223 U.S. 303, 313; Shotwell v. United

States, 371 U.S. 341, 347, it has also been questioned, see Brown v.

Mississippi, 297 U.S. 278, 285; United States v. Carignan, [384 U.S.

528] 342 U.S. 36, 41; Stein v. New York, 346 U.S. 156, 191, n. 35, and

finds scant support in either the English or American authorities, see

generally Regina v. Scott, Dears. & Bell 47; 3 Wigmore, Evidence  823

(3d ed.1940), at 249 ("a confession is not rejected because of any

connection with the privilege against self-crimination"), and 250, n. 5

(particularly criticizing Bram); 8 Wigmore, Evidence  2266, at 400-401

(McNaughton rev.1961).  Whatever the source of the rule excluding

coerced confessions, it is clear that, prior to the application of the

privilege itself to state courts, Malloy v. Hogan, 378 U.S. 1, the

admissibility of a confession in a state criminal prosecution was tested

by the same standards as were applied in federal prosecutions.  Id. at

6-7, 10.



Bram, however, itself rejected the proposition which the Court now

espouses.  The question in Bram was whether a confession, obtained

during custodial interrogation, had been compelled, and, if such

interrogation was to be deemed inherently vulnerable, the Court's

inquiry could have ended there.  After examining the English and

American authorities, however, the Court declared that: In this court

also, it has been settled that the mere fact that the confession is made

to a police officer, while the accused was under arrest in or out of

prison, or was drawn out by his questions, does not necessarily render

the confession involuntary, but, as one of the circumstances, such

imprisonment or interrogation may be taken into account in determining

whether or not the statements of the prisoner were voluntary. 168 U.S.

at 558.  In this respect, the Court was wholly consistent with prior and

subsequent pronouncements in this Court.



Thus, prior to Bram, the Court, in Hopt v. Utah, 110 U.S. 574, 583-587,

had upheld the admissibility of a [384 U.S. 529] confession made to

police officers following arrest, the record being silent concerning

what conversation had occurred between the officers and the defendant in

the short period preceding the confession.  Relying on Hopt, the Court

ruled squarely on the issue in Sparf and Hansen v. United States, 156

U.S. 51, 55:



Counsel for the accused insist that there cannot be a voluntary

statement, a free open confession, while a defendant is confined and in

irons under an accusation of having committed a capital offence.  We

have not been referred to any authority in support of that position.  It

is true that the fact of a prisoner's being in custody at the time he

makes a confession is a circumstance not to be overlooked, because it

bears upon the inquiry whether the confession was voluntarily made or

was extorted by threats or violence or made under the influence of fear.

 But confinement or imprisonment is not, in itself, sufficient to

justify the exclusion of a confession if it appears to have been

voluntary, and was not obtained by putting the prisoner in fear or by

promises.  Wharton's Cr.Ev. 9th ed.  661, 663, and authorities cited.

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



And in Wilson v. United States, 162 U.S. 613, 623, the Court had

considered the significance of custodial interrogation without any

antecedent warnings regarding the right to remain silent or the right to

counsel.  There, the defendant had answered questions posed by a

Commissioner, who had failed to advise him of his rights, and his

answers were held admissible over his claim of involuntariness. The fact

that [a defendant] is in custody and manacled does not necessarily

render his statement involuntary, nor is that necessarily the effect of

popular excitement shortly preceding. . . .  And it is laid down [384

U.S. 530] that it is not essential to the admissibility of a confession

that it should appear that the person was warned that what he said would

be used against him, but, on the contrary, if the confession was

voluntary, it is sufficient though it appear that he was not so warned.



Since Bram, the admissibility of statements made during custodial

interrogation has been frequently reiterated.  Powers v. United States,

223 U.S. 303, cited Wilson approvingly and held admissible as voluntary

statements the accused's testimony at a preliminary hearing even though

he was not warned that what he said might be used against him.  Without

any discussion of the presence or absence of warnings, presumably

because such discussion was deemed unnecessary, numerous other cases

have declared that "[t]he mere fact that a confession was made while in

the custody of the police does not render it inadmissible," McNabb v.

United States, 318 U.S. 332, 346; accord, United States v. Mitchell, 322

U.S. 65, despite its having been elicited by police examination, Wan v.

United States, 266 U.S. 1, 14; United States v. Carignan, 342 U.S. 36,

39.  Likewise, in Crooker v. California, 357 U.S. 433, 437, the Court

said that the bare fact of police "detention and police examination in

private of one in official state custody" does not render involuntary a

confession by the one so detained. And finally, in Cicenia v. Lagay, 357

U.S. 504, a confession obtained by police interrogation after arrest was

held voluntary even though the authorities refused to permit the

defendant to consult with his attorney.  See generally Culombe v.

Connecticut, 367 U.S. 568, 587-602 (opinion of Frankfurter, J.); 3

Wigmore, Evidence  851, at 313 (3d ed.1940); see also Joy, Admissibility

of Confessions 38, 46 (1842).



