HAYNES v. WASHINGTON

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Argument of Lawrence Speiser

Chief Justice Earl Warren: Number 147, Raymond L. Haynes, Petitioner, versus Washington.

Mr. Speiser.

Mr. Lawrence Speiser: Mr. Chief Justice, may it please the Court.

This case involves the issue as to whether the petitioner has been deprived of due process of law under the Fourteenth Amendment by the introduction, into his trial on a charge of robbery, of a confession which was obtained from him under circumstances, including being booked for investigation, being held incommunicado, being refused permission to call his wife or an attorney under a regular practice and procedure of the Spokane Police Department in violation of a state law in which a confession was signed by him some 16 hours after his arrest and in which he was not informed of his constitutional rights until he was brought before a magistrate some 18 and a half hours after arrest.

There is a second issue in the case which has been raised in the filing of a supplemental brief as to whether the confessions obtained from him after an arrest without probable cause should be excluded on the basis of the decisions of Mapp versus Ohio, holding the exclusionary rule applicable to the states and Wong Sun versus United States, holding that verbal evidence which has been obtained after an arrest without probable cause fall within the scope of the exclusionary principle.

The facts in the case are these.

On December 19, 1957, a robbery occurred in the City of Spokane, two men were involved.

The police were called.

Within 10 minutes, one of the men was captured.

Fifteen minutes later, a prowl car, some five blocks from the scene of the robbery which had received what was described as an incomplete description of the remaining robber, spotted the petitioner in this case.

As the prowl car approached, he started up the yard of a house.

The police shown a spotlight on him, he is called back to the car, they question him for a few moments.

Apparently satisfied with his explanation and the discussion, he was permitted to leave.

He walked back up the yard of the house to the door.

He fumbled with a key at the storm door.

In the meanwhile, the police sat in the prowl car, did not move, and watched him.

He then walked back toward the police car and it's a little unclear from the record exactly what transpired first.

However, the office -- the arresting officer testified that he walked back to the car, he's placed under arrest, and apparently, at the same time or near the same time he said, “You got me, let's go.”

After being placed in the police car, the officer testified, this Officer Usher, that he admitted the robbery that he was crying, that he was taken to the scene of the robbery, that he identified it and then in response to a call from headquarters he was taken back to headquarters.

At headquarters, he was booked for investigation.

He was searched.

He had not been frisked or handcuffed during the ride back to the police station.

On him was found --

Justice Potter Stewart: Did the evidence show whose house it was?

Mr. Lawrence Speiser: No, there's no evidence in the record on that--

Justice Potter Stewart: That was his house or a relative's house or a stranger's house?

Mr. Lawrence Speiser: There is no evidence in the record on that question.

It maybe inferred I believe though that it is not the petitioner's house because in the record, he gives his address and his address apparently is not the same as this house.

There was no attention called to that point on the record.

That -- he arrived back at the police station approximately 10 p.m., which was about a half hour after being arrested, he was interrogated in an interrogation room by Lieutenant Wakeley of the Spokane Police Department.

During the interrogation, the petitioner testified that he asked several times for permission to call his wife and to call an attorney.

Lieutenant Wakeley testified that he could not remember whether he did or not, he might have.

Apparently, there was no warning of constitutional rights, the right to remain silent nor the right to contact counsel.

Lieutenant Wakeley testified that being held on what was called small book or held for investigation meant that he was held incommunicado.

He could not call out nor could he receive incoming calls nor visitors.

The only discussion as to whether an attorney could get in to see him was that if an attorney had been contacted to by the family that would be another matter.

It's not indicated that an attorney could get in.

However, it was fairly clear from the testimony of both Lieutenant Wakeley and other police officers that the practices to hold him incommunicado without his having permission to call out nor anyone having permission to come in to see him or to contact him.

Justice John M. Harlan: [Inaudible] that he asked for a --

Mr. Lawrence Speiser: He -- he testified that he asked for permission to call his wife or an attorney during the evening he was being interrogated by Lieutenant Wakeley.

Lieutenant Wakeley stated that he could not remember whether he did.

He might have.

Apparently, there was more emphasis in his request for permission to call out to call his wife because subsequently in talking about the interrogation the following morning, he indicated that he had mentally changed his mind about wanting permission to call an attorney directly, but wanted to get his wife -- going to call his wife so that she could contact an attorney.

He raised the question that he didn't want to have two attorneys coming in at the same time that if he got one and his wife got one, he would have the problem of paying two attorneys.

However, he indicated that was a mental thought process that he went through rather than anything that he stated, but there is no flat denial on the part of the -- any of the police that he made such request to call.

Both Lieutenant Wakeley that evening and Officer Cockburn who interrogated the following morning stated in a somewhat similar terms that they could not remember whether he made such request that he might have in one case or that he could have stated by Officer Cockburn.

Justice John M. Harlan: [Inaudible]

Mr. Lawrence Speiser: Yes, it does and it didn't in this case.

There was a lineup at 11 o'clock that evening which was approximately an hour after he got to the police station and he was booked at that point after the lineup that he was -- in which there was -- his name was placed in what was called the small book.

The -- there's nothing to indicate that there was any interrogation after midnight of that evening.

Apparently, he was sent over to the county jail, and the next morning, he was brought back to the police station at 9 o'clock.

Justice Byron R. White: Well, how did he -- didn't he -- when was the first oral questioning?

Mr. Lawrence Speiser: Well --

Justice Byron R. White: You said there was a testimony that you [Inaudible] --

Mr. Lawrence Speiser: Well --

Justice Byron R. White: -- but how about Lieutenant Wakeley?

Mr. Lawrence Speiser: Lieutenant Wakeley testified that he confessed to him orally that he --

Justice Byron R. White: Soon after the interrogation [Inaudible]?

Mr. Lawrence Speiser: Well, the interrogation occupied about an hour so it was sometime during that period of time.

I don't know whether -- I don't believe it's indicated in the record how soon after the interrogation --

Justice Byron R. White: Was there any evidence [Inaudible]?

Mr. Lawrence Speiser: No, there is not.

There's nothing in the record that's going to indicate that he first stated that he wanted to call the wife before confessing.

There's nothing to indicate that -- excuse me, Lieutenant Wakeley testified that after what he described as his conversation with him that he then requested permission to call his wife.

Lieutenant -- but the petitioner in his testimony stated that he asked several times --

Justice Byron R. White: But he doesn't say when it was (Voice Overlap) --

Mr. Lawrence Speiser: He does not --

Justice Byron R. White: [Inaudible]

Mr. Lawrence Speiser: He does not state when it was in the record.

On the following morning, two detectives interrogated the petitioner, Officers Cockburn and Peck.

He was fingerprinted.

Their interrogation occupied from one hour and a half to two hours.

He again asked to call his wife.

Officer Cockburn in his testimony stated, he doesn't remember whether he did, he could have.

Also, he asked to talk to the prosecutor before his -- while his confession was being taken down by a stenographer and this request was refused by Officer Cockburn.

There's no indi -- there's no indication in the confession which was taken down by a stenographer that he was advised of his constitutional rights was nothing in the record that any time indicated that this occurred.

At the conclusion of the confession, he was asked, “Have we made you any threats or promises?”

And he answered “No”.

“Has any police officer made you any promises or threats?”

He stated, “No, except that the Lieutenant promised me that as soon as I was booked that I could call my wife.”

And Detective Cockburn replied, “You are being held for investigation.

You haven't been booked yet.

When you are, you will be able to phone your wife.”

After this confession was taken down by a stenographer, he was taken to the assistant prosecutor's office, Mr. Gray.

There is some ambiguity in the record as to when he signed the confession at Prosecutor Gray's office.

The majority opinion of the Washington Supreme Court stated it was around noon.

However, in the record, there is a notation which hasn't been brought to the Court's attention in any of the briefs which states 1:47 p.m. and initials R.L.H. which I assume refers to Raymond L. Haynes, the name of the petitioner.

In any case, the confession was signed by the petitioner sometime either at noon or one -- at 1:47 p.m.

In the meantime, his wife had called the police department and asked if her husband was in jail. She was told --

Justice William J. Brennan: How many hours had elapsed by noon time Mr. Speiser?

Mr. Lawrence Speiser: It was two and a half hours the night before so it'd be fourteen-and-a-half hours from the date of -- from the time of arrest until they signed a confession, and noon was the time for -- it was 1:47 would be another two hour -- one and three quarter hours.

Justice Potter Stewart: How much sleep did he get to this?

Mr. Lawrence Speiser: There's nothing in the record to indicate how much sleep he had.

There's nothing in the record to indicate that he was subjected to all night interrogation.

Justice Potter Stewart: Or anything similar to that?

Mr. Lawrence Speiser: Or anything similar to that.

Justice Potter Stewart: Now, you said didn't you that at midnight, there's a blank after midnight?

Mr. Lawrence Speiser: There is a blank.

He was taken from the police station to the county jail.

There have been situations where there has been interrogation which is going on at the county jail by police officers.

There's nothing in the record to indicate that that occurred in this -- in this case.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Lawrence Speiser: Yes, in the record on -- for Exhibit 6 on page 139, you will see subscribed and sworn to before me this 20th day of December, 1957, Carol D. Gray, Harry H. Cockburn, who is one of the detectives.

Then on the left hand side it says 6 am-pm with no indication as to what that means and RLH, 12/20/57, 1:47 p.m.

And I -- again, I can't tell whether that means that he in fact did sign it at that time and that this is his initials to indicate that but there is -- there is nothing else to indicate the specific time other than the statement in the majority opinion of the Washington State Supreme Court that it was around noon.

Justice John M. Harlan: [Inaudible]

Mr. Lawrence Speiser: Well, in the -- in Exhibit 6 which is the signed confession on page 138 of the record, it states, “Has any police officers made any promises or threats?”

“No except that the Lieutenant promised me that as soon as I was booked, I could call my wife.”

Question: “You're being held for investigation, you haven't been booked yet, when you are, you will be able to phone your wife,” the last sentence of the -- of this signed confession.

Justice William J. Brennan: You say it was introduced in the petitioner's complaint.

Mr. Lawrence Speiser: Yes, it did.

Justice William J. Brennan: [Inaudible]

Mr. Lawrence Speiser: Yes, it did and a motion to strike the confession was made which I'll come to as I get to that point.

Justice Potter Stewart: This -- I want to be sure how much time was involved here.

