MIRANDA v. ARIZONA

Print this transcript Transcript: 

Argument of John J. Flynn

Chief Justice Earl Warren: Number 759, Ernesto Miranda, Petitioner, versus Arizona.

We'll wait just a few moments until they get seated.

Mr. Flynn, you may proceed now.

Mr. John J. Flynn: Mr. Chief Justice, may it please the court.

This case concerned itself with the conviction of a defendant of two crimes of rape and kidnapping, the sentences on each count of 20 to 30 years to run concurrently.

I should point out to the court in an effort to avoid possible confusion, that the defendant was convicted in a companion case of the crime of robbery in a completely separate and independent act.

However, the Supreme Court of the State of Arizona treated that conviction as a companion case in a companion decision, and portions of that record have been appended to the record in this case as it bears on the issue before the Court.

Now the issue before the Court is the admission in evidence of the defendant's confession under the facts and circumstances of this case over the specific objections of his trial counsel that it had been given in the absence of counsel.

The trial court in June of 1963, prior to this Court's decision in Escobedo, allowed the confession into evidence.

The Supreme Court of the State of Arizona in April of 1965, after this Court's decision in Escobedo, affirmed the conviction and the admission of the confession in evidence.

This Court has granted us review.

The facts in the case indicate that the defendant was a 23-year-old, Spanish-American extraction, that on the morning of March 13, 1963, he was arrested at his home, taken down to the police station by two officers named Young and Cooley.

That at the police station, he was immediately placed in a line-up, he was there identified by the prosecutrix in this case and later identified by the prosecutrix in the robbery case.

Immediately after the interrogations, he was taken into the police confessional at approximately 11:30 a.m. and by 1:30 they had obtained from him an oral confession.

Justice William J. Brennan: Well, what's a “police confessional”?

Mr. John J. Flynn: The interrogation room, described in the transcript as Interrogation Room No. 2, if Your Honor please.

He had denied his guilt, according to the officers, at the commencement of the interrogation, by 1:30 he had confessed.

I believe that the record indicates that in no time during the interrogation, and prior to his confession, his oral confession, was he advised either of his rights to remain silent, or his right to counsel, or of his right to consult with counsel, nor indeed, was such the practice in Arizona at that time as admitted by the officers in their testimony.

The defendant was then asked to sign a confession to which he agreed.

The form handed to him to write on contained a typed statement as follows which precedes his handwritten confession - “I, Ernesto A. Miranda, do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity, and with full knowledge of my legal rights, understanding any statement I make may be used against me.”

This statement was read to him by the officers, and he confessed in his own handwriting.

Throughout the interrogation, the defendant did not request counsel at any time.

In due course, the trial court appointed counsel to defend him in both cases and the defense counsel requested a psychiatric examination, which has been made a court the -- and the medical report has been made a portion of the transcript of the record in this case as it enlightens us to a portion or some of the factual information surrounding the defendant.

Justice Abe Fortas: Mr. Flynn, I'm sorry to interrupt you but you said that he was not -- that Miranda was not told that he might remain silent.

Did you say that?

Mr. John J. Flynn: That is correct --

Justice Abe Fortas: Is there a dispute --

Mr. John J. Flynn: -- Your Honor.

Justice Abe Fortas: -- as to that?

Mr. John J. Flynn: Yes, there is, Your Honor, and I believe it arises as a result of the appendix in the robbery conviction.

In this respect, I would answer Your Honor's question by referring to page 51 of the petitioner's brief, to the appendix -- or excuse me, page 52.

At the top in which the question was asked by Mr. Moore, the trial counsel - “Did you state to the defendant at any time before he made the statement you are about to answer to, that anything he said would be held against him?”

Answer,‘‘No, sir.”

Question, “You didn't warn him of that?”

Answer, “No, sir.”

Question, “Did you warn him of his rights to an attorney?”

Answer, “No, sir.”

Mr. Moore, “We object, not voluntarily given.”

Mr. Turoff, “I don't believe that is necessary.”

The Court, “Overruled.”

On page 53, the succeeding page, a portion of the same record indicates further cross-exam -- further examination concerning this conversation, “Had you offered” -- I am starting approximately one-third down the page, “Had you offered the defendant any immunity?”

Answer, “No, sir.”

“In your presence, had Officer Cooley done any of these acts?”

Answer,“No, sir.”

Question, “About what time did this conversation take place, Officer?”

Answer,“Approximately 1:30.”

“Shortly after Mrs. McDaniels made her first statement, is that correct?”

Answer, “Yes, sir.”

“Can you tell us now, Officer, regarding the charge of robbery, what was said to the defendant and what the defendant answered in your presence?”