Only a tiny minority of our judges who have dealt with the question,

including today's majority, have considered in-custody interrogation,

without more, to be a violation of the Fifth Amendment.  And this Court,

as [384 U.S. 531] every member knows, has left standing literally

thousands of criminal convictions that rested at least in part on

confessions taken in the course of interrogation by the police after

arrest. II



That the Court's holding today is neither compelled nor even strongly

suggested by the language of the Fifth Amendment, is at odds with

American and English legal history, and involves a departure from a long

line of precedent does not prove either that the Court has exceeded its

powers or that the Court is wrong or unwise in its present

reinterpretation of the Fifth Amendment.  It does, however, underscore

the obvious -- that the Court has not discovered or found the law in

making today's decision, nor has it derived it from some irrefutable

sources; what it has done is to make new law and new public policy in

much the same way that it has in the course of interpreting other great

clauses of the Constitution.  This is what the Court historically has

done.  Indeed, it is what it must do, and will continue to do until and

unless there is some fundamental change in the constitutional

distribution of governmental powers.



But if the Court is here and now to announce new and fundamental policy

to govern certain aspects of our affairs, it is wholly legitimate to

examine the mode of this or any other constitutional decision in this

Court, and to inquire into the advisability of its end product in terms

of the long-range interest of the country.  At the very least, the

Court's text and reasoning should withstand analysis, and be a fair

exposition of the constitutional provision which its opinion interprets.

 Decisions [384 U.S. 532] like these cannot rest alone on syllogism,

metaphysics or some ill-defined notions of natural justice, although

each will perhaps play its part.  In proceeding to such constructions as

it now announces, the Court should also duly consider all the factors

and interests bearing upon the cases, at least insofar as the relevant

materials are available, and, if the necessary considerations are not

treated in the record or obtainable from some other reliable source, the

Court should not proceed to formulate fundamental policies based on

speculation alone. III



First, we may inquire what are the textual and factual bases of this new

fundamental rule.  To reach the result announced on the grounds it does,

the Court must stay within the confines of the Fifth Amendment, which

forbids self-incrimination only if compelled.  Hence, the core of the

Court's opinion is that, because of the compulsion inherent in custodial

surroundings, no statement obtained from [a] defendant [in custody] can

truly be the product of his free choice, ante at 458, absent the use of

adequate protective devices as described by the Court.  However, the

Court does not point to any sudden inrush of new knowledge requiring the

rejection of 70 years' experience.  Nor does it assert that its novel

conclusion reflects a changing consensus among state courts, see Mapp v.

Ohio, 367 U.S. 643, or that a succession of cases had steadily eroded

the old rule and proved it unworkable, see Gideon v. Wainwright, 372

U.S. 335.  Rather than asserting new knowledge, the Court concedes that

it cannot truly know what occurs during custodial questioning, because

of the innate secrecy of such proceedings.  It extrapolates a picture of

what it conceives to be the norm from police investigatorial manuals,

published in 1959 and 1962 or earlier, without any attempt to allow for

adjustments in police practices that may [384 U.S. 533] have occurred in

the wake of more recent decisions of state appellate tribunals or this

Court.  But even if the relentless application of the described

procedures could lead to involuntary confessions, it most assuredly does

not follow that each and every case will disclose this kind of

interrogation or this kind of consequence.  Insofar as appears from the

Court's opinion, it has not examined a single transcript of any police

interrogation, let alone the interrogation that took place in any one of

these cases which it decides today.  Judged by any of the standards for

empirical investigation utilized in the social sciences, the factual

basis for the Court's premise is patently inadequate.



Although, in the Court's view, in-custody interrogation is inherently

coercive, the Court says that the spontaneous product of the coercion of

arrest and detention is still to be deemed voluntary.  An accused,

arrested on probable cause, may blurt out a confession which will be

admissible despite the fact that he is alone and in custody, without any

showing that he had any notion of his right to remain silent or of the

consequences of his admission.  Yet, under the Court's rule, if the

police ask him a single question, such as "Do you have anything to say?"

or "Did you kill your wife?", his response, if there is one, has somehow

been compelled, even if the accused has [384 U.S. 534] been clearly

warned of his right to remain silent.  Common sense informs us to the

contrary.  While one may say that the response was "involuntary" in the

sense the question provoked or was the occasion for the response, and

thus the defendant was induced to speak out when he might have remained

silent if not arrested and not questioned, it is patently unsound to say

the response is compelled.



Today's result would not follow even if it were agreed that, to some

extent, custodial interrogation is inherently coercive.  See Ashcraft v.

Tennessee, 322 U.S. 143, 161 (Jackson, J., dissenting).  The test has

been whether the totality of circumstances deprived the defendant of a

"free choice to admit, to deny, or to refuse to answer," Lisenba v.

California, 314 U.S. 219, 241, and whether physical or psychological

coercion was of such a degree that "the defendant's will was overborne

at the time he confessed," Haynes v. Washington, 373 U.S. 503, 513;

Lynumn v. Illinois, 372 U.S. 528, 534.  The duration and nature of

incommunicado custody, the presence or absence of advice concerning the

defendant's constitutional rights, and the granting or refusal of

requests to communicate with lawyers, relatives or friends have all been

rightly regarded as important data bearing on the basic inquiry.  See,

e.g., Ashcraft v. Tennessee, 322 U.S. 143; Haynes v. Washington, 373

U.S. 503.  [384 U.S. 535] But it has never been suggested, until today,

that such questioning was so coercive and accused persons so lacking in

hardihood that the very first response to the very first question

following the commencement of custody must be conclusively presumed to

be the product of an overborne will.