It was approximately a 14-hour period.

Mr. Lawrence Speiser: If we accept the 12 noon, if we accept the 1:47, it's --

Justice Potter Stewart: Well, then it's a 15 and 47-minute-hour period.

Mr. Lawrence Speiser: Then I -- I would say it's close to 16 hours.

Justice Potter Stewart: Alright, 16, but now, this is not a continuum questioning or interrogation or anything like it.

Mr. Lawrence Speiser: No.

No.

It is not.

At least as far as the record shows, there is -- there apparently was no interrogation after 12 midnight until 9 o'clock the next morning.

There's nothing in the record to indicate it.

Justice Potter Stewart: There's an interrogation after they were first arrested --

Mr. Lawrence Speiser: Yes.

Justice Potter Stewart: -- after he first arrested and then --

Mr. Lawrence Speiser: Then the following morning, there was interrogation of an hour and a half to two hours.

That's right.

Justice Potter Stewart: Are you actually -- it's a fair question, are you asking us to make the -- to make the so-called Mallory rule a constitutional rule, is that it?

Mr. Lawrence Speiser: I think there are some aspects of that in this case, Your Honor.

I don't think you have to go that far though.

Justice Potter Stewart: Actually, you like us to, but I wondered if we don't have to go this far or that far in this case.

Mr. Lawrence Speiser: I don't believe that you do have to go that far in this case.

There are -- for example, the Mallory rule would be applicable in barring a confession even though there were probable cause in an arrest, but there was an unlawful detention by the fact that the person who was not brought before a magistrate without unnecessary delay.

But in this case, I believe that, as I'll get to, that there was no probable cause so that you don't have that specific problem before the Court.

Justice Potter Stewart: That's the subject of your supplemental brief.

Mr. Lawrence Speiser: That's correct.

Justice Potter Stewart: But on your original brief, doesn't it boil down to the -- to that contention that the Mallory rule should be a constitutional rule, a due process rule?

Mr. Lawrence Speiser: Well, no, because under the Mallory rule, confessions are barred if they're obtained during a period of unlawful detention even though it's a completely voluntary confession.

Justice Potter Stewart: Well, I wondered what additionally there was here?

Mr. Lawrence Speiser: Well, but in this case, we have under the traditional test it seems -- and which was argued in the -- in the brief in chief that looking at the totality of the circumstances, you have enough here to show an extraction of the confession by impermissible constitutional means which is an irrelevant consideration under the Mallory rule.

Justice Potter Stewart: Well, I don't -- could you just say in a word or two what in addition there is here --

Mr. Lawrence Speiser: Yes.

Justice Potter Stewart: -- in addition to -- at the top of the contrary.

Mr. Lawrence Speiser: First of all, he was held incommunicado.

Under Mallory rule, it wouldn't matter whether he was held incommunicado.

He could have been in the police station, could've called a thousand people, it wouldn't have mattered.

Justice Potter Stewart: Yes.

Yes.

Mr. Lawrence Speiser: So being held incommunicado, it was in violation of a state law.

Justice Potter Stewart: Well, but the Mallory rule is in violation of a federal rule of criminal procedure.

Mr. Lawrence Speiser: But the state laws may vary but this happens to be a specific state law --

Justice Potter Stewart: Requiring prompt arraignment?

Mr. Lawrence Speiser: No, it's slightly different than a prompt arraignment law.

This was a state -- this is a state law which is in the record which states that it's a misdemeanor for a police officer to refuse permission on the part of any person being held in a jail to communicate with a friend, relative, or an attorney for the purpose of extracting a confession.

Now, the State Supreme Court held that to bar this confession in a sense so that it should not have been presented to the jury to determine voluntariness, there should have been an additional factor found which was that the -- this holding incommunicado, violation of this law induced the confession.

However, that's an additional requirement it seems to me that for the state -- if that is the state law, that is -- it doesn't cover the situation as to whether the police, in fact, were guilty of violating their own state law of misdemeanor.

That's only a question of the introduction of evidence, not the question as to whether they in fact broke a state penal law.

And in addition, the Mallory rule is -- it doesn't consider the question as to whether a person is informed of his constitutional rights.

That's in the District of Columbia since the Mallory case.

The police have stated that they generally, I don't know whether it's universal, do inform an individual prior to the time that the confession is obtained to -- from him but he doesn't have to answer the question.

But this is not required by the Mallory rule.

This is a circumstance that exists in this case and it's looked and I would say, fits in within this total concept of looking at all the facts.

In some of the cases that the Court has considered in coerced confession situations, they've spelled out generally the factors of this kind as being the use of impermissible methods.

And they haven't done it entirely or they haven't done on the basis of McNabb-Mallory which has been an exclusionary rule based on a supervisorial power of the Court.

I agree, it approaches close to McNabb-Mallory but I think that the limits in the -- and the scope of it will be different under particular circumstances.

The wife in this case testified that she called the police, attempted to find out information about her husband, but was told that it was all in the morning papers, to get the papers and read it.

She testified that she came the following day on a Saturday and picked up the car, and testified that she was not permitted to see him until a week after his arrest.

He testified that he was not allowed to call his wife until either five or seven days after the arrest.

After signing the confession, he was brought before a magistrate at 4 o'clock of that afternoon which is some eighteen and a half hours after the arrest where he was first informed of his constitutional rights.

After that, he was brought to the prosecutor's office on several occasions and was asked to sign new statements and he refused to do it in his testimony on the grounds that he had not been permitted to call his wife.

It's I think pertinent to point out that he has a prior criminal record.

This was brought out during the trial when he took the stand and the evidence was given that he had been convicted at prior times of robbery, breaking and entering which was a gross misdemeanor in the State, drunken driving, resisting arrest, and taking a car without permission, and breaking jail.

He was given a sentence not exceeding 20 years after being found guilty by the jury.

Chief Justice Earl Warren: Did he ever sign those later confessions?

Mr. Lawrence Speiser: No, he -- no, he did not.

He signed only this one confession.

Chief Justice Earl Warren: Were they ever introduced or the substance of it introduced in the Court against him?

Mr. Lawrence Speiser: No.

There was the oral testimony of the police officers about his oral confessions and then this one confession, signed confession was introduced over objection of the -- of his defense attorney.

Justice Byron R. White: Well, this is the one that recites 14 or 15-and-a-half hours [Inaudible]?

Mr. Lawrence Speiser: Yes or 16.

That was 1:47.

At the trial, his counsel moved to strike the confession on several grounds, but the pertinent one here was that on -- that on the grounds that Raymond Haynes' rights under the Constitution, would be violated by these introductions with regard to self-incrimination and enforces him to take the witness stand against himself and against his will.

Now, the State Supreme Court over the contention of the State, interpreted this to mean as being an objection that its introduction would violate his rights under the Due Process Clause of the Fourteenth Amendment and the State Supreme Court then decided whether the introduction of this confession into his case did violate his rights under the Due Process Clause of the Fourteenth Amendment.

The Court by five to four majority held that it did not.

And it was this -- the question of introduction of this confession was the thrust of the petition for certiorari to this Court.

Justice William J. Brennan: Now, you've probably already answered it but would you mind telling me, is there any voir dire proceeding before the judge not on the presence of a jury [Inaudible] in the State of Washington that go directly with the jury?

Mr. Lawrence Speiser: I believe there was -- there was argument in the chambers of the judge on the admissibility of this confession and the --

Justice William J. Brennan: Well, just after the evidence bearing on its admissibility is heard by the jury?

Mr. Lawrence Speiser: No, I believe so -- I believe not it was before, it was beforehand.

When it -- excuse me, no.

The evidence I believe was heard before then there was a motion -- an argument in the judges' chambers on its admissibility.

Justice William J. Brennan: But the jury heard the evidence, is that it?

Mr. Lawrence Speiser: Yes, they did.

Now, the argument that was made in the Brief-in-Chief was on the exclusion of this confession on the grounds that it violated the petitioner's rights under the Due Process Clause of the Fourteenth Amendment in denying him fundamental fairness.

Now, this has been expressed in various ways by the Court to whether the confession is involuntary, whether it was obtained as a result of coercion or whether it's a combination of factors, including the extraction of it by impermissible means plus the compulsion that should prevent -- that was -- the Fifth Amendment was designed to prevent.

It is clear that the trustworthiness, the truth of the confession is not the proper issue in determining its admissibility.

It should be pointed out that this confession was obtained under a regular practice and procedure of the Spokane Police Department.

This is not a case of the constable blundering.

This is a case of an established police practice not only in Spokane, but throughout the country.

The uniform crime reports, the last one in 1961 indicated, for example, that there are 136,000 arrests on suspicion or investigation, they used it somewhat synonymously, in which individuals are arrested sufficiently so that the statistics are reported to the Department of Justice and the FBI and are collected.

And that those people have been arrested and are never brought before a magistrate but are released without a charge.

Here in the District of Columbia last year, there was a good deal of attention on this question and there were approximately 6000 arrests for investigation in spite of the fact that we have in McNabb-Mallory rule which is applicable in the District of Columbia, but in the Spokane Police Department, this was an established practice.

They even had a name for it.

It was the small book that if a person wasn't charged with a crime, he was held for investigation.

There was nothing to take him before a magistrate because a magistrate would -- function at that point would be to determine if there was probable cause for an arrest and of course there's no probable cause which could be determined if the person is merely brought before a magistrate having been arrested for investigation, having been booked for investigation.

Justice Potter Stewart: Was that -- those practices which you described aren't quite illustrated by this case, are they?

They knew that the service stations had been held up but as soon as they picked this man up, he said, “You've got me.”

Then he came in and he orally -- then he orally confessed to Lieutenant Wakeley that evening.

Mr. Lawrence Speiser: Well, I --

Justice Potter Stewart: We all know the -- we've all read about the practices which you're describing of the people picked up on open charges so-called are on suspicion and then released without charges.

This is that case and this is --

Mr. Lawrence Speiser: Well, this is -- this is part of that case, Mr. Justice Stewart, because here is a situation where they picked someone up and I disagree that they had probable cause to pick him up.

Justice Potter Stewart: They did know a service station has been robbed.

Mr. Lawrence Speiser: They knew a service station has been robbed.

Justice Potter Stewart: That night before (Voice Overlap) --

Mr. Lawrence Speiser: And they knew that a felony had occurred and this is true and I would say in almost all of the cases where people are arrested on suspicion but no crime has been committed and they pick people up in order to extract from them confessions which is going to be the basis for a conviction.