Answer, “I asked Mr. Miranda if he recognized --” and there the question terminates.

Justice Abe Fortas: Well, I --

Mr. John J. Flynn: I submit --

Justice Abe Fortas: I was referring to page 4 of your brief upon which you said that Officer Young believes that Miranda was told that he need not answer those questions.

Mr. John J. Flynn: I was about to continue, if Your Honor please, to page 54, at which we find the question, “You never warned him he was entitled to an attorney or anything he said would be held against him, did you?

Answer, “We told him anything he said would be used against him, he wasn't required by law to tell us anything.”

And consequently, this would answer Your Honor's question, except bearing in mind that the record clearly reveals that from the lineup and the identification to the interrogation room, the officers established the time as 11:30, and that the confession was completed and signed at 1:30.

Reading the testimony of the robbery conviction, it is apparent to me that the officers, when they recite or answered on page 54 of the transcript that he had been advised of his rights, were again relating to this formal typed heading, which would be at 1:30, at the time he signed a confession, that hence, there really is no conflict in the record as to when he was advised of his rights.

The further history relating to this defendant found in the psychiatric examination would indicate that he had an Eighth Grade education.

And its found by the Supreme Court that he had a prior criminal record and that he was mentally abnormal.

He was found, however, to be competent to stand trial and legally sane at the time of the commission of the alleged acts.

Now, the critical aspect of the defendant's case -- confession, I think, is eminently demonstrated when during the trial the prosecutrix was asked the question concerning penetration, in which she first responded that she was -- that she thought it was by finger, under questioning by the prosecuting attorney.

Immediately thereafter, she expressed uncertainty as to the manner or method of penetration and after some prompting, responded to the prosecuting attorney that it had been in fact, by the male organ.

On cross-examination, she again expressed the uncertainty in relation to this penetration which of course is the essential element of the crime of first-degree rape in the State of Arizona, when she did -- responded to his question that she simply was unsure whether it had been by finger or by penis.

Now of course, the defendant's confession neatly corrects this “reasonable doubt” that otherwise would have been engendered, when in precise terminology he wrote, “Asked her to lie down, and she did.

Could not get penis into vagina, got about one-half (half-written) inch in.”

The only thing missing or the only thing that the officers failed to supply in words to this defendant at the time he wrote this confession was in violation of Section 13-611, Arizona Revised Statutes.

Then of course, they would have had the classic confession of conviction because they could have argued that the man even knew the statutory provisions relating to rape.

The state as I read their response, takes no issue with the statement of facts as I've outlined them to this Court, except to say that we overstate his mental condition and minimize his educational background.

And also the concern that is expressed by Mr. Justice Fortas concerning at what stage of the proceeding he may have been advised of his right to remain silent.

Now, the petitioner's position on the issue is simply this, the Arizona Supreme Court, we feel, has imprisoned this Court's decision in Escobedo on its facts.

And by its decision is refusing to apply the principles of that case and for all practical purposes has emasculated.

Certainly every court desiring to admit a confession can find distinguishing factors in Escobedo from the fact situation before it.

I would like to very briefly quote from the transcript of the record which contains the Arizona decision at page 87.

"It will be noted that the Court in the Escobedo case set forth the circumstances under which a statement would be held admissible, namely, one, the general inquiry into an unsolved crime must have begun to focus on a particular suspect.

Two, the suspect must have been taken into police custody.

Three, the police in its interrogation must have elicited an incriminating statement.

Four, the suspect must have requested and been denied an opportunity to consult with his lawyer.

Five, the police must not have effectively warned the suspect of his constitutional rights to remain silent.

When all of these five factors occur, then the Escobedo case is a controlling precedent.”

Now, the Arizona Supreme Court having built or having indicated its clear intention to imprison the Escobedo decision set about to do precisely that.

First, as to the focusing question, it indicated that this crime had occurred at night.

And consequently, despite the positive identification of the defendant by two witnesses, which the state urged were entirely fair lineups, the Supreme Court of Arizona indicated that even then perhaps under these facts, attention had not focused upon this defendant.

I think this is sheer sophistry and would indicate the obvious intent of the Arizona Supreme Court to confine Escobedo and to distinguish it whenever possible.

Next, the court found that the defendant was advised of his rights in the reading of the typed portion immediately preceding its transcript.

They permitted that document to lift itself by its own bootstraps so to speak, and to indicate that here was a man who was knowledgeable concerning his legal rights, despite the facts and circumstances of his background and his education.

And they further found that he was knowledgeable because he had a prior criminal record, though in the decision he indicated this would be knowledge of his rights in court and certainly not his rights at the time of the interrogation.