If the rule announced today were truly based on a conclusion that all

confessions resulting from custodial interrogation are coerced, then it

would simply have no rational foundation.  Compare Tot v. United States,

319 U.S. 463, 466; United States v. Romano, 382 U.S. 136.  A fortiori,

that would be true of the extension of the rule to exculpatory

statements, which the Court effects after a brief discussion of why, in

the Court's view, they must be deemed incriminatory, but without any

discussion of why they must be deemed coerced.  See Wilson v. United

States, 162 U.S. 613, 624.  Even if one were to postulate that the

Court's concern is not that all confessions induced by police

interrogation are coerced, but rather that some such confessions are

coerced and present judicial procedures are believed to be inadequate to

identify the confessions that are coerced and those that are not, it

would still not be essential to impose the rule that the Court has now

fashioned.  Transcripts or observers could be required, specific time

limits, tailored to fit the cause, could be imposed, or other devices

could be utilized to reduce the chances that otherwise indiscernible

coercion will produce an inadmissible confession.



On the other hand, even if one assumed that there was an adequate

factual basis for the conclusion that all confessions obtained during

in-custody interrogation are the product of compulsion, the rule

propounded by [384 U.S. 536] the Court would still be irrational, for,

apparently, it is only if the accused is also warned of his right to

counsel and waives both that right and the right against

self-incrimination that the inherent compulsiveness of interrogation

disappears.  But if the defendant may not answer without a warning a

question such as "Where were you last night?" without having his answer

be a compelled one, how can the Court ever accept his negative answer to

the question of whether he wants to consult his retained counsel or

counsel whom the court will appoint?  And why, if counsel is present and

the accused nevertheless confesses, or counsel tells the accused to tell

the truth and that is what the accused does, is the situation any less

coercive insofar as the accused is concerned?  The Court apparently

realizes its dilemma of foreclosing questioning without the necessary

warnings but, at the same time, permitting the accused, sitting in the

same chair in front of the same policemen, to waive his right to consult

an attorney.  It expects, however, that the accused will not often waive

the right, and, if it is claimed that he has, the State faces a severe,

if not impossible burden of proof.



All of this makes very little sense in terms of the compulsion which the

Fifth Amendment proscribes.  That amendment deals with compelling the

accused himself.  It is his free will that is involved.  Confessions and

incriminating admissions, as such, are not forbidden evidence; only

those which are compelled are banned.  I doubt that the Court observes

these distinctions today.  By considering any answers to any

interrogation to be compelled regardless of the content and course of

examination, and by escalating the requirements to prove waiver, the

Court not only prevents the use of compelled confessions, but, for all

practical purposes, forbids interrogation except in the presence of

counsel.  That is, instead of confining itself to protection of the

right against compelled [384 U.S. 537] self-incrimination the Court has

created a limited Fifth Amendment right to counsel -- or, as the Court

expresses it, a "need for counsel to protect the Fifth Amendment

privilege. . . ."  Ante at 470.  The focus then is not on the will of

the accused, but on the will of counsel, and how much influence he can

have on the accused.  Obviously there is no warrant in the Fifth

Amendment for thus installing counsel as the arbiter of the privilege.



In sum, for all the Court's expounding on the menacing atmosphere of

police interrogation procedures, it has failed to supply any foundation

for the conclusions it draws or the measures it adopts. IV



Criticism of the Court's opinion, however, cannot stop with a

demonstration that the factual and textual bases for the rule it

propounds are, at best, less than compelling.  Equally relevant is an

assessment of the rule's consequences measured against community values.

 The Court's duty to assess the consequences of its action is not

satisfied by the utterance of the truth that a value of our system of

criminal justice is "to respect the inviolability of the human

personality" and to require government to produce the evidence against

the accused by its own independent labors.  Ante at 460.  More than the

human dignity of the accused is involved; the human personality of

others in the society must also be preserved.  Thus, the values

reflected by the privilege are not the sole desideratum; society's

interest in the general security is of equal weight.



The obvious underpinning of the Court's decision is a deep-seated

distrust of all confessions.  As the Court declares that the accused may

not be interrogated without counsel present, absent a waiver of the

right to counsel, and as the Court all but admonishes the lawyer to [384

U.S. 538] advise the accused to remain silent, the result adds up to a

judicial judgment that evidence from the accused should not be used

against him in any way, whether compelled or not.  This is the not so

subtle overtone of the opinion -- that it is inherently wrong for the

police to gather evidence from the accused himself.  And this is

precisely the nub of this dissent.  I see nothing wrong or immoral, and

certainly nothing unconstitutional, in the police's asking a suspect

whom they have reasonable cause to arrest whether or not he killed his

wife, or in confronting him with the evidence on which the arrest was

based, at least where he has been plainly advised that he may remain

completely silent, see Escobedo v. Illinois, 378 U.S. 478, 499

(dissenting opinion).  Until today, "the admissions or confessions of

the prisoner, when voluntarily and freely made, have always ranked high

in the scale of incriminating evidence."  Brown v. Walker, 161 U.S. 591,

596; see also Hopt v. Utah, 110 U.S. 574, 584-585.  Particularly when

corroborated, as where the police have confirmed the accused's

disclosure of the hiding place of implements or fruits of the crime,

such confessions have the highest reliability, and significantly

contribute to the certitude with which we may believe the accused is

guilty.  Moreover, it is by no means certain that the process of

confessing is injurious to the accused.  To the contrary, it may provide

psychological relief, and enhance the prospects for rehabilitation. 