Justice Arthur J. Goldberg: What page are you on now?

Is that on [Inaudible]?

Mr. Lawrence Speiser: Well, I --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Lawrence Speiser: That does make a difference if that is the proper construction of the evidence.

However, there have been cases that have been decided which hold that mere submissiveness is not a surrender or does not waive the rights to object to an arrest without probable cause.

In the District of Columbia, there was a Court of Appeals decision in which the Court's, Kelley versus United States, 298 F.2d 310, the Court of Appeals said, “It is sufficient if the person arrested understands that he is in the power of the one arresting and submits in consequence.”

And in the Ray case in this Court, the Court stated, “It is the right of one placed under arrest to submit to custody.

Probable cause cannot be found from submissiveness.”

Now, here, I agree that there is a problem here as to what actually happened at the time of arrest.

I believe a reasonable construction though is this.

Here, is a situation of a man who had been stopped on a street corner.

As far as the police were concerned at that point they had no probable cause to hold that man for the crime -- for whose solution that they were working.

He didn't quite fit the subscription -- the description.

That the description was vague and uncertain and they let him go.

But they were suspicious, not probable cause but suspicious.

So they sat there and watched.

They waited.

They watched and go up to the house and then he fumbled with the key and he came back down.

Now I believe a reasonable construction is he never really was free to go at that point, that they sat there and watched, and he was like -- he was on the end of a rubber band.

They watched him go up to the door and they pulled him back in.

He could not have walked by the police car, I believe that -- and Officer Usher testified that he got out of the car and arrested him.

Now, I agree there is some ambiguity here as to whether he got out of the car, when the man was walking back, and therefore went to meet him.

But I believe that the man was not free to walk down from the house and then walk away that the police are waiting for him and that his statement, “You got me, let's go”, is merely an acknowledgment, “You've got me.

I am under -- I'm under arrest.”

And his testimony says he saw they were waiting out there and decided -- he gave up the ghost and he -- he walked back down.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Lawrence Speiser: This is our position but I am not relying on that alone.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Lawrence Speiser: But -- yes.

Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Lawrence Speiser: I think on that point, I probably have to rely on the fatality concept and say this would be one major factor.

There have been statements by the Court which -- in which it has said that anyone of these factors would be sufficient but this has been a dictum, there hasn't yet in a case it was written.

Justice Potter Stewart: Well, on your first point, you have to rely on this Court's overruling at least two authoritative precedents.

Mr. Lawrence Speiser: [Inaudible] to Chenny, I quite agree.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Lawrence Speiser: Well, I regard that to be a critical element -- I -- but I would also go to the extent of saying that I believe that a confession obtained from someone who is held incommunicado which I believe would be a shorthand way of describing what you've asked me, should be excluded under the Fourteenth Amendment's Due Process Clause on that factor alone.

Justice Byron R. White: And then -- and why is this point at [Inaudible] on whether there was a probable cause [Inaudible]?

Mr. Lawrence Speiser: Oh, the reason that point is here is that on January 17, I believe it was, this Court decided Wong Sun versus United States holding that confessions that are obtained after an arrest without probable cause are excludable under the exclusionary principle as applied to the Federal Government which is --

Justice Byron R. White: Wong Sun didn't say this may [Inaudible]

Mr. Lawrence Speiser: No, but there -- you have -- this issue has come up in other ways.

It's principally come up since Mapp versus Ohio where the issue has come up as to what has happened to defendants who have been tried and have not made a motion to strike, evidence obtained as a result of an unreasonable search and seizure.

And the last expression that I've seen on this was a --

Justice Byron R. White: [Inaudible] that this is -- it might be helpful [Inaudible] and here you are talking about inadequate state grounds or the States not having [Inaudible] specific matter (Voice Overlap).

Mr. Lawrence Speiser: What -- Mr. Justice White, if --

Justice Byron R. White: Is that a direct appeal?

Mr. Lawrence Speiser: This is a direct appeal, but in the orderly administration of justice, if what you're suggesting is that he should now -- that you should then uphold the conviction, send it back down then to file a petition for writ of habeas corpus to raise that ground fair, it seems to me is a needless waste of time in the case where the record clearly indicates all --

Justice Byron R. White: [Inaudible] states the rule here admittedly that anything raised below cannot be raised [Inaudible]

Mr. Lawrence Speiser: Well --

Justice Byron R. White: [Inaudible] having considered this, this point of the probable cause to arrest.

Mr. Lawrence Speiser: They might have -- they might have considered it, but I think that it's unrealistic to say that the law has not changed since the Supreme Court of Washington has looked at the case.

In a Fourth Circuit decision last month, Hall versus Warden before, there was a -- this question came up.

Shouldn't he -- shouldn't the individual have made a motion to exclude illegally obtained -- evidence obtained by unreasonable search and seizure in a trial -- a state court trial in Maryland, the case was taken on up to this Court then he filed habeas corpus.

Chief Judge Sobeloff said, “Well, not only it would have been useless for the defense attorney to have made such a motion on such a ground considering the fact that Wolff versus [Inaudible] --

Justice Byron R. White: That's a federal court system, that's in the federal court system and if this case was in a federal court, it might be something else again but here, it comes a -- this comes from [Inaudible]

Mr. Lawrence Speiser: Well, there have been cases where this Court has taken up issues that were -- that were existing in the record even though motions had not been made specifically on those issues in the court below.

There was a motion which was interpreted by the Court, by the Washington State Supreme Court that he contended the admission of his confession into his trial, denied him due process under the Fourteenth Amendment.

Now, there are some members of the Court who feel that there isn't any incorporation of Fourth, Fifth, Sixth Amendments into the Fourteenth Amendment that these are facets of due process.

And that the major contention is that due process under the Fourteenth Amendment is the criteria to be determined.

Now, it's certainly preferable, I quite agree that when there is -- when you're coming up to the Supreme Court that you should specify with -- as much particularity as possible in what way something violates the Due Process Clause in the Fourteenth Amendment.

But the federal constitutional ground was raised and there have been cases before this Court in which the federal constitutional grounds were not raised and yet this Court has considered them in their decisions.

There were some questions for example in Mapp versus Ohio whether the federal issue was properly raised.

In Eaton versus Price, there was some question that was upheld by an equally divided court.

Terminiello versus Chicago, there was some question about that as to whether a question was properly raised, but here there hasn't been a change in the law made by Wong Sun and I think that that is a sufficient reason for this Court to consider it on the record.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of George A. Kain

Chief Justice Earl Warren: Raymond L. Haynes, Petitioner, versus Washington.

Mr. Kain.

Mr. George A. Kain: Mr. Chief Justice, if the Court please.

The petitioner in his opening argument related to the facts, surrendering original detention of the petitioner, Raymond Haynes.

I would like to cover some of the facts that occurred after this original surrendering detention.

After Mr. Haynes had been taken into the police car and transported to police headquarters --

Justice Potter Stewart: What time did that happen?

What time of the day?

Mr. George A. Kain: He was arrested at 9:25.

He reached the police headquarters at about 10 p.m.

That's indicated at the record -- in the record on page 55.

He was there questioned by Lieutenant Wakeley for a period of one-half hour and one-half hour only.

That also appears at page 55 of the record.

At that time, he confessed in detail to the robbery of this service station in conjunction with the help of his brother.

When Lieutenant Wakeley testified, he was not asked the question: Did Raymond Haynes asked you if he could call a lawyer or asked you to call a lawyer for him.

Lieutenant Wakeley was never asked this question.The questions in this regard were asked at page 56 of the record.

After the petitioner orally confessed to Lieutenant Wakeley, the lieutenant testified that he may have asked to call his wife, and the lieutenant told to petitioner Haynes that his wife would be called.

The petitioner in his testimony did not testify that he had ever asked Lieutenant Wakeley to call a lawyer.

The lieutenant testified at the trial and he stated in detail what Mr. Raymond Haynes had told him with respect to his oral confession.

No objection of any kind was offered by the defense to the lieutenant's narration of this oral confession.

The lieutenant finished with the petitioner, Raymond Haynes.

In other words, he finished talking to him at 10:30 p.m. on the evening of his arrest.

That's found in the record at page 55.

The petitioner was placed in a lineup for about 15 or 20 minutes according to his own account.

That appears at page 98 of the record.

He was then taken to the city jail, not the county jail.

The city jail is in the same building with the detective headquarters.

This appears in the record at page 98.

The petitioner himself indicates that he was taken to the city jail.

The petitioner himself testified that nothing else was done that night.

That's found at page 98 of the record.

This puts aside any question as to whether or not there was any nighttime questioning.

Justice William J. Brennan: What page is that?

Mr. George A. Kain: Page 98 of the record.

The petitioner testified that nothing else was done that night.

The time as near as we can determine from the record that he was placed in the city jail was about 11 p.m. to 12 midnight.

There's no real way of telling what time it was.

There's no indication of any deprivation of adequate food or adequate sleep.

Now, the petitioner testified that Detective Pike who worked at 4 p.m. to midnight shift on this evening, made promises to him, and that he asked Detective Pike for an attorney.

The record shows, however, that Detective Pike never talked to the petitioner that he was in the same room with him; that he dealt with the petitioner's brother Keith Haynes but that he had no dealings with Raymond Haynes other than to place him in the lineup.

Justice Hugo L. Black: What did he testify?

Mr. George A. Kain: The detective, Your Honor?

Justice Hugo L. Black: Yes.

Mr. George A. Kain: Detective Pike testified that he had never talk with the petitioner.

That's found at page 51 of the record.

This is in complete contradiction to Raymond Haynes' testimony that Pike had promised him communication if he would confess and that Pike had told him that -- or that -- excuse me, that he had asked Detective Pike if he could call an attorney.

Justice Arthur J. Goldberg: (Inaudible)

Mr. George A. Kain: Your Honor, under the practice that existed in Spokane of 1857, there was a police department rule that held if a man is detained on investigation only, that he is not permitted phone calls.

There is a --

Justice Arthur J. Goldberg: (Inaudible) disregard what will happen to (Inaudible) the record is clear, was that -- he was not given a phone call to his lawyer or to his wife.

Mr. George A. Kain: Only two people testified in this regard, Your Honor, one was the lieutenant who testified that no phone calls were permissible.