I think the numerous briefs filed in this case indicating the substantial split in the decisions throughout the various states, the Circuits and the Federal District Courts, indicate the interpretation that has been placed upon Escobedo.

On the one hand, we have the California decision in Dorado.

We have the Third Circuit's decision in Russo, which would indicate that principle and logic are being applied to the decision.

And in the words of Mr. Justice Goldberg, that when the process shifts from the investigation to one of accusation, and when the purpose is to elicit a confession from the defendant, then the adversary process comes into being.

On the other hand, the other cases that would distinguish this have found and give rise to what I submit is not really confusion by merely straining against the principles and logic in that decision.

Justice Potter Stewart: What do you think is the result of the adversary process coming into being when this focusing takes place?

What follows from that?

Is there then a -- what -- a right to what, a lawyer?

Mr. John J. Flynn: I think that the man at that time has the right to exercise, if he knows, and under the present state of the law in Arizona, if he is rich enough, and if he's educated enough to assert his Fifth Amendment right and if he recognizes that he has a Fifth Amendment right to request counsel.

I simply say that at that stage of the proceeding, under the facts and circumstances in Miranda of a man of limited education, of a man who certainly is mentally abnormal, who is certainly an indigent, that when that adversary process came into being that the police, at the very least, had an obligation to extend to this man not only the -- his clear Fifth Amendment right, but to accord to him the right of counsel.

Justice Potter Stewart: Oh, I suppose, if you really mean what you say or what you gather from what the Escobe -- from what the Escobedo opinion says, the adversary process starts at that point and every single protection of the Constitution then comes into being, does it not?

The right to -- you have to bring a jury in there, I suppose?

Mr. John J. Flynn: No, Your Honor, I wouldn't bring a jury in.

I simply would extend to the man those constitutional rights which the police would at that time taken away from him, simply his Fifth Amendment --

Justice Potter Stewart: Well, without taking the question.

My question is, what are those rights when this focusing begins?

Are these all the panoply of rights guaranteed to a defendant in a criminal trial?

Mr. John J. Flynn: I think that the first right is the Fifth Amendment right, not to incriminate oneself, the right to know that you have that right and that of the right to consult with counsel, at the very least, in order that you can exercise the right, Your Honor.

Justice Potter Stewart: Well, I don't fully understand your answer, but -- because if the adversary process then begins, then what you have is the equivalent of a trial, do you not?

And then I suppose you have a right to a judge and a jury and everything else that goes with a trial right then and there.

And if you have something less than that, then you'd -- then this is not an adversary proceeding, then you don't mean what you're saying.

Mr. John J. Flynn: I think what I say with -- what I am interpreting “adversary proceeding” to mean that at that time, a person who is poorly educated, who in essence is mentally abnormal, who is an indigent to -- if he is in adversary proceeding, at the very least, he is entitled, at that stage of the proceeding, to be represented by counsel and to be advised by counsel of his rights under the Fifth Amendment of the Constitution or he has no such right.

Justice Potter Stewart: Well, again I don't mean to quibble, and I apologize, but I think it's first important to define what those rights are, what his rights under the constitution are at that point.

He can't be advised of his rights unless somebody knows what those rights are.

Mr. John J. Flynn: Precisely my -- my point.

And the only person that can adequately advise a person like Ernest Miranda is a lawyer.

Justice Potter Stewart: And what --

Mr. John J. Flynn: That's -- I think --

Justice Potter Stewart: What would a lawyer advise him that his rights stand where?

Mr. John J. Flynn: That he had a right not to incriminate himself, that he had the right not to make any statement, that he had a right to be free from further questioning by the police department, that he had the right, at the ultimate time, to be represented adequately by counsel in court, that if he was too indigent and poor to employ counsel, that the state would furnish him counsel.

Justice Potter Stewart: And what is it that confers the right to a lawyer's advice at that point and not -- and not on an earlier point?

Mr. John J. Flynn: The adversary proceeding.

Justice Potter Stewart: The Sixth Amendment?

The Sixth Amendment?

Mr. John J. Flynn: No.

The attempt to erode, or to take away from him, the Fifth Amendment right which already existed and that was the right not to incriminate himself to be convicted out of his own mouth.

Justice Potter Stewart: Well, didn't he have that right earlier?

Mr. John J. Flynn: If he knew about it.

Justice Potter Stewart: Before this became a so-called “adversary proceeding” to be?

Mr. John J. Flynn: Yes, Your Honor, if he knew about it --

Justice Potter Stewart: And why does he --

Mr. John J. Flynn: -- he was aware of it, if he was knowledgeable.