This is not to say that the value of respect for the inviolability of

the accused's individual personality should be accorded no weight, or

that all confessions should be indiscriminately admitted.  This Court

has long read the Constitution to proscribe compelled confessions, a

salutary rule from which there should be no retreat.  But I see no sound

basis, factual or otherwise, and the Court gives none, for concluding

that the present rule against the receipt of coerced confessions is

inadequate for the [384 U.S. 539] task of sorting out inadmissible

evidence, and must be replaced by the per se rule which is now imposed. 

Even if the new concept can be said to have advantages of some sort over

the present law, they are far outweighed by its likely undesirable

impact on other very relevant and important interests.



The most basic function of any government is to provide for the security

of the individual and of his property.  Lanzetta v. New Jersey, 306 U.S.

451, 455.  These ends of society are served by the criminal laws which

for the most part are aimed at the prevention of crime.  Without the

reasonably effective performance of the task of preventing private

violence and retaliation, it is idle to talk about human dignity and

civilized values.



The modes by which the criminal laws serve the interest in general

security are many.  First, the murderer who has taken the life of

another is removed from the streets, deprived of his liberty, and

thereby prevented from repeating his offense.  In view of the statistics

on recidivism in this country, and of the number of instances [384 U.S.

540] in which apprehension occurs only after repeated offenses, no one

can sensibly claim that this aspect of the criminal law does not prevent

crime or contribute significantly to the personal security of the

ordinary citizen.



Secondly, the swift and sure apprehension of those who refuse to respect

the personal security and dignity of their neighbor unquestionably has

its impact on others who might be similarly tempted.  That the criminal

law is wholly or partly ineffective with a segment of the population or

with many of those who have been apprehended and convicted is a very

faulty basis for concluding that it is not effective with respect to the

great bulk of our citizens, or for thinking that, without the criminal

laws, [384 U.S. 541] or in the absence of their enforcement, there would

be no increase in crime.  Arguments of this nature are not borne out by

any kind of reliable evidence that I have seen to this date.



Thirdly, the law concerns itself with those whom it has confined.  The

hope and aim of modern penology, fortunately, is as soon as possible to

return the convict to society a better and more law-abiding man than

when he left.  Sometimes there is success, sometimes failure.  But at

least the effort is made, and it should be made to the very maximum

extent of our present and future capabilities.



The rule announced today will measurably weaken the ability of the

criminal law to perform these tasks.  It is a deliberate calculus to

prevent interrogations, to reduce the incidence of confessions and pleas

of guilty, and to increase the number of trials.  Criminal trials, no

[384 U.S. 542] matter how efficient the police are, are not sure bets

for the prosecution, nor should they be if the evidence is not

forthcoming.   Under the present law, the prosecution fails to prove its

case in about 30% of the criminal cases actually tried in the federal

courts.  See Federal Offenders:  1964,  supra, note 4, at 6 (Table 4),

59 (Table 1); Federal Offenders:  1963, supra, note 4, at 5 (Table 3);

District of Columbia Offenders:  1963, supra, note 4, at 2 (Table 1). 

But it is something else again to remove from the ordinary criminal case

all those confessions which heretofore have been held to be free and

voluntary acts of the accused, and to thus establish a new

constitutional barrier to the ascertainment of truth by the judicial

process.  There is, in my view, every reason to believe that a good many

criminal defendants who otherwise would have been convicted on what this

Court has previously thought to be the most satisfactory kind of

evidence will now, under this new version of the Fifth Amendment, either

not be tried at all or will be acquitted if the State's evidence, minus

the confession, is put to the test of litigation.



I have no desire whatsoever to share the responsibility for any such

impact on the present criminal process.



In some unknown number of cases, the Court's rule will return a killer,

a rapist or other criminal to the streets and to the environment which

produced him, to repeat his crime whenever it pleases him.  As a

consequence, there will not be a gain, but a loss, in human dignity. 

The real concern is not the unfortunate consequences of this new

decision on the criminal law as an abstract, disembodied series of

authoritative proscriptions, but the impact on those who rely on the

public authority for protection, and who, without it, can only engage in

violent self-help with guns, knives and the help of their neighbors

similarly inclined.  There is, of [384 U.S. 543] course, a saving

factor:  the next victims are uncertain, unnamed and unrepresented in

this case.



Nor can this decision do other than have a corrosive effect on the

criminal law as an effective device to prevent crime.  A major component

in its effectiveness in this regard is its swift and sure enforcement. 

The easier it is to get away with rape and murder, the less the

deterrent effect on those who are inclined to attempt it.  This is still

good common sense.  If it were not, we should post-haste liquidate the

whole law enforcement establishment as a useless, misguided effort to

control human conduct.



And what about the accused who has confessed or would confess in

response to simple, noncoercive questioning and whose guilt could not

otherwise be proved?  Is it so clear that release is the best thing for

him in every case?  Has it so unquestionably been resolved that, in each

and every case, it would be better for him not to confess, and to return

to his environment with no attempt whatsoever to help him?  I think not.

 It may well be that, in many cases, it will be no less than a callous

disregard for his own welfare, as well as for the interests of his next

victim.



There is another aspect to the effect of the Court's rule on the person

whom the police have arrested on probable cause.  The fact is that he

may not be guilty at all, and may be able to extricate himself quickly

and simply if he were told the circumstances of his arrest and were

asked to explain.  This effort, and his release, must now await the

hiring of a lawyer or his appointment by the court, consultation with

counsel, and then a session with the police or the prosecutor. 