Lieutenant Cockburn testified that he did not know whether a man would be permitted to call an attorney.

Justice Arthur J. Goldberg: Well, is that in the record as (Inaudible)

Mr. George A. Kain: Yes, nothing was said, Your Honor, with respect to the delivering of messages or anything of that nature.

And in this case, of course, the lieutenant told the petitioner that he would inform his wife that he was being held.

I can contend that this is a means of communication, both of these.

Justice Arthur J. Goldberg: (Inaudible)

Mr. George A. Kain: That's correct, Your Honor.

The -- the next morning, the morning after the petitioner's arrest at 9 a.m., the petitioner was fingerprinted.

At 9:30 a.m., Detectives Cockburn and -- not Detective Pike but Detectives Cockburn and Peck first talked to the petitioner.

They interrogated him for one and one-half to two hours according to their version indicating they started at 9:30.

This is found in the record at page 67.

Actually, they interrogated Petitioner Haynes for one and one-half hours because a stenographer testified that she completed the dictation of the written confession, Exhibit 6, at 11 a.m., one and one-half hours after the two detectives first spoke with Petitioner Haynes.

During this one and one-half hour period, the Petitioner Haynes made an oral confession to Detectives Peck and Cockburn.

The oral confession was a detailed one.

Detective Cockburn testified in detail at the trial as to the contents of this oral confession and there was no objection of any kind to his testimony.

According to the petitioner's version, he was questioned one hour or longer by these two detectives; that's found at page 99 of the record.

The petitioner in this written confession made no request to call --

Chief Justice Earl Warren: Was there any -- excuse me for interrupting you.

But the -- was there anything in the record as to whether during that conversation that you just related, he asked to see either his wife or an attorney or to communicate with them?

Mr. George A. Kain: Yes, Your Honor, there is.

The petitioner testified that he asked these two detectives for permission to call his wife, not an attorney, but his intention was to call his wife.

He testified that they promised him this telephone call if he would confess.

I contend that the record is conflicting because of his own later statements and because of statements of Detective Cockburn who testified.

Justice Hugo L. Black: Because what?

Mr. George A. Kain: Because of the petitioner's own later statements, Your Honor, and because of the testimony of the Detective Cockburn who testified.

Chief Justice Earl Warren: What did he say?

Mr. George A. Kain: I might first state, Your Honor, that the petitioner in his confession made no request for an attorney, nor did he request --

Chief Justice Earl Warren: You mean the confession is testified too by the officers.

Mr. George A. Kain: In the written confession, Your Honor, made no request.

He did request to call the prose -- to see the prosecuting attorney.

He made no other request to that of any nature.

As I indicated, he attributed promises and denials of communication to Detectives Peck and Cockburn.

However, when he was asked a few moments later, the determination of this written confession, he was asked this question: “Did we --” meaning Detectives Peck and Cockburn, “-- make any promises or threats to you?”

And he replied, “No.”

Now, this was in direct and absolute conflict with his testimony at the trial.

He was then asked --

Justice Hugo L. Black: Pardon me but, I thought at the end of the written confession, the questions and answers, there was a statement by him that he had to -- they had promised that they would call his wife.

Mr. George A. Kain: Yes, Your Honor, I'm coming to that --

Justice Hugo L. Black: Yes.

Mr. George A. Kain: -- just a moment.

Justice Hugo L. Black: Well, that doesn't -- I just didn't quite understand it, how you reconcile with that?

Mr. George A. Kain: Well, Detectives Peck and Cockburn said to him, “Did we make any threats or promises?”

The petitioner replied, “No.”

The detectives then asked, “Has any police officer made you any threats or promises?”

And the petitioner, in response to that question, even though he did in his testimony, he attributed promises to various officers, in response to that question, he said only one thing, “No, except the lieutenant promised me that when I was booked and not when I confessed, that the lieutenant promised me when I was booked, I could call my wife.”

Now --

Chief Justice Earl Warren: Well, the officers have already testified that he wouldn't be booked until he did make a statement.

Mr. George A. Kain: No, that is not correct, Your Honor.

They never testified to that.

There's -- there can --

Chief Justice Earl Warren: What did they testify to in that regard?

Mr. George A. Kain: They testified, Your Honor, that in this only that he could not call until he had been booked.

The officers never admitted and it is our contention that it does not occur that he was ever told that he could call his wife only when he had confessed or cooperated.

That was contended but that is not our position and no --

Chief Justice Earl Warren: Was that categorically denied by the officers?

Mr. George A. Kain: The officer who testified Detective Cockburn was asked, I believe, first of all, whether or not, the Petitioner Haynes had asked to call his wife and I believe Detective Cockburn indicated that he could recall no request of this nature.

He did not category -- categorically and unconditionally deny this.

He was asked whether or not, he promised the Petitioner Haynes the right to call if he confessed or cooperated, I believe.

He did not categorically deny this but he did say, “I don't recall”, or “I don't remember”, or “I don't recall any such request.”

Now, that doesn't mean, Your Honor, that a request was made.

It means that in this officer's recollection, he recalled no such request by the petitioner.

And my contention is this: the petitioner himself said there were no promises in his written confession which he signed.

Then two or three hours after he dictated this confession, he was asked to read this confession over and make corrections if there were any mistakes.

He read this confession.

He did make corrections, but he did not make any corrections with respect to whether he had been made any promises, indicating at that time that the only promise he had been made since his arrest was the promise that he could call his wife when he had been booked.

And I submit that this promise call for nothing from this petitioner.

It depended upon his being booked, in other words, that arbitrary point which the officers wrote his name in another section of the log in the jail charging him with a specific crime.

Justice Hugo L. Black: Well, did the -- what did the officers say about this part of the confession where he had said that he has been told that he could call his wife after he confess or whatever it was?

Mr. George A. Kain: Excuse me, Your Honor.

Justice Hugo L. Black: What did the officers -- what did the officers say in response to that, this part of the confession?

Mr. George A. Kain: Your Honor, possibly a -- I didn't -- I didn't make myself clear.

The officer was asked whether he had told the petitioner that he could call his wife when he had confessed.

And the officer said he could not remember, I believe.

Justice Hugo L. Black: But I understood you to say a moment ago that the officer had told him that he could not call his wife until he was booked.

Mr. George A. Kain: Well, Your Honor, my contention is this.

That is correct.

Two officers told him that.

Justice Hugo L. Black: What did that mean?

Mr. George A. Kain: Your Honor, to me when he was told that he could not call until he was booked, that meant that he could not call until the police decided to place his name in another portion of the log in the jail, not that he could not call until he confess.

I don't believe there's any testimony in the record other than from the petitioner himself that says -- that he was told that you can call your wife only when you confess or cooperate.

Justice Hugo L. Black: To that language but didn't you say that he was -- what -- what was meant by booking?

How long was he going to wait?

How long do they hold him of that booking?

Mr. George A. Kain: Well, Your Honor --

Justice Hugo L. Black: For what?

Mr. George A. Kain: In the State of Washington, we don't have what apparently is called the Mallory rule.

A man must be taken before the justice of the peace or a committing magistrate within a reasonable time.

This man was arrested after the Court had closed on a Thursday.

He was given an appearance before a committing magistrate the following afternoon; the day, the first day of Court session in the afternoon.

Justice Hugo L. Black: Well, when they have told him as you said it is, he couldn't call his wife until after he was booked, what was the impression left by that as to what booking meant and when it did take place?

Mr. George A. Kain: Well, --

Justice Hugo L. Black: I'm asking because it's -- and reading it in context of what you have said, occurred to me that it meant that when they got to the question, he need be booked.

Is that about the thing he does?

Mr. George A. Kain: He -- the petitioner himself although I have no way of knowing may have taken this view that when they were through questioning him, he would be booked.

But that does not mean I submit --

Justice Hugo L. Black: Is that your practice?

Mr. George A. Kain: That was the practice, I believe, in --

Justice Hugo L. Black: What's the practice at that time?

Mr. George A. Kain: -- in -- in 1957, that they could hold him for a reasonable time.

Justice Hugo L. Black: The time this happened it was the practice to hold him, not book him until after they interrogated him.

So, they either got a confession or (Inaudible)

Mr. George A. Kain: Well no, Your Honor, the police had a duty to produce the defendant before a justice of the peace or a committing magistrate within a reasonable time.

They couldn't hold him forever, and this man was given an appearance the following day.

Now, as I said, I can't tell what the petitioner had in his mind.

Justice Hugo L. Black: But wouldn't that -- doesn't that -- maybe I'm wrong about it but I -- reading it, I read it, I drew the impression what you meant -- what was meant by that when the officer said that context of what was said in the context to what the petitioner said that the -- was denied by anybody so far -- that's all.

That it meant that after they got through with him, that he confessed, he'd be -- or if they reached the conclusion he would never confess that he might be able to call his wife.

Mr. George A. Kain: Well, I -- Your Honor, I can't assume how long they would hold this man.

He had already confessed twice.

He confessed the first time before he made any request.

Now, how could he possibly be contended that they would hold him until he confess, be -- he had already confessed before he did any request.

Justice Hugo L. Black: Well, they were -- they were holding him and asked him a lot more after he had confess, what we are holding, want to keep on asking questions on that if he'd already confessed twice.

Mr. George A. Kain: Well --

Justice Hugo L. Black: Or make it three times that's famous in history but --

Justice Arthur J. Goldberg: (Inaudible) Mr. Justice Black's question between the (Inaudible) statement is complete and they (Inaudible) his signed confession?

Weren't they after the signed confession?

Mr. George A. Kain: Well, apparently the next morning they were, yes Your Honor.

Justice Arthur J. Goldberg: Yes.

So there is quite a distinction.

This is a very, very substantial distinction when you go to trial.

Mr. George A. Kain: There is a substantial distinction, yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. George A. Kain: Yes, there is Your Honor.

Justice John M. Harlan: Could I ask you a question at this point?

Are the instructions that were given to the jury on pages 16 and 17 of the record, are those as given by the trial court?

Mr. George A. Kain: I believe so, yes Your Honor.

Justice John M. Harlan: I mean these are not request to an -- to instructions.

These are actual instructions.

Mr. George A. Kain: Yes, the requests with the instructions are also in the record.

Justice John M. Harlan: Well, I'm interested in the instructions themselves and I want to make sure that what was -- what I'm reading on page 16 and 17 were the instructions.