Justice Potter Stewart: Then didn't he have the right to a lawyer's advice earlier then?

Mr. John J. Flynn: If he could afford it, yes.

He was intelligent enough and strong enough to stand up against police interrogation and request it, yes.

Justice Potter Stewart: What I'm getting at is, I don't understand the magic in this phrase of “focusing” that all of a sudden it becomes an adversary proceeding.

And then I suppose if you literally mean that it becomes an adversary proceeding then you're entitled to all the rights that the defendant is given under our Constitution at a criminal trial.

And if you mean less than that, then it -- then you don't really mean, its now become the equivalent of a trial.

Mr. John J. Flynn: Well, I simply mean that when it becomes an adversary proceeding, at the very least, a person in Ernest Miranda's position needs the benefit of counsel, and unless he is afforded that right to counsel he simply has, in essence, no Fifth or Sixth Amendment right, and there is no due process of law being afforded to a man in Ernest Miranda's position.

Justice Abe Fortas: Well, is it possible that prior to this so-called “focusing” or let's say prior to arrest knowing that those don't mean the same thing, that a citizen has an obligation to cooperate with the state, give the state information that he may have relevant to the crime, that upon arrest or upon this “focusing” that the state and the individual then assume the position of adversaries and there is at the very least, a change in that relationship between the individual and the state and therefore in their mutual rights and responsibilities?

I don't know whether that's what my Brother Stewart is getting at and perhaps it is unfair to discuss this through you.

But if you have a comment on it, I'd like to hear it.

Mr. John J. Flynn: Well, I -- I think that the only comment that I could make is that, without getting ourselves into the area of precisely when “focusing” begins, that I must in this instance limit it to the fact situation and the circumstances of Ernesto Miranda, because for every practical purpose, after the two-hour interrogation, the mere formality of supplying counsel to Ernest Miranda at the time of trial, in what I would submit would really be nothing more than a mockery of the assertion of his Sixth Amendment rights to be represented in court, to go through the formality of a trial and conviction takes place.

Well, this simply is not a matter of the record.

It is in the robbery trial, and I think it so illustrates the position of what occurs in the case of persons who have confessed as Ernest Miranda.

The question was asked in the robbery trial which preceded the rape trial by one day of Mr. Moore.

The court, Are you ready to go to trial?”

Mr. Moore, “I have been ready.

I haven't anything to do but for my men and sit down and listen.”

Justice Hugo L. Black: May I ask you one question, Mr. Flynn, about the Fifth Amendment?

Let's forget it that if an amendment could provide that there's no person shall be compelled to be a witness against himself, disassociated entirely from the right to counsel.

You've said several times, seemed to indicate that in determining whether or not a witness -- witness or a person could be compelled to commit himself.

It might depend to some extent on his literacy or illiteracy, his wealth or his lack of wealth, his standing or his lack of standing.

Why does that have anything to do with it?

Why does the Amendment not compelled -- not protect the rich as well as the poor, the literate as well as the illiterate?

Mr. John J. Flynn: Well, I'd say that it certainly and most assuredly, does protect them.

Justice Hugo L. Black: What is that?

Mr. John J. Flynn: That in the state of the law today as pronounced by the Arizona Supreme Court, under those guiding principles, it certainly does protect the rich, the educated, and the strong, those rich enough to hire counsel, those who are educated enough to know what their rights are and those who are strong enough to withstand police interrogation and assert those rights.

Justice Hugo L. Black: Well, I'm not --

Mr. John J. Flynn: It does not afford protection.

Justice Hugo L. Black: I'm asking you only about the Fifth Amendment's provision, "No person shall be compelled to be a witness against himself."

Does that protect every person or just some persons?

I'm not talking about impractical effect.

I'm talking about what the Amendment is supposed to do.

Mr. John J. Flynn: It protects all persons from incriminating or convicting themselves (Voice Overlap) --

Justice Hugo L. Black: Would literacy or illiteracy have anything to do with it if they compelled him to testify, whatever that -- whatever comes within the scope of that?

Mr. John J. Flynn: At the interrogation stage, if he is simply is too ignorant to know that he has the Fifth Amendment right, then, certainly literacy has something to do with it, Your Honor.

If the man at the time of the interrogation has never heard of the Fifth Amendment, knows nothing about its concept or its scope, knows nothing of his right, then certainly his literacy --

Justice Hugo L. Black: He'd have more rights, because of that?

I don't understand.

The Fifth Amendment right alone, not to be compelled to be a witness against himself, --

Mr. John J. Flynn: Well --

Justice Hugo L. Black: -- who does that cover?

Mr. John J. Flynn: Perhaps I have simply not expressed myself --

Justice Hugo L. Black: Does that cover everybody?