Similarly, where probable cause exists to arrest several suspects, as

where the body of the victim is discovered in a house having several

residents, compare Johnson v. State, 238 Md. 140, 207 A.2d 643 (1965),

cert. denied, 382 U.S. 1013, it will often [384 U.S. 544] be true that a

suspect may be cleared only through the results of interrogation of

other suspects.  Here too, the release of the innocent may be delayed by

the Court's rule.



Much of the trouble with the Court's new rule is that it will operate

indiscriminately in all criminal cases, regardless of the severity of

the crime or the circumstances involved. It applies to every defendant,

whether the professional criminal or one committing a crime of momentary

passion who is not part and parcel of organized crime. It will slow down

the investigation and the apprehension of confederates in those cases

where time is of the essence, such as kidnapping, see Brinegar v. United

States, 338 U.S. 160, 183 (Jackson, J., dissenting); People v. Modesto,

62 Cal.2d 436, 446, 398 P.2d 753, 759 (1965), those involving the

national security, see United States v. Drummond, 354 F.2d 132, 147

(C.A.2d Cir.1965) (en banc) (espionage case), pet. for cert. pending,

No. 1203, Misc., O.T. 1965; cf. Gessner v. United States, 354 F.2d 726,

730, n. 10 (C.A. 10th Cir.1965) (upholding, in espionage case, trial

ruling that Government need not submit classified portions of

interrogation transcript), and some of those involving organized crime. 

In the latter context, the lawyer who arrives may also be the lawyer for

the defendant's colleagues, and can be relied upon to insure that no

breach of the organization's security takes place even though the

accused may feel that the best thing he can do is to cooperate.



At the same time, the Court's per se approach may not be justified on

the ground that it provides a "bright line" permitting the authorities

to judge in advance whether interrogation may safely be pursued without

jeopardizing the admissibility of any information obtained as a

consequence.  Nor can it be claimed that judicial time and effort,

assuming that is a relevant consideration, [384 U.S. 545] will be

conserved because of the ease of application of the new rule.  Today's

decision leaves open such questions as whether the accused was in

custody, whether his statements were spontaneous or the product of

interrogation, whether the accused has effectively waived his rights,

and whether nontestimonial evidence introduced at trial is the fruit of

statements made during a prohibited interrogation, all of which are

certain to prove productive of uncertainty during investigation and

litigation during prosecution.  For all these reasons, if further

restrictions on police interrogation are desirable at this time, a more

flexible approach makes much more sense than the Court's constitutional

straitjacket, which forecloses more discriminating treatment by

legislative or rulemaking pronouncements.



Applying the traditional standards to the cases before the Court, I

would hold these confessions voluntary.  I would therefore affirm in

Nos. 759, 760, and 761, and reverse in No. 584. Footnotes WARREN, J.,

lead opinion (Footnotes)



* Together with No. 760, Vignera v. New York, on certiorari to the Court

of Appeals of New York and No. 761, Westover v. United States, on

certiorari to the United States Court of Appeals for the Ninth Circuit,

both argued February 28-March 1, 1966, and No. 584, California v.

Stewart, on certiorari to the Supreme Court of California, argued

February 28-March 2, 1966.



1. Compare 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

[I]t 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.



16. Ibid.



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.



21. Ibid.



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 --

brainwashing, 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 codefendants, 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).



26. The 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

(1965):



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, 116, 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, (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,

(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.



37. See 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. 440, 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).



41. See 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 9 (1963):

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 factfinding

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.



46. The 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. Chalmer v. H. M. Advocate, [1954] 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. 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, 51519 (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.



54. In 1952, J. Edgar Hoover, Director of the Federal Bureau of

Investigation, stated:



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).



57. [1964] 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 terms:



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., [1964] Crim.L.Rev. at 182,

and articles collected in [1960] Crim.L.Rev. at 298-356.



58. The 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. . . . [1964] Crim.L.Rev. at

166-167.



59. As stated by the Lord Justice General in Chalmers v. H.M Advocate,

[1954] 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.



60. "No confession made to a police officer shall be proved as against a

person accused of any offence."  Indian Evidence Act  25.



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: [I]t 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).



71. After 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. CLARK, J., concurring and dissenting

(Footnotes)



1. E.g., Inbau & Reid, Criminal Interrogation and Confessions (196);

O'Hara, Fundamentals Of Criminal Investigation (1956); Dienstein,

Technics for the Crime Investigator (1952); Mulbar, Interrogation

(1951); Kidd, Police Interrogation (1940).



2. As developed by my Brother HARLAN, post pp.  such cases, with the

exception of the long-discredited decision in Bram v. United States, 168

U.S. 532 (1897), were adequately treated in terms of due process.



3. The Court points to England, Scotland, Ceylon and India as having

equally rigid rules.  As in Brother HARLAN points out, post, pp.  the

Court is mistaken in this regard, for it overlooks counterbalancing

prosecutorial advantages.  Moreover, the requirements of the Federal

Bureau of Investigation do not appear from the Solicitor General's

letter, ante, pp. 484-46, to be as strict as those imposed today in at

least two respects:  (1) The offer of counsel is articulated only as "a

right to counsel"; nothing is said about a right to have counsel present

at the custodial interrogation.  (See also the examples cited by the

Solicitor General, Westover v. United States, 342 F.2d 684, 685 (1965)

("right to consult counsel"); Jackson v. United States, 337 F.2d 136,

138 (1964) (accused "entitled to an attorney").)  Indeed, the practice

is that, whenever the suspect decides that he wishes to consult with

counsel before making a statement, the interview is terminated at that

point. . . .  When counsel appears in person, he is permitted to confer

with his client in private. This clearly indicates that the FBI does not

warn that counsel may be present during custodial interrogation.  (2)

The Solicitor General's letter states: [T]hose who have been arrested

for an offense under FBI jurisdiction, or whose arrest is contemplated

following the interview, [are advised] of a right to free counsel if

they are unable to pay, and the availability of such counsel from the

Judge. So phrased, this warning does not indicate that the agent will

secure counsel.  Rather, the statement may well be interpreted by the

suspect to mean that the burden is placed upon himself, and that he may

have counsel appointed only when brought before the judge or at trial --

but not at custodial interrogation.  As I view the FBI practice, it is

not as broad as the one laid down today by the Court.