Mr. George A. Kain: The trial court's instructions on 16 and 17, those are the trial court's instructions that deal with the voluntariness and with the statute in question.

Justice John M. Harlan: Including the question of the relevancy of the absence of counsel.

Mr. George A. Kain: Yes, Your Honor.

I might make this statement in that regard, Your Honor, the -- excuse me, I'll pass that for the moment.

Justice Hugo L. Black: That charge makes a distinct -- this distinction, as I read it, am I correct in that, that if there had been so many threats, the jury was instructed that they could not use the evidence against him, you're not considering that.

But that if they had offered inducements for him to confess, it could be used as evidence against them.

Mr. George A. Kain: Well, Your Honor in the State of Washington at that time, the jury was the ultimate decider as to the voluntariness of the confession just as they decide guilt or innocence.

Justice Hugo L. Black: I understand that but I was talking about the two, just divided, the charge divided, the jury -- jurisprudence in two parts: (a) If the threat -- if they have found that the threat discretion had been induced by threats of violence or threats, then they couldn't use it against him at all.

Mr. George A. Kain: That's correct, Your Honor.

Justice Hugo L. Black: But if it was induced by promises or hope of reward, then they could use it against him.

Mr. George A. Kain: I believe at that time, Your Honor, they were permitted to consider the statement and the effect that the inducements -- excuse me, may have had with respect to voluntariness, and I believe the next paragraph of that instruction holds that if the jury found that the inducements were sufficient to overcome voluntariness, then they were not to consider that confession.

Justice Hugo L. Black: A different distinction being if -- they could consider their confession even though it's induced by promises, but they could not sustain a conviction unless there was corroborating testimony about it.

Mr. George A. Kain: No, Your Honor, I believe --

Justice Hugo L. Black: On page 1 - Number 11.

Mr. George A. Kain: Yes.

As I read the -- it would be the fourth paragraph --

Justice Hugo L. Black: I've never seen one exactly like it, has so indicated.

Mr. George A. Kain: Well, as I read the fourth paragraph Your Honor, they were permitted.

The jury were permitted to consider the statement and the inducements.

However, setting aside the question of corroboration, the jury was to decide whether or not these inducements were sufficient to overcome the will of the accused.

Justice Hugo L. Black: Were they permitted to do that in case of a threat?

Mr. George A. Kain: In case of a threat, Your Honor, I believe --

Justice Hugo L. Black: Influence of peer, threat accorded on --

Mr. George A. Kain: Fear and produced by threats I believe, made the confession involuntary.

Justice Hugo L. Black: Made it involuntary.

Mr. George A. Kain: In inducements --

Justice Hugo L. Black: But inducement did not.

Mr. George A. Kain: Did not, unless the jury felt in their opinion that the inducement was sufficient to overcome the will of the accused.

Justice Arthur J. Goldberg: (Inaudible) in the inducements not to overcome the will (Inaudible) this cooperation from the will?

(Inaudible) to get you to cooperate?

Mr. George A. Kain: Oh yes, what I -- what I meant to say, Your Honor was that they were to consider inducements if they existed and consider whether or not the inducements were sufficient to overcome the will of the accused.

The question, the prime question before the jury was, is this confession voluntary?

The trial court under the Washington practice at that time had only this authority if the State conceded that the confession was involuntary or the admitted facts show that the confessional was involuntary.

The trial court could withhold it from the jury.Other than that, the jury decided the question of voluntariness just as they decided the question of guilt or innocence.

The petitioner when he testified with regard to the post-confession procedure made this conclusion in answer to a question that he was not allowed to call his -- to call his wife.

He indicated that he had no purpose to call an attorney and merely said to call his wife.

There was no testimony of any request that he actually made to anyone to call other than the request to the lieutenant and the conflicting request made to the conflicting evidence as to request made to other police officers.

There were no jailers produced at the trial to indicate that they had received request and refused them.

The petitioner's wife testified.

She indicated that -- she went to the city jail the day following the petitioner's arrest and she asked merely this question, or she called the city jail by telephone.

She asked this question.

“Is Raymond Haynes in jail?”

And she was told, “Yes, he is.”

She then asked why and she identified herself and said that she was Mrs. Haynes.

The police at that point refused to give her further information.

Of course, this was a telephone call.

They had no way of knowing that this was Mrs. Haynes or merely a curious neighbor.

And they said if you want to know why he's in jail, read it in the papers.

She did not --

Chief Justice Earl Warren: In the newspaper?

Read the newspapers, --

Mr. George A. Kain: Pardon?

Yes.

Chief Justice Earl Warren: -- did they?

Mr. George A. Kain: She did not ask to see Mr. Raymond Haynes.

She did not ask to call him by telephone.

She made no request at that time other than why he is in jail -- why he was in jail.

And this is found at page 131 of the record.

Now, the following day, she again went to the city jail and she asked about Raymond Haynes' automobile.

She talked to Detective Cockburn.

She did not ask to visit him at that time.

Now, bear in mind that this is after the confession, after the booking so that the rule did not prevent her seeing the petitioner.

She could have seen him had she sought too, because there was no so-called small book rule once he had been booked.

She went to the jail personally after he had been booked but she did not ask to see him, she did not ask to telephone him, she did not ask that a message be delivered to him.

She only asked about the family car.

Justice Arthur J. Goldberg: (Inaudible)

Mr. George A. Kain: I believe I'll have to concede that, Your Honor, yes.

Chief Justice Earl Warren: Didn't he claim -- didn't he claim here that for some days after the confession he was denied the opportunity to see either his wife or a lawyer?

Mr. George A. Kain: That's correct, Your Honor.

Chief Justice Earl Warren: Is there -- is there contradiction of that in the evidence?

Mr. George A. Kain: Well, Your Honor in that regard, the petitioner's wife and the petitioner both indicated that they had no communication for --

Chief Justice Earl Warren: Well, I didn't ask that.

I said he -- he claims that he was held incommunicado.

He denied the opportunity to talk to anyone for days after the confession.

Now, was that contradicted?

Mr. George A. Kain: Your Honor, there is nothing in the record, no jailer to say that that was not the fact, no.

The petitioner testified to the conclusion that he was not allowed to call.

The State produced no law enforcement people to show that that statement was false.

Chief Justice Earl Warren: Then I suppose for what it's worth, we'd have to take it as true.

Mr. George A. Kain: Being post-confession procedure for what it's worth --

Chief Justice Earl Warren: Well, what its worth, they say, yes.

Mr. George A. Kain: -- as you say.

Although as I indicated, the rule did not prevent communication once the man had been booked, the rule, it was enforced at that time.

And the petitioner's wife testified that she first saw the petitioner one week after his surrender.

That's on 131.

She didn't testify that she'd ever tried to see him before that.

She merely said she first saw him at that time.

And the rule would not have prevented her seeing him, nor would the rule have prevented the petitioner's calling out.

The rule applied to those held by the police charged with merely investigation for a crime and not booked for a specific crime.

Justice Hugo L. Black: May I ask you regarding the verdict of this crime, what kind of case did you have against the man without the confession?

Mr. George A. Kain: Well, Your Honor I'll have to admit this case without the confessions was rather unusual.

There were two eye witnesses.

One of those has since died.

These eye witnesses --

Justice Hugo L. Black: Did he testify?

Mr. George A. Kain: Yes.

Yes, he did.

And he identified the accused and his brother as being those two persons who had committed a robbery upon himself at his service station.

Of course, these three oral confessions, the confession to the uniformed officers, the confession to Lieutenant Wakeley, and the confession to Detectives Cockburn and Peck were also in evidence.

Justice Hugo L. Black: I say, aside from the confessions, you say you had one witness that identified him to the jury?

Mr. George A. Kain: Yes, Your Honor.

Justice Hugo L. Black: And he since died then what --

Mr. George A. Kain: No, there were -- there were two witnesses that gave -- each gave -- giving a partial identification that one of those two witnesses has since died, yes.

Justice Hugo L. Black: What do you mean by partial evidence then?

Mr. George A. Kain: Well I'm -- I believe that the service station owner testified and his wife testified, gave a partial description of the accused as I recall.

Her testimony isn't in the record but I don't think that --

Justice Hugo L. Black: Did he identify him?

Mr. George A. Kain: Yes.

Yes, Your Honor.

Justice Hugo L. Black: Both of them?

Mr. George A. Kain: Yes.

Chief Justice Earl Warren: Why isn't that in the record?

Mr. George A. Kain: Well, Your Honor, each party of course had the duty to designate those portions of the record to be prepared for this Court and in view with the cause involved, I felt that I -- if I set forth a portion of the testimony of the actual victim, the owner of the service station, that would indicate that there was at least one eye witness.

I then went to the portion of the record which covered the wife and I could find no small number of pages that encompass this identification that I could pick out and put in the record so I left at it indicating that the owner himself had identified the accused.

Justice Hugo L. Black: You say you couldn't find anything in the wife's testimony?

Mr. George A. Kain: No.

Justice Hugo L. Black: (Inaudible)

Mr. George A. Kain: No, Your Honor, I couldn't find anything within a period -- a space of -- a page or two, and I didn't wish to expand the record forever.

I thought it would --

Justice Hugo L. Black: You didn't find a -- any statement where you've said, is this the man and she said, yes.

Is that it?

Mr. George A. Kain: It's -- it's in the trial court record, yes Your Honor.

Justice Hugo L. Black: It was.

Mr. George A. Kain: But you're aware of how trials proceed, questions are asked and some answers aren't responsive then they refer to it again and I thought it would be sufficient to indicate in as much as the truthfulness of a confession or other evidence --

Justice Hugo L. Black: Not crucial in this case, I was --

Mr. George A. Kain: Yes.

Justice Hugo L. Black: -- just curious as to why (Voice Overlap) --

Mr. George A. Kain: I felt it because --

Justice Hugo L. Black: -- (Inaudible) confession if you have a good case without it.

Mr. George A. Kain: Well, I think the State had a pretty good case without the confession, yes.

Chief Justice Earl Warren: The only reason I asked that question was because you said two other witnesses partially identified him.

Now --

Mr. George A. Kain: Well, I meant --

Chief Justice Earl Warren: Since that -- since you've stated -- said that, you have said that they did positively identified him.

Mr. George A. Kain: Well, the record indicates the identification of the husband, the owner of the service station.