Mr. John J. Flynn: Covers everybody, Your Honor.

Justice Hugo L. Black: Well, that's what I was asking.

Mr. John J. Flynn: Clearly in practical application, in view of the interrogation and the facts and circumstances of Miranda, it simply had no application because of the facts and circumstances in that particular case and that's what I'm attempting to express to the Court.

Now the Arizona Supreme Court went on to -- in essence we submit, turn its decision primarily on the failure of the defendant in this case to request counsel, which is the only really distinguishing factor that they could find.

Justice Potter Stewart: Is there any claim in this case that this confession was compelled, was involuntary?

Mr. John J. Flynn: No, Your Honor.

Justice Potter Stewart: None at all?

Mr. John J. Flynn: None at all.

Justice Byron R. White: Do you mean --

Mr. John J. Flynn: So the question --

Justice Byron R. White: Do you mean if the -- that there's no question that he was not compelled to give evidence against himself?

Mr. John J. Flynn: We have -- not raised no question that he was compelled to give this statement --

Justice Byron R. White: So there is no --

Mr. John J. Flynn: -- in the sense that anyone forced him to do it by coercion, by threats, by promises, or compulsion of that kind.

Justice Byron R. White: “Of that kind”?

Was he -- was it voluntary or wasn't it?

Mr. John J. Flynn: Well, voluntary in the sense that the man at a time without knowledge of his rights --

Justice Byron R. White: Do you claim this Fifth Amendment rights were violated?

Mr. John J. Flynn: I would say that his Fifth Amendment right was violated to the extent --

Justice Byron R. White: So, he was compelled to do it?

Mr. John J. Flynn: Because he was compelled to do it?

Justice Byron R. White: That's what the Amendment says.

Mr. John J. Flynn: Yes, to the extent that he was, number one, too poor to exercise it.

Number --

Justice Byron R. White: Well, whatever the Fifth --

Mr. John J. Flynn: -- two, mentally abnormal.

Justice Byron R. White: Whatever the Fifth said, you say he was compelled to do it?

Mr. John J. Flynn: I say it was taken from him at a point in time when he absolutely should have been --

Justice Byron R. White: Well, I know but I'm not --

Mr. John J. Flynn: -- afforded the Sixth Amendment (Voice Overlap) --

Justice Byron R. White: I'm not talking about violating the Amendment, namely the term, this provision that he was -- to violate the Amendment is -- the Fifth Amendment right, he has to be compelled to do it, doesn't he?

Mr. John J. Flynn: In the sense that Your Honor is presenting to me the word “compelled,” you're correct.

Justice Hugo L. Black: Do you know --

Justice Byron R. White: Well, I was talking what the Constitution says.

Justice Hugo L. Black: He doesn't have to have a gun pointed at his head, does he?

Justice Byron R. White: Of course he does.

So he was compelled to do it, wasn't he, according to your claim?

Mr. John J. Flynn: Not by gunpoint as Mr. Justice Black has indicated.

Justice Byron R. White: I know but --

Mr. John J. Flynn: He was called upon to surrender a right that he didn't fully realized and appreciate that he had.

Justice Byron R. White: But in all the circumstances --

Mr. John J. Flynn: It was taken from him.

Justice Byron R. White: -- I'm just trying to find out if he claimed his Fifth Amendment rights were being violated.

And if they were, he must be compelled -- you say, compelled to do it under all the circumstances.

Mr. John J. Flynn: I would say that as a result of lack of knowledge of -- or for lack of a better term failure to advise, the denial of the right to counsel, staged in a proceeding when he most certainly need it -- needed it that this could in and of itself and certainly in most police interrogations --

Justice Hugo L. Black: Why wouldn't you add to that effect --

Mr. John J. Flynn: -- constitute compulsion.

Justice Hugo L. Black: -- if the state had him in its control and custody?

Why would that not tend to show some kind of coercion or compulsion?

Mr. John J. Flynn: The whole process of a person having been raised, I would assume, to tell the truth and to respect authority.

Justice Hugo L. Black: Was he allowed to get away from there at will?

Mr. John J. Flynn: No, Your Honor.

He was in confinement and under arrest.

Justice Hugo L. Black: The state had moved against him by taking him and to question him, did it not?

Mr. John J. Flynn: That is correct.

Chief Justice Earl Warren: I suppose -- I suppose Mr. Flynn, you would say that if the police had said to this young man, “Now, you're a nice young man and we don't want to hurt you and so forth.

We're your friends and if you'll just tell us how you committed this crime, we'll let you go home and we won't prosecute you,” that that would be a violation of the Fifth Amendment and that technically speaking would not be “compelling” him to do it.