4. In my view, there is "no significant support" in our cases for the

holding of the Court today that the Fifth Amendment privilege, in

effect, forbids custodial interrogation.  For a discussion of this

point, see the dissenting opinion of my Brother WHITE, post HARLAN, J.,

dissenting (Footnotes)



1. My discussion in this opinion is directed to the main questions

decided by the Court and necessary to its decision; in ignoring some of

the collateral points, I do not mean to imply agreement.



2. The case was Bram v. United States, 168 U.S. 532 (quoted ante p.

461).  Its historical premises were afterwards disproved by Wigmore, who

concluded "that no assertions could be more unfounded."  3 Wigmore,

Evidence  823, at 250, n. 5 (3d ed.1940).  The Court in United States v.

Carignan, 342 U.S. 36, 41, declined to choose between Bram and Wigmore,

and Stein v. New York, 346 U.S. 156, 191, n. 35, cast further doubt on

Bram.  There are, however, several Court opinions which assume in dicta

the relevance of the Fifth Amendment privilege to confessions.  Burdeau

v. McDowell, 256 U.S. 465, 475; see Shotwell Mfg. Co. v. United States,

371 U.S. 341, 347.  On Bram and the federal confession cases generally,

see Developments in the Law -- Confessions, 79 Harv.L.Rev. 935, 959-961

(1966).



3. Comment, 31 U.Chi.L.Rev. 313 & n. 1 (1964), states that, by the 1963

Term, 33 state coerced confession cases had been decided by this Court,

apart from per curiams.  Spano v. New York, 360 U.S. 315, 321, n. 2,

collects 28 cases.



4. Bator & Vorenberg, Arrest, Detention, Interrogation and the Right to

Counsel, 66 Col.L.Rev. 62, 73 (1966): In fact, the concept of

involuntariness seems to be used by the courts as a shorthand to refer

to practices which are repellent to civilized standards of decency or

which, under the circumstances, are thought to apply a degree of

pressure to an individual which unfairly impairs his capacity to make a

rational choice. See Herman, The Supreme Court and Restrictions on

Police Interrogation, 25 Ohio St.L.J. 449, 452-458 (1964); Developments,

supra, n. 2, at 964-984.



5. See the cases synopsized in Herman, supra, n. 4, at 456, nn. 36-39. 

One not too distant example is Stroble v. California, 343 U.S. 181, in

which the suspect was kicked and threatened after his arrest, questioned

a little later for two hours, and isolated from a lawyer trying to see

him; the resulting confession was held admissible.



6. Among the examples given in 8 Wigmore, Evidence  2266, at 401

(McNaughton rev.1961), are these:  the privilege applies to any witness,

civil or criminal, but the confession rule protects only criminal

defendants; the privilege deals only with compulsion, while the

confession rule may exclude statements obtained by trick or promise, and

where the privilege has been nullified -- as by the English Bankruptcy

Act -- the confession rule may still operate.



7. Additionally, there are precedents and even historical arguments that

can be arrayed in favor of bringing extra-legal questioning within the

privilege.  See generally Maguire, Evidence of Guilt  2.03, at 15-16

(1959).



8. This, of course, is implicit in the Court's introductory announcement

that "[o]ur decision in Malloy v. Hogan, 378 U.S. 1 (1964) [extending

the Fifth Amendment privilege to the States] necessitates an examination

of the scope of the privilege in state cases as well."  Ante,   It is

also inconsistent with Malloy itself, in which extension of the Fifth

Amendment to the States rested in part on the view that the Due Process

Clause restriction on state confessions has, in recent years, been "the

same standard" as that imposed in federal prosecutions assertedly by the

Fifth Amendment.  378 U.S. at 7.



9. I lay aside Escobedo itself; it contains no reasoning or even general

conclusions addressed to the Fifth Amendment, and indeed its citation in

this regard seems surprising in view of Escobedo's primary reliance on

the Sixth Amendment.



10. Since the Court conspicuously does not assert that the Sixth

Amendment itself warrants its new police interrogation rules, there is

no reason now to draw out the extremely powerful historical and

precedential evidence that the Amendment will bear no such meaning.  See

generally Friendly, The Bill of Rights as a Code of Criminal Procedure,

53 Calif.L.Rev. 9'9, 943-948 (1965).



11. See supra, n. 4, and text.  Of course, the use of terms like

voluntariness involves questions of law and terminology quite as much as

questions of fact.  See Collins v. Beto, 348 F.2d 823, 832 (concurring

opinion); Bator & Vorenberg, supra, n. 4, at 72-73.



12. The Court's vision of a lawyer "mitigat[ing] the dangers of

untrustworthiness" (ante, p. 470) by witnessing coercion and assisting

accuracy in the confession is largely a fancy; for if counsel arrives,

there is rarely going to be a police station confession.  Watt v.