And my recollection is that his wife was not as sure in her identification as he was.

That's all I can say, Your Honor.

If the Court please, under a consideration of all of these circumstances, it made the following observations to be compared possibly with other cases although that is not critical or decisive.

The petitioner here was an adult.

He was a person of average intelligence according to his testimony at the trial.

He was a skilled workman.

He was a sheet metal worker.

He'd been convicted of five serious crimes including robbery, theft of a car, breaking and entering, jailbreak, resisting arrest.

He was on parole at the time he came to the State of Washington and he was pretty familiar with the law enforcement procedures.

In other words, he -- as our -- the Supreme Court of the State of Washington held he was not a lamb.

He was told only that he could call his wife when he was booked on a specific charge.

He was never told according to the undisputed evidence that he could call his wife only when he confessed.

He made two oral confessions after his surrender and initial confession.

He was detained for about 14 hours without being permitted communication prior to signing -- excuse me, 14 hours prior to the dictating the written confession.

And he was detained 16 hours prior to his signing this written confession.

He was giving -- given a hearing as I indicated before a committing magistrate within 17 to 19 hours after his arrest and the day following his arrest when the courts were not in session on the day of his arrest.

And this is kind of unusual.

It's contrary to the majority of the confession cases, at no time did this petitioner denied his guilt to the police.

From the very moment of his arrest, he did not deny his guilt; he confessed.

He was interrogated for a total time of one hour and 15 minutes according to one account, the maximum time that he could have been interrogated by all persons concerned was two hours and 20 minutes.

During this time, during this two hours and 20 minutes maximum, he made four separate confessions; three of them oral and one of them written.

Justice Tom C. Clark: Did I understand you to say that he confessed along the way to the police station?

Mr. George A. Kain: Well Your Honor, confessed, when I use that term, I didn't mean a confession in detail.

He said he was the one they were after.

He got in the car and said he'd robbed the service station.

He then pointed out the service station he had robbed.

In other words, to my way of thinking, that's a complete admission of his guilt unless a confession brief as it may be.

Justice Tom C. Clark: By the owner of this small business at that time?

Mr. George A. Kain: At that time, Your Honor, he was actually had not been booked on any charge.

He was on his way to the police station.

Justice Tom C. Clark: Then when was this second statement to that police officer?

Mr. George A. Kain: The second statement commenced at 10 p.m. and finished at 10:20 or 10:30 and he made no request of any kind during that time.

Justice Tom C. Clark: Was he on the small book then?

Mr. George A. Kain: I don't believe he'd been booked at that time, Your Honor.

I think he was placed on the so-called small book after he'd been placed in the lineup.

They're placed on this book when they‘re -- all it is, is a jail log.

And their names are placed in this jail log when they're taken to the jail.

In this case that didn't occur until maybe 11 or 12 o' clock.

Justice Tom C. Clark: Then there was no prohibition -- if there is a rule that is a prohibition against the cause after the small book entered to put you, there was no such prohibition until the time of the lineup.

Mr. George A. Kain: Well, that's true.

Of course, the uncontradicted test of testimony is that the petitioner didn't ask to make any telephone call to anybody until he'd confess twice orally.

Justice Tom C. Clark: Was that after the lineup that he asked the first time?

Mr. George A. Kain: No, it was before the lineup and after --

Justice Tom C. Clark: (Inaudible)

Mr. George A. Kain: After he had confessed to Lieutenant Wakeley at about 10:20 or 10:30 p.m..

Justice Tom C. Clark: That's when he asked him to contact his wife.

Mr. George A. Kain: The lieutenant could not recall for certain whether he asked to call his wife but he must have because the lieutenant then admitted in his testimony that he had told the petitioner that he, the lieutenant, would call his wife.

Justice Tom C. Clark: Well, the rest of the custody was incommunicado, whatever you want to call it, was in order to --

Mr. George A. Kain: Well it --

Justice Tom C. Clark: -- to write up the confession, is that your theory?

Mr. George A. Kain: Well, Your Honor, I can't explain why the police held this man after they had -- had two oral confessions.

As Mr. Justice Goldberg drew from me, it's obvious that the police desire a written confession.

Justice Tom C. Clark: He had -- he had oral statements to two separate officers.

Mr. George A. Kain: That's correct, Your Honor.

Chief Justice Earl Warren: What is the purpose of the small book?

Mr. George A. Kain: Well, Your Honor the -- the small book, other than the infamous name it's acquired recently, the small book is just a log, as I indicated, in the jail, and the booking procedure required that a man who is booked on a specific charge would be put in what I would imagine they must have called the large book.

And if no specific charge had been brought against the man, in other words, if he had until that point at which a warrant and a complaint had been filed, he could be held only on the small book.

Chief Justice Earl Warren: You mean that if the police arrest a man a few moments after a robbery and he is identified by the people whom he robbed and he confesses to the robbery, that he -- he isn't arrested, in the normal sense of the word and -- and then subject to all of equal processes that are either available to or against him as an arrested man.

Mr. George A. Kain: Well, Your Honor, I must admit that the practice in Spokane, Washington at that time until this day is this.

That --

Chief Justice Earl Warren: To this day exists, you say?

Mr. George A. Kain: No, no, not this small book rule, Your Honor.

People now are permitted to use the telephone, permitted communication with friends and attorneys.

This small book rule didn't last for any period of time.

But the practice, they does continue in the City of Spokane is this.

That when a man is arrested even though the question of his guilt is obvious, he is not taken before a committing magistrate until legal process had be filed in the Court, because the purpose of the judge is twofold.

First, to advice the man as to his constitutional rights, secondly, to set bond, he cannot set bond until he's been fully apprised to the facts surrounding the offense and he sets bond by looking at the allegations and the warrant questioning the officer and then deciding what the bond shall be.

So the practice is that within a reasonable time after an arrest, the complaint warrant are tied up, presented to the judge for signing, and at that point, that the man is given a hearing.

Chief Justice Earl Warren: Well, do you submit that that -- that's the only reason this man was not put on a regular book before he was in this case?

Mr. George A. Kain: Well, Your Honor, I can say this.

If the -- if this had occurred during the ordinary business hours, he would have been taken immediately to the prosecutor's office on the basis of what he had said, a complaint and warrant would have been typed up because it was obvious that this man had -- a crime had occurred and this man had committed it.

This would have been presented to the judge and then he would have been given an appearance at that time, because the judge would have had something to deal with.

Chief Justice Earl Warren: But here in this case that happened late at night and the police and everybody went home and went to bed, and got up in the morning and -- in the morning, they didn't do that.

Mr. George A. Kain: That's correct.

Chief Justice Earl Warren: They went after him again.

Mr. George A. Kain: That's correct.

Chief Justice Earl Warren: And didn't -- then didn't book him until -- until he had made this written confession, had signed it.

Mr. George A. Kain: That's correct, Your Honor.

Chief Justice Earl Warren: So that doesn't quite bear out, does it?

The conclusion that the only reason they don't charge him immediately is because they want to have him advise of his rights.

Mr. George A. Kain: No, I'm sorry, I may have misunderstood.

I didn't -- it's true in this case they could have -- they could have been present at the hour of 8:30 the next morning to request a formal complaint and warrant on the facts that they had at that time.

Chief Justice Earl Warren: Yes.

Justice Tom C. Clark: He just -- the brother confessed?

Mr. George A. Kain: Well, this is kind of an oddity.

His brother in sharp contrast to this petitioner had no criminal record.

His brother steadfastly refused to confess.

He may have confessed but of the inception at the very beginning with contrast to Mr. Haynes, Raymond Haynes, he said nothing to the police.

Justice Tom C. Clark: He said what?

Mr. George A. Kain: He said nothing to the police.

I'm not certain.

I believe a written confession was introduced in evidence with respect to the petitioner Keith Haynes.

The time, I believe, he was questioned for about the same period of time that Raymond was.

Justice Tom C. Clark: When did he first confess?

Chief Justice Earl Warren: Who?

Raymond or the --

Justice Tom C. Clark: The brother.

Chief Justice Earl Warren: The brother.

Justice Tom C. Clark: I mean, the brother.

Mr. George A. Kain: I believe it was sometime before noon, as I recall.

Justice Tom C. Clark: The next day?

Mr. George A. Kain: Yes.

Justice Tom C. Clark: Well, is this small book in the nature of a booking for investigation purposes?

Mr. George A. Kain: That's what it amounts to, yes, Your Honor.

Justice Tom C. Clark: Could it be possible that the police were trying to tie in the brother who had not confessed --

Mr. George A. Kain: That's possibly, yes Your Honor.

Justice Tom C. Clark: -- when they booked him on the small book?

Mr. George A. Kain: That's possible.

Chief Justice Earl Warren: Was the brother convicted too?

Mr. George A. Kain: The brother was convicted and received probation, yes.

If I could complete this summary, Your Honor, the -- there were no false inducements to confess in this case.

There was no indication of lack of adequate food and rest.

There was no nighttime questioning unless we consider nighttime from 11:00 to midnight.

There was no physical violence.

He was questioned by only four officers, I submit, in contrast to the petitioner's briefs.

He was confe -- questioned by officer -- five officers.

Officer Usher, the uniformed officer, Lieutenant Wakeley, Detectives Peck, Cockburn, and Detective Pike.

In this case, no person, relative, friend, or attorney actually sought to visit with petitioners and was turned away.

The testimony undisputed is that if an attorney went to the jail to see him, he would have been admitted.

The petitioner's wife knew of his incarceration at least the next day, the next morning and could have seen fit to her an attorney who would have been admitted in the jail even under the rule excluding friends.

Justice Tom C. Clark: Did Wakeley notify?

Mr. George A. Kain: There's nothing in the record to indicate whether he notified her or not, Your Honor, but the fact that she appeared at the police station the following day and said, “Is Keith in jail?”

(Inaudible) Err, excuse me, “Is my husband Raymond in jail?”

You can take that either way that she'd been told and was verifying it or that she had not been told and was there asking for him because possibly he hadn't come home.

Justice Tom C. Clark: Is that before the written confession?

Mr. George A. Kain: That must have been before -- after the dictation of the written confession and before the signing of the written confession.

Chief Justice Earl Warren: Well, he -- a lawyer couldn't have seen him during the time he's on this small book, could he?

Mr. George A. Kain: Yes, he could Your Honor, if the lawyer had known he was in jail.