It would be an inducement, wouldn't it?

Mr. John J. Flynn: That is correct.

Chief Justice Earl Warren: That would -- I suppose you would argue that that is still within the Fifth Amendment, wouldn't you?

Mr. John J. Flynn: It is an abdication of the Fifth Amendment rights --

Chief Justice Earl Warren: Yes.

Mr. John J. Flynn: -- simply because of --

Chief Justice Earl Warren: That's what I mean.

Mr. John J. Flynn: -- the total circumstances existing at the time, the arrest, the custody, the lack of knowledge, the status of the individual.

Chief Justice Earl Warren: In fact, we have held that cases of that kind that confessions are bad, haven't we?

Where they said, “It would be better for you if you do, we'll let you go” so forth?

Mr. John J. Flynn: That of course is an implied promise of --

Chief Justice Earl Warren: Yes.

Mr. John J. Flynn: -- some help or immunity of some kind.

Chief Justice Earl Warren: That isn't strictly --

Mr. John J. Flynn: That certainly --

Chief Justice Earl Warren: -- compulsion (Voice Overlap).

Mr. John J. Flynn: -- is not compulsion.

Chief Justice Earl Warren: We've been talking about it.

Mr. John J. Flynn: In the sense, the word as Mr. Justice White has implied it.

Justice Hugo L. Black: As I recall, in those cases I agree with the Chief Justice, as I recall, in those cases that was put on the Fifth -- under the Fifth Amendment, and the words of the Fifth Amendment was referred to in the early case by Chief Justice White, I believe it was, the fact that inducement is a compulsion and was brought in that category, therefore it violated the Amendment against being compelled to give evidence against yourself.

Mr. John J. Flynn: I'm sure Mr. Justice Black (Inaudible) far better than --

Justice Hugo L. Black: So it's a question of what “compel” -- what “compel” means.

But does not depend, I suppose, I haven't seen it in any of the cases, on the wealth, on the standing, or the status of the person, so far as the right is concerned.

Mr. John J. Flynn: Yes, I think perhaps that was a bad choice of words in context, if Your Honor please, at the time I state them.

I would like to state that in conclusion, that the Constitution of the State of Arizona, for example has, since statehood, provided to the citizens of our state language precisely the same as the Fourth Amendment to the Federal Constitution as it pertains to searches and seizures.

And yet from 1914 until this Court's decision in Mapp versus Ohio, we simply did not enjoy the Fourth Amendment rights or the scope of the Fourth Amendment rights that were enjoyed by most of the other citizens of the other states of this Union, and those persons who were under federal control.

In response to the amicus from New York and for the amicus for the National Association of Defense Attorneys that would ask this Court to go slowly and to give the opportunity to the states, to the legislature, to the courts, and to the Bar Association to undertake to solve this problem, I simply say that whatever the solutions may be, it would be another 46 years before the Sixth Amendment right in the scope that it was intended, I submit, by this Court in Escobedo, will reach the State of Arizona.

We're one of the most modern states in relation to the adoption of the American Law Institute rules.

We have a comparable rule to Rule 5.

To my knowledge, there has never been a criminal prosecution for failure to arraign a man.

There is no decision in Arizona that would even come close to the McNabb or Mallory Rule in Arizona.

In fact, the same term that Miranda was decided, the Arizona Supreme Court indicated that despite the necessity and requirement of an immediate arraignment before the nearest and most successful magistrate that Mallory versus McNabb did not apply.

Chief Justice Earl Warren: Mr. Nelson.

Argument of Gary K. Nelson

Mr. Gary K. Nelson: Mr. Chief Justice, may it please the Court.

Counsel somewhat caught up in where to begin.

I think perhaps the first and most important -- to one of the most important things to say right now is concerning Mr. Flynn's last remarks.

I, as a prosecutor, even of only short duration, take serious issue, strenuous -- strenuous issues I can take before this Court, in the statement that it will take another 46 years in the State of Arizona for the right to counsel to become full blown.

I just simply think there is no reason for that statement to be made.

If there is any reason for it to be made or any possible justification for it to be made then there is no point in going any further.

One issue that might be a good starting point is concerning the description of the Arizona Court's supposed “off-the-cuff” referral to or ignoring of the Escobedo decision, or the attempt to avoid it clearly.

There is no such thing in the Arizona Supreme Court opinion, and the reading of it shows that they agreed that they must follow this Court, not begrudgingly.

They simply stated that it's a fact.

And then in exploring the case of Escobedo, the case of Miranda, they tried to find out what happened in Miranda, what the case of Escobedo says, and apply those principles.