Indiana, 338 U.S. 49, 59 (separate opinion of Jackson, J.):  "[A]ny

lawyer worth his salt will tell the suspect in no uncertain terms to

make no statement to police under any circumstances."  See Enker &

Elsen, Counsel for the Suspect, 49 Minn.L.Rev. 47, 66-68 (1964).



13. This need is, of course, what makes so misleading the Court's

comparison of a probate judge readily setting aside as involuntary the

will of an old lady badgered and beleaguered by the new heirs.  Ante,

pp.  n. 26.  With wills, there is no public interest save in a totally

free choice; with confessions, the solution of crime is a countervailing

gain however the balance is resolved.



14. See, e.g., the voluminous citations to congressional committee

testimony and other sources collected in Culombe v. Connecticut, 367

U.S. 568, 578-579 (Frankfurter, J., announcing the Court's judgment and

an opinion).



15. In Westover, a seasoned criminal was practically given the Court's

full complement of warnings, and did not heed them.  The Stewart case,

on the other hand, involves long detention and successive questioning. 

In Vignera, the facts are complicated, and the record somewhat

incomplete.



16. [J]ustice, though due to the accused, is due to the accuser also. 

The concept of fairness must not be strained till it is narrowed to a

filament.  We are to keep the balance true. Snyder v. Massachusetts, 291

U.S. 97, 122 (Cardozo, J.).



17. A narrow reading is given in:  United States v. Robinson, 354 F.2d

109 (C.A.2d Cir.); Davis v. North Carolina, 339 F.2d 770 (C.A.4th Cir.);

Edwards v. Holman, 342 F.2d 679 (C.A. 5th Cir.); United States ex rel.

Townsend v. Ogilvie, 334 F.2d 837 (C.A. 7th Cir.); People v. Hartgraves,

31 Ill.2d 375, 202 N.E.2d 33; State v. Fox, ___ Iowa ___, 131 N.W.2d

684; Rowe v. Commonwealth, 394 S.W.2d 751 (Ky.); Parker v. Warden, 236

Md. 236, 203 A.2d 418; State v. Howard, 383 S.W.2d 701 (Mo.); Bean v.

State, ___ Nev. ___, 398 P.2d 251; State v. Hodgson, 44 N.J. 151, 207

A.2d 542; People v. Gunner, 15 N.Y.2d 226, 205 N.E.2d 852; Commonwealth

ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288; Browne v. State, 24

Wis.2d 491, 131 N.W.2d 169.



An ample reading is given in:  United States ex rel. Russo v. New

Jersey, 351 F.2d 429 (C.A.3d Cir.); Wright v. Dickson, 336 F.2d 878

(C.A. 9th Cir.); People v. Dorado, 62 Cal.2d 338, 398 P.2d 361; State v.

Dufour, ___ R.I. ___, 206 A.2d 82; State v. Neely, 239 Ore. 487, 395

P.2d 557, modified, 398 P.2d 482.



The cases in both categories are those readily available; there are

certainly many others.



18. For instance, compare the requirements of the catalytic case of

People v. Dorado, 62 Cal.2d 338, 398 P.2d 361, with those laid down

today.  See also Traynor, The Devils of Due Process in Criminal

Detection, Detention, and Trial, 33 U.Chi.L.Rev. 657, 670.



19. The Court's obiter dictum notwithstanding, ante p. 486, there is

some basis for believing that the staple of FBI criminal work differs

importantly from much crime within the ken of local police.  The skill

and resources of the FBI may also be unusual.



20. For citations and discussion covering each of these points, see

Developments, supra, n. 2, at 1091-1097, and Enker & Elsen, supra, n.

12, at 80 & n. 94.



21. On comment, see Hardin, Other Answers:  Search and Seizure, Coerced

Confession, and Criminal Trial in Scotland, 113 U.Pa.L.Rev. 165, 181 and

nn. 96-97 (1964).  Other examples are less stringent search and seizure

rules and no automatic exclusion for violation of them, id. at 167-169;

guilt based on majority jury verdicts, id. at 185, and pretrial

discovery of evidence on both sides, id. at 175.



22. Of particular relevance is the ALI's drafting of a Model Code of

Pre-Arraignment Procedure, now in its first tentative draft.  While the

ABA and National Commission studies have wider scope, the former is

lending its advice to the ALI project and the executive director of the

latter is one of the reporters for the Model Code.



23. See brief for the United States in Westover, p. 45.  The N.Y. Times,

June 3, 1966, p. 41 (late city ed.) reported that the Ford Foundation

has awarded $1,100,000 for a five-year study of arrests and confession

in New York.



24. The New York Assembly recently passed a bill to require certain

warnings before an admissible confession is taken, though the rules are

less strict than are the Court's.  N.Y. Times, May 24, 1966, p. 35 (late

city ed.).



25. The Court waited 12 years after Wolf v. Colorado, 338 U.S. 25,

declared privacy against improper state intrusions to be

constitutionally safeguarded before it concluded, in Mapp v. Ohio, 367

U.S. 643, that adequate state remedies had not been provided to protect

this interest, so the exclusionary rule was necessary. WHITE, J.,

dissenting (Footnotes)



1. Of course, the Court does not deny that it is departing from prior

precedent; it expressly overrules Crooker and Cicenia, ante at 479, n.

48, and it acknowledges that, in the instant "cases, we might not find

the defendants' statements to have been involuntary in traditional

terms," ante at 457.