Chief Justice Earl Warren: I thought the lieutenant testified that he could not, am I -- you know the record better than I do.

If he didn't -- if he didn't say that why -- we got it -- those -- the rest of your argument but I thought the lieutenant said that -- I think the -- one of these questions asked of Lieutenant Wakeley, “When was he booked?

“He wasn't booked.

He was booked for investigation.

That is an open charge after the people picked him out of the lineup.”

“This book for investigation is what you call a small book down there.”

Answer: “That is right.”

Question: “And when a person is booked for investigation, are they allowed to make any telephone calls, whatsoever?”

Answer: “No.”

“Are they allowed to have any contact with the outside world?”

Answer: “No, we don't allow them to use the phone to call out, if some relative wants to contact the lawyer that is their privilege.”

Question: “That is assuming the relative knew that the party was in custody.”

“That is right.”

Mr. George A. Kain: Yes, Your Honor.

And that coupled with the testimony of Lieutenant Cockburn to the effect that a lawyer could see an accused.

Chief Justice Earl Warren: I don't -- that what?

Mr. George A. Kain: That a lawyer could see an accused even though he was on the small book if he knew he was in jail.

I feel that the answer of Lieutenant Wakeley if somewhere he wants to contact -- if some relative wants to contact a lawyer, that's their privilege.

There wouldn't be much sense in making that statement.I contend if the lawyer couldn't do his job once he'd been contacted.

And Lieutenant Cock -- or Detective Cockburn testified that a lawyer could, under that rule, visit with an accused booked on the so-called small book or held for investigation only.

Justice Tom C. Clark: What page is that?

Mr. George A. Kain: The --

Justice Tom C. Clark: (Inaudible)

That's alright, I'll find it.

Mr. George A. Kain: I believe it's on 69, Your Honor.

Justice Tom C. Clark: Thank you.

Mr. George A. Kain: At that -- on that page it says --

Justice Tom C. Clark: Well, I see it.

I do know what the -- attorney does come to see an individual being held, that is a driving privilege.

Mr. George A. Kain: I -- I've compared the facts in this case even though at first blush they seem extremely vicious with two cases that were decided by this Court solely on the basis of age and I'd like briefly to refer to the facts in those two cases.

I know that each case determines -- rest upon its own facts but I feel that there is such a divergence in the facts between these cases that they're worthy of mention.

The first is Haley versus Ohio, 332 U.S. 596.

In that case, the petitioner was 15 years old contrasted to Mr. Haynes' age of 25 to 30.

He was questioned for five hours and this questioning didn't start until midnight.

The five or six policemen questioned him in relays.

He denied implication in the crime until he was shown alleged confessions of coconspirators.

On the other hand, Petitioner Haynes admitted from the very inception that he was the guilty party.

The petition -- Mr. Haley, the young man, was told that his confession was voluntary and he was told that no promises have been made.

He was not asked this question as was petitioner, Mr. Haynes.

A lawyer in the Haley case actually tried to see this young boy twice and was turned away.

We don't have that situation in the Haynes' case.

His mother wasn't permitted to see him for five days.

He had no court appearance for three days after the confession was signed.

And there was some evidence of physical abuse in that case without citing the law that this Court set forth had held that this case depended basically upon the tender years of the petitioner.

And this Court held that what transpired would make -- make this pass for careful inquiry if a mature man were involved.

It then went on the hold because this was a mere child.

The record should be very carefully scrutinized.

Referring to the nighttime interrogation from midnight to 5 a.m. by relays by police officers, the Court held in part, we cannot believe that a lad of tender years is a match for the police in such a contest.

In Gallegos versus Colorado, a recent case cited by this Court, the petitioner was only 14 years of age.

His formal confession was signed five days after his arrest.

He'd been held incommunicado all of this time.

His mother actually sought to see him.

She actually went to see him and was refused.

This Court, citing the Haley case, held that the fact that the petitioner was only 14 years of age, puts this case on the same footing as Haley versus Ohio.

They held in part, we deal with the person who is not equal to the police in knowledge and understanding.

In that language, in those two cases, I feel is the -- the crux of the situation here because I submit that the petitioner, Raymond Haynes, was very equal to the police in knowledge and understanding.

In the Gallegos -- the case of Gallegos versus Colorado, this Court held that the young man, 14 years of age, cannot be compared with an adult in full position of his senses and knowledgeable of the consequences of his admissions.

And therefore, even though Mr. Gallegos confessed immediately upon his arrest, they held it because he didn't know what his constitutional rights were, that this immediate confession shouldn't be considered.

But in this case, Mr. Haynes, I submit, had the adequate edu -- as adequate an education as Mr.Crooker did in the case of Crooker versus California.

Mr. Crooker had a college education and some law school training.

I asked you to consider the conduct of a law -- a freshman in law school when detained by the police and then consider a man in the position of Mr. Haynes when detained.

A man who had been convicted of, I believe, six crimes, five of them serious crimes, three of them appeared to be felonies, one of them was armed robbery, the facts indicated in this case, he had committed another armed robbery.

He'd been on parole, I think, the record said for some two years is that -- is as indicated in the decision of the Washington State Supreme Court with no disrespect, they held this man was not a lamb.

I feel that under the facts, he was as adequately equipped to deal with the police as Mr. Crooker was in the case of Crooker versus California.

Justice John M. Harlan: Mr. Kain, I wanted to check something.

Am I right in thinking that no exceptions to the judges' charge were made on behalf of the defendant?

Mr. George A. Kain: Your Honor, I read the record again last night and I'm not prepared to answer that.

Justice John M. Harlan: Well, the reason I asked that is because on 132, the only exception I see is made on behalf of the State and I wonder if that is something.

Mr. George A. Kain: Well, Your Honor, there is nothing in the printed record indicating that any exceptions were taken by the defense.

Whether there were exceptions taken in the trial court, I am not prepared to say one way or the other.

I don't recall.

Justice John M. Harlan: The other thing I wanted to ask you, are the summations of counsel to the jury -- the arguments of counsel to the jury included -- they're not included in the printed record but are they -- were they transcribed?

Mr. George A. Kain: I'm not able to say that, Your Honor.

I didn't try that case.

Sometimes they are transcribed if it's an important case where a counsel requests that they'd be transcribed in cases which are a matter of course.

I can't say in this case.

Continuing, Your Honor, I -- I submit that the liberal consideration given to the petitioners in Haley and in Gallegos versus Colorado not be given to this petitioner because the facts, they were not on the same footing.

The facts here are basically boiled down to this.

What -- I suppose some people would call a hardened criminal was told that you can't call your wife, not an attorney, but you can't call your wife until you've been booked.

I was only held 17 to 19 hours before an appearance and he signed a written confession after 16 hours.

Now, the question is, was this --

Chief Justice Earl Warren: Did he also say -- first call -- ask for an attorney?Asked if he could phone an attorney?I thought he first asked -- said he asked for -- in contact with an attorney and then later he just asked for his wife and he testified that after awhile he thought it over and concluded that he didn't want his wife perhaps to get a lawyer or him get another one and then have two lawyers settled on him.

Mr. George A. Kain: Yes, sir.

I believe that he did say, I didn't -- that he did testify that he had asked some police officers for a lawyer.

Chief Justice Earl Warren: Yes, that's what I thought.

Justice Hugo L. Black: You joined issue with the statement of a dissent on page 150, do you not?

Had the Court said that -- the judge said that the appellant was allowed to communicate with anyone not -- were not allowed to communicate with anyone outside despite his repeated request to do so.

And the appellant's wife had telephoned at city jail where he was incarcerated to refuse any information at that time except the fact that he was being held.

The following day, decided it, she called at the jail in the futile attempt to see him not successful until Thursday, December 26, one full week after the arrest.

Do you think the record does not bear that out?

Mr. George A. Kain: That -- my contention is, Your Honor, that their facts were actually disputed.

The judges of the Supreme Court of the State of Washington didn't really differ on the law to any great extent, they differed on the facts.

Half of them or five of them took one version and four of them took the other version.

The judge who wrote this portion of the dissent took a version which, in effect, favored the petitioner, Haynes.

My contention is that the facts were in dispute on every material issue except those, of course that have been conceded before this Court, that the trial court and the jury decided those facts against Haynes, and of course, he was an impeached witness.

They apparently didn't believe what he had to say and they decided those facts against him.

Justice Hugo L. Black: Do you also join the issue with the statement that during the time he was being held, he begged for the opportunity of talking to the prosecutor?

Mr. George A. Kain: I concede that when the written confession was dictated, he did ask -- I don't say that he begged but I say that he asked to see the prosecutor, for what reason I cannot say.

The petitioners have assumed the reason, I'm not -- I can't say why he made that request.

To touch briefly upon what has been charged in the petitioner's supplemental brief as an unlawful arrest in the consequent, illegal seizure of oral declarations from the accused, I briefly state that our position is this.

That first of all, this attack was raised for the first time not in the trial court, not in the State Supreme Court, not in the petition for certiorari, not in the petitioner's brief on the merits, but for the first time by the petitioner's supplemental brief filed before this Court.

There were no objections or motions made before the trial court on this matter.

The Supreme Court of the State of Washington was not permitted to consider it, whether or not the arrest was unlawful, whether the admissions were illegally seized under the authority cited in the respondent's reply brief.

I submit that that matter is not here for consideration at this time.

Assuming that an objection was made, it was not properly preserved according to the state practice which requires assignments of error in the briefs and actual argument in the brief on the point alleged to be error under authority of Beck versus Washington, 369 U.S. 541.

I submit that an illegal arrest and search and seizure of oral declarations is not an enlargement of an argument made in the state court system that was discussed in the case of Wilson versus Crooker.

Now assuming, just for the purpose of argument, that the error had been preserved the facts conclusively show that the arrest was lawful.

There was a description of the guilty party.

A policeman testified that the petitioner was stopped but he didn't quite fit the description.

The petitioner himself says that when they stopped him, they asked him about another man, “Did you see somebody go by?”

Or words to that effect.

He was released.

At that point he was released.

He walked up the sidewalk of a house.

The policeman waited, he returned, got back in the car.

The policeman was still seated in the patrol car apparently for time he walked up.

He surrendered.

He said, “You've got me, let's go.”

When he talked to Lieutenant Wakeley, Lieutenant Wakeley testified that he said, he might as well give up.