There's no attempt to avoid, and I don't think you can read it implicitly or otherwise in the Arizona Court's opinion.

Clearly they did not base it on a request.

They did not say we have A, B, C, D, E and D wasn't present, therefore it's not controlling.

That is not what they said.

They said many courts in other jurisdictions had gone off on that particular area.

They mentioned that as a factor, but they discussed hundreds of -- not hundreds, many other factors in Miranda, which differentiated it from Escobedo.

To get to the facts in Miranda, I think it's very clear from the record that Mr. Miranda, as an individual defendant, does not particularly require any special rule.

I certainly agree with Justice Black 100%, that the Fifth Amendment, the Sixth Amendment, every other part of our Constitution applies to everyone -- poor, rich, ignorant, intellectual, what have you.

There is no possible basis for differentiation.

I don't argue that.

I don't think any prosecutor I've note argues it.

But Miranda, I think, characteristically by the petitioner, is portrayed in this light in an attempt to make something that isn't there.

Sure, he only went through the Eighth Grade, and one of the psychiatrist said that he had an emotional illness.

I might say, there is another psychiatric report.

It's not in the printed record, and I just discovered it in my file, but it is in the record before this Court, the record that was on appeal, and I would urge the Court to advert to that psychiatric report also.

And as to the fact that Mr. Miranda could not have made the statement that he made, I just don't think there is any basis for alleging that.

The fact that he uses the words, the medical words to describe the male and female sex organ rather than some four-letter vernacular words that he might have used, this doesn't condemn him of -- just because he knew those words and maybe felt in this context in writing the statement that he could use them.

There is no indication in the record that the police put these words in his mouth.

The fact that this particular one-half inch penetration is something that the police conjured up in his mind is just simply not supportable by the record.

You read the psychiatric report and that is in the record and he said he was upset when he found out that she had not had sexual relations before.

Well, she told him that.

The only way he found out was because, obviously from the record, as he said, he was only able to make penetration, only a slight way, simply because of the fact that the woman's hymen had not been ruptured.

This is a clear, factual as to -- that he knew why he made that statement and why it was accurate, not a fabrication of the police officers.

Justice Abe Fortas: Mr. Nelson, on page 19 of your brief you assert that petitioner was advised of his Constitutional rights, specifically including his right to remain silent, the fact that his statement had to be voluntary, and that anything he did say could be used against him.

Mr. Gary K. Nelson: Yes, Your Honor.

I wouldn't have any --

Justice Abe Fortas: It's the only basis for that the printed legend in the confession that he signed?

Mr. Gary K. Nelson: No, I don't believe I would've put in a strong statement concerning his right to remain silent had not we agreed to stipulate to this other portion of the other record.

But I believe that as long as that's in the record, I can make this statement because it's supported in the finding of the court based on the interrogation of the officers, the testimony of the officers in the trial that is actually before this Court concerning their advise to him, and the findings of the court based on his understanding, the reading of the statement, the testimony coupled with this.

I believe, then, that the court below, which clearly found that to be true, that he had been fully advised, had a proper basis for finding all of these to exist except that there is no quarrel that he was not specifically advised that he had a right to counsel.

Justice Abe Fortas: Is it your position that the record shows that he was advised of these rights somehow, some way, in addition to the legend on his confession?

That's my question.

Mr. Gary K. Nelson: Yes.

Justice Abe Fortas: And how?

Where is that?

Mr. Gary K. Nelson: I believe the police officers testified to the fact that they told him of his rights and that they also, besides telling him that perhaps -- the record is a little unclear, in both cases, as to exactly when it took place but I believe the record supports a statement that he was advised specifically by them of his rights and then he was adverted to the paragraph and perhaps even again the paragraph was read to him.

But it -- the record is not really all four-square.

It is not that clear.

Justice Abe Fortas: Alright, let us assume that he was so advised and I understand you to say that the record is not clear on the point.

Let us assume that he was advised of his rights.

In your opinion, does it make any difference when he was advised?

That is, whether he was advised at the commencement of the interrogation or in the early stage of the interrogation or whether he was advised only when he was ready to sign the confession, the written confession?

Does that make --

Mr. Gary K. Nelson: Well --

Justice Abe Fortas: -- any difference in terms of the issues before us?

Mr. Gary K. Nelson: Assuming for a moment that some warning is going to be required or should have been given or isn't, then I would think, to be of any effect it must be given before he'd made any statement.

Perhaps he might've refused to sign a written confession.

Certainly still, the oral statements could have been introduced against him there.

Justice Abe Fortas: So you -- you think that the warning, if necessary, has to be given prior to the interrogation?

Mr. Gary K. Nelson: At some meaningful time, right.