2. In fact, the type of sustained interrogation described by the Court

appears to be the exception, rather than the rule.  A survey of 399

cases in one city found that, in almost half of the cases, the

interrogation lasted less than 30 minutes.  Barrett, Police Practices

and the Law -- From Arrest to Release or Charge, 50 Calif.L.Rev. 11,

41-45 (1962).  Questioning tends to be confused and sporadic, and is

usually concentrated on confrontations with witnesses or new items of

evidence as these are obtained by officers conducting the investigation.

 See generally LaFave, Arrest:  The Decision to Take a Suspect into

Custody 386 (1965); ALI, A Model Code of Pre-Arraignment Procedure,

Commentary  5.01, at 170, n. 4 (Tent.Draft No. 1, 1966).



3. By contrast, the Court indicates that, in applying this new rule, it

"will not pause to inquire in individual cases whether the defendant was

aware of his rights without a warning being given."  Ante at 468.  The

reason given is that assessment of the knowledge of the defendant based

on information as to age, education, intelligence, or prior contact with

authorities can never be more than speculation, while a warning is a

clear-cut fact.  But the officers' claim that they gave the requisite

warnings may be disputed, and facts respecting the defendant's prior

experience may be undisputed, and be of such a nature as to virtually

preclude any doubt that the defendant knew of his rights.  See United

States v. Bolden, 355 F.2d 453 (C.A. 7th Cir.1965), petition for cert.

pending, No. 1146, O.T. 1965 (Secret Service agent); People v. Du Bont,

235 Cal.App.2d 844, 45 Cal.Rptr. 717, pet. for cert. pending No. 1053,

Misc., O.T. 1965 (former police officer).



4. Precise statistics on the extent of recidivism are unavailable, in

part because not all crimes are solved and in part because criminal

records of convictions in different jurisdictions are not brought

together by a central data collection agency.  Beginning in 1963,

however, the Federal Bureau of Investigation began collating data on

"Careers in Crime," which it publishes in its Uniform Crime Reports.  Of

92,869 offenders processed in 1963 and 1964, 76% had a prior arrest

record on some charge.  Over a period of 10 years, the group had

accumulated 434,000 charges.  FBI, Uniform Crime Reports -- 1964, 27-28.

 In 1963 and 1964, between 23% and 25% of all offenders sentenced in 88

federal district courts (excluding the District Court for the District

of Columbia) whose criminal records were reported had previously been

sentenced to a term of imprisonment of 13 months or more.  Approximately

an additional 40% had a prior record less than prison (juvenile record,

probation record, etc.).  Administrative Office of the United States

Courts, Federal Offenders in the United States District Courts:  1964,

x, 36 (hereinafter cited as Federal Offenders:  1964); Administrative

Office of the United States Courts, Federal Offenders in the United

States District Courts:  1963, 25-27 (hereinafter cited as Federal

Offenders:  1963).  During the same two years in the District Court for

the District of Columbia, between 28% and 35% of those sentenced had

prior prison records, and from 37% to 40% had a prior record less than

prison.  Federal Offenders:  1964, xii, 64, 66; Administrative Office of

the United States Courts, Federal Offenders in the United States

District Court for the District of Columbia:  1963, 8, 10 (hereinafter

cited as District of Columbia Offenders:  1963).



A similar picture is obtained if one looks at the subsequent records of

those released from confinement.  In 1964, 12.3% of persons on federal

probation had their probation revoked because of the commission of major

violations (defined as one in which the probationer has been committed

to imprisonment for a period of 90 days or more, been placed on

probation for over one year on a new offense, or has absconded with

felony charges outstanding).  Twenty-three and two-tenths percent of

parolees and 16.9% of those who had been mandatorily released after

service of a portion of their sentence likewise committed major

violations.  Reports of the Proceedings of the Judicial Conference of

the United States and Annual Report of the Director of the

Administrative Office of the United States Courts:  1965, 138.  See also

Mandel et al., Recidivism Studied and Defined, 56 J.Crim.L., C. & P. S.

59 (1965) (within five years of release, 62.33% of sample had committed

offenses placing them in recidivist category).



5. Eighty-eight federal district courts (excluding the District Court

for the District of Columbia) disposed of the cases of 33,381 criminal

defendants in 1964.  Only 12.5% of those cases were actually tried.  Of

the remaining cases, 89.9% were terminated by convictions upon pleas of

guilty and 10.1% were dismissed.  Stated differently, approximately 90%

of all convictions resulted from guilty pleas.  Federal Offenders: 

1964, supra, note 4, 3-6.  In the District Court for the District of

Columbia, a higher percentage, 27%, went to trial, and the defendant

pleaded guilty in approximately 78% of the cases terminated prior to

trial.  Id. at 58-59.  No reliable statistics are available concerning

the percentage of cases in which guilty pleas are induced because of the

existence of a confession or of physical evidence unearthed as a result

of a confession.  Undoubtedly the number of such cases is substantial.



Perhaps of equal significance is the number of instances of known crimes

which are not solved.  In 1964, only 388,946, or 23.9%, of 1,626,574

serious known offenses were cleared.  The clearance rate ranged from

89.8% for homicides to 18.7% for larceny.  FBI, Uniform Crime Reports --

1964, 20-22, 101.  Those who would replace interrogation as an

investigatorial tool by modern scientific investigation techniques

significantly overestimate the effectiveness of present procedures, even

when interrogation is included.