So he told them he was the man they were looking for.

That's what Petitioner Haynes told Lieutenant Wakeley about the surrender.

And in his written confession, he said, “I gave up the ghost.”

The meaning of that is pretty obvious.

“I gave up the ghost”, and told him, “I might as well ride downtown with him.”

The petitioner seeks to apply the doctrine of Wong Sun versus the United States to this situation.

I feel that the facts are a great deal different in Wong Sun where doors were broken down on partial information regarding assumed possession of contraband or narcotics.

In this particular case, we have to assume that the arrest was illegal.

I submit that the arrest was not illegal but the petitioner surrendered.

When he surrendered and at that moment, he was arrested not before because he was merely questioned.

He says, the petitioner himself says he was questioned as to whether somebody else might have gone by or run by or been in the area.

So when he was questioned at that moment or when he admitted at that moment that he gave up, he then was taken into custody.

Thank you.

Chief Justice Earl Warren: Mr. Speiser.

Argument of Lawrence Speiser

Mr. Lawrence Speiser: Mr. Chief Justice, may it please the Court.

We have in this case a number of factors that the Court has considered in the past in other cases.

The difficulty with applying a subjective rule to determine whether there was a voluntary confession or a coerced confession is highlighted by this case just in the fact that the two brothers, one of whom had no criminal experience before and was belligerent as testified by the police officer refused to confess at first.

And this man who had had a prior criminal experience at some length, confessed initially and then confessed before his brother.

Therefore, I think the subjective rule or the subjective factor is not a good basis in which to determine the inadmissibility of a confession.

By looking at the objective facts as to what the police did and whether their methods were impermissible under the standards of a civilized society, I think will give a standard here, a more exact standard, in determining the admissibility of the confession.

Here, the police did hold the man incommunicado and they did it for a purpose.

And the purpose was to nail the case down.

And they continued to attempt to nail the case down not only after getting the signed confession in the interrogation room of the police department but there was also subsequent attempt to get succeeding confessions signed before the prosecutor.

The police admit they have this practice.

I think that -- to suggest that the man could have made phone calls before he was placed on small book would -- is totally unrealistic.

I think the small book is merely an expression of police department policy but as far as police department practice is concerned, it's fairly evident that this man could not have made a phone call out anytime until he was booked.

Now, it's been suggested that at first, that he could -- that they were awaiting to present this to the prosecutor.

However, it's to be noted that he wasn't brought before a magistrate until four o'clock in the afternoon.

Justice Arthur J. Goldberg: As a matter of fact, doesn't the record show that the asked to see the prosecutor and he was not given that (Inaudible)

Mr. Lawrence Speiser: Yes, and this appears in the written confession itself.

There are some things we don't know about what was said in the interrogation by this man by the police officer since there was no secretary present and this was not taken down, but in the written confession itself, there was a request by him to see the prosecutor.

Now, Spokane is like most that is I assumed that the magistrate was available at ten o'clock or nine o'clock in the morning, the following morning after his arrest.

Nevertheless, he was not brought before a magistrate at that time when he could have been informed of his rights.

He could have at that point, attempted to contact an attorney perhaps although we can't tell for sure from this record whether this was possible simply because of the fact that he wasn't able to -- as he can testify to contact an attorney for or to contact his wife to contact an attorney for several days after the confession.

Justice Arthur J. Goldberg: Would you state Mr. Speiser what your (Inaudible)

Mr. Lawrence Speiser: Well, I think it can be done in several fashions, Mr. Justice Goldberg.

It can be done in the way the Court has looked at the cases in the past in looking at a totality of circumstances and seeing whether the totality adds up to some impermissible method.

This would involve looking at the factors of the incommunicado detention.

It would look at the factors of not bringing before a magistrate.

It would look at the factor of not advising the individual of his constitutional rights.

It would look at the factor of whether he had counsel to advice him, if he requests a counsel at any time before signing a confession.

I also urge the Court that it could be done on anyone of these factors.

There was a statement in the case of Ward versus Texas which indicates this but as yet the Court has not made any ruling on that one score.

And the cases that have come up to the Court in which the particular emphasis has been on the -- that facet of the Due Process Clause involving the right to counsel in Cicenia versus Lagay and Crooker versus California.

The Court has not been -- was not willing to rely on that one factor alone which was the only factor that raised this constitutional issue before the Court.

But those cases, perhaps, can be distinguishable although in answer to Mr. Justice Stewart yesterday, I urge that they'd be overruled.

They can be distinguished, I believe, on the grounds that in both cases, in Crooker, there was evident in the record that he had been advised of his right to refuse to answer questions and that the statements would be used against him.

Also, there was that very unique circumstance that he had attended law school and presumably therefore knew what his rights were.

In Cicenia, there was a similar awareness of rights and there was a contact with an attorney, with an assumption that an attorney had, in fact, consulted with him prior to his surrender at the police station.

Now, in both of those cases, it seem to me that one of these facets that I've mentioned has had been satisfied as far as the courts are concerned.

And I suggest that this is a distinction in -- as far as those two cases are concerned.

There's nothing in the record here to indicate that this man had an opportunity to consult with an attorney, to talk with an attorney before he confessed.

Justice Arthur J. Goldberg: Now, what you're saying is exactly (Inaudible) the instruction to be given by a court or magistrate (Inaudible)

Mr. Lawrence Speiser: I -- I agree.Unfortunately, there was no objection to this instruction, as far I could tell from the lower court record, however, I'd like to point out in the case of Terminiello versus Chicago, the Court decided that case based on a faulty instruction that was not objected to in the trial court, was not considered in the state courts before it reached this Court.

Justice John M. Harlan: Well then, the instruction didn't stop there.

The Court went on to say, “If you find from the evidence in this case that any officer having custody of either defendant in this case denied him communication with his friends or an attorney in violation of the above statute, then I instruct that you may consider such denial in connection with the voluntariness of any statement made.”

Now, that instruction certainly conforms to the law up to date in this Court.

Mr. Lawrence Speiser: And I -- and I am suggesting that the -- that position I have taken in response to Mr. Justice Goldberg's question is slightly different.

I --

Justice John M. Harlan: You're asking us to substitute at least in some facets a courtesy test on voluntariness rather than the test that up to now has prevailed.

Mr. Lawrence Speiser: I would even suggest eliminating the word “voluntary” as a needlessly confusing term to define to determine whether confessions should be admitted which have been obtained by impermissible methods in line with civilized society standards.

Justice John M. Harlan: In other words, to put it in another way what you'd like to see is the prophylactic rule that is applied in the federal courts under our supervisory powers as represented in one facet by the Mallory rule, you'd like to see something of that kind extend to the States.

Mr. Lawrence Speiser: Yes.

Obviously the prophylaxis of the -- of the exclusionary principle is something I'm urging before the State.

It has been adopted by Mapp versus Ohio in applying as far as one facet of the Fourteenth Amendment's Due Process Clause illegally -- unreasonably search and seizure evidence --

Justice John M. Harlan: Well, I just heard what its (Inaudible) position, and I understand that.

Justice Hugo L. Black: Well, that wasn't based on the idea, was it, that if you -- that we had to sit and determine whether or not the conduct opposed -- violated civilized standards.

Mr. Lawrence Speiser: No, there are -- there were -- there are several factors, it seems to me, in the adoption of the exclusionary rule which have been -- were referred to in Mapp versus Ohio and in other cases in which they come up.

There has -- it has been suggested, it has a deterrent effect on the police and this has been mentioned in determining whether the exclusionary rule had a constitutional basis.

But in addition to that, there was the factor of whether the courts are going to become part of governmental lawlessness that the integrity of the judicial procedure was at stake and for this Court to uphold the utilization in a trial of evidence obtained by unconstitutional methods --

Justice Hugo L. Black: That is quite different.

Mr. Lawrence Speiser: Yes.

I -- I'm suggesting that these two reasons have been both been stressed and I recognized that some justices prefer one reason rather than the other but they have -- are both apparently appear -- appeared in the cases that have discussed the reason for the exclusionary rule.

Justice Hugo L. Black: Of course, if we would hold as a general rule as we could upset any state law, any state action at anytime on our basis of whether or not it violated civilized standards, there would be some question about the lawlessness or the lawfulness of our conduct, would there not?

Mr. Lawrence Speiser: Yes.

And I -- I'm not suggesting that the Court ignored the judicial restraint which is --

Justice Hugo L. Black: I'm not talking about judicial restraint.

I'm talking about interpretation whether you -- interpreting the Constitution according to this language or introducing a new factor rather what the Court thinks it violates civilized standards.

Mr. Lawrence Speiser: Well, the definiteness of that has been subject to too much criticism and an easy answer then would be the civilized standards or whether there's been a violation of the Constitution in some fashion --

Justice Hugo L. Black: That would -- suits to be better.

Mr. Lawrence Speiser: I'm always willing to try to suit you, Justice Black.

The exclusionary rule has had a benefit on police lawlessness.

There -- were refusing cries about the Mallory-McNabb rule and I realized that that was based on the supervisorial capacity of the Court over the -- over the federal courts.

But in spite of the cries that the adoption of McNabb-Mallory rule would prevent efficient law enforcement, efficient law enforcement has gone on within the District of Columbia.

Oliver Gasch who was formally the U.S. Attorney here indicated that that was only an issue in approximately 5% of the cases and it has had some effect on the police practices here to the extent that arrests for investigation are to be ended here in the District of Columbia after a thorough study by indicating that they were unconstitutional.

The effect of Mapp versus Ohio is completely still too early to say, however, the benefit of experience in the States that have the exclusionary rule indicated that it had a beneficial effect.

But we have had, in the courts since 1936, a series of so-called coerced confession cases in which they have been earmarked by arrest on suspicion, incommunicado interrogation which involves refusal to permit contact with friends and relatives, no informing of rights to silence in the counsel, delay in bringing before magistrates and a denial of bail and a denial of writ of habeas corpus during that interim period.

The governments and the states have in effect become lawbreakers and there's a very intimate relationship between the willingness of the people to observe laws and their cynicism which will develop if they feel that the Government itself is a lawbreaker.

Justice Brandeis in his dissenting opinion in Olmstead, it seems to me, made the most eloquent statement as to the value of this.

To declare that in the administration of the criminal law, the end justifies the means.

To declare that the Government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution.

Against that pernicious doctrine, this Court should resolutely set its base.