I would think it have to be at some time prior to the fact that after -- if they used it before, of course the warning would mean nothing.

If they could introduce what they had obtained probably before they gave the warning and what afterwards --

Justice Abe Fortas: Well now, do you believe that -- is it your submission to us that a warning is necessary before a confession in the absence of counsel, can be taken and subsequently introduced in the trial?

Mr. Gary K. Nelson: No.

Justice Abe Fortas: What is your position on that?

Mr. Gary K. Nelson: No.

My position basically is -- concerning the warning, is that each case presents a factual situation in which the court would have to determine or a court or a judge or prosecutor at some level would have to make a determination as to whether or not a defendant because of the circumstances surrounding his confession was denied a specific right, whether it be right to counsel, the right to not be compelled to testify against himself.

And that the warning, or an age or literacy, the circumstances, length of the questioning, all these factors would be important.

But I don't think you can pin it to one simple thing as a warning because of -- there are perhaps many situations we could think of where a warning would be completely inadequate.

Justice Abe Fortas: Well, tell me some of the factors that would be relevant in the absence of a warning.

Mr. Gary K. Nelson: His age, his experience, his background, the type of questioning, the atmosphere of questioning, the length of questioning, time of -- the time of day, perhaps, all of these factors.

Justice Abe Fortas: Do you think -- well, what we ought to do is to devise something like the Betts and Brady rule, special circumstances?

Mr. Gary K. Nelson: Well, I think that's what the Escobedo case indicates.

In other words, I'm -- of course my opinion is biased in a -- I am -- if it is not something like that, then it's an absolute right to counsel.

I don't think there can be any in-between unless some other theory.

Under the way I read the decisions of this Court that its -- if it is an absolute right to counsel, the same sort of right to counsel that attaches --

Justice Abe Fortas: Well, we're not talking about right to counsel now.

We're talking about the warning.

When is the warning necessary?

And as I understand you, you say that if the warning is necessary, that should be held to be constitutionally necessary in the absence of counsel, then the warning has to be given at a meaningful time.

Mr. Gary K. Nelson: I would think so, certainly.

Justice Abe Fortas: And then I proceeded to ask you to give us some benefit of your views as to whether a warning was necessary and as I understand it, you say that you have to look at the circumstances --

Mr. Gary K. Nelson: Yes.

Justice Abe Fortas: -- of each case?

Mr. Gary K. Nelson: I would say, not absolutely.

Justice Abe Fortas: And now I'm asking you -- and then I asked you what are the circumstances of each case?

What are the relevant circumstances to look for in a particular case?

And how about this particular case, is the psychiatric report to which you referred, Psychiatric Report No. 2, a material variance with the one that -- to which you're --

Mr. Gary K. Nelson: I don't think so.

Justice Abe Fortas: -- adversary referred --

Mr. Gary K. Nelson: I'm not a psychiatrist, so I can't say.

I don't -- I think both reports say in the effect that the man has an emotional illness that should be treated, that he knew what was going on, both the reports say his mental faculties, whatever they were, were sharp, acute, he had no psychotic disorders.

I think, they're both -- they both say basically the same thing.

I think the diagnosis in the other report was a “sociopathic personality.”

Justice Abe Fortas: So that if the Betts against Brady test were applied in the way that this Court did apply it to -- prior to Gideon, I suppose it's quite arguable that Miranda, the petitioner here, was entitled to a warning.

Would you agree to that?

Mr. Gary K. Nelson: Oh, it's arguable.

I have extensively argued the facts that he wasn't of such a nature, as an individual because of his mental condition or his educational background, as to require any more than he got.

He got every -- in other words, I'm saying that he got every warning except the right -- the warning, the specific warning of the right to counsel.

He didn't have counsel.

Counsel wasn't specifically denied to him, on the basis of a request to retain counsel.

The only possible thing that happened to Mr. Miranda that -- in my light, assuming that he had the capability of understanding at all, is the fact that he did not get the specific warning of his right to counsel.

Justice Abe Fortas: But even if we assume that he got all the other warnings, and putting aside the question of the right to counsel, assuming that the record does show that he got these warnings, its still -- is there any evidence?

I have to ask you again, does the record show that he got it at what you would call a meaningful time?

Mr. Gary K. Nelson: Yes.

I think the police officers -- they were never pinned down as to when -- in other words, whether at 11:30 when they went into Interrogation Room 2, they immediately warned him.

This was never pinned down by either side.

But they did say that he was warned.

And then they went to elaborate that he was warned specifically, as I believe, as my recollection serves me correctly, in (Inaudible) -- in response to a specific question concerning the statement, they said he was -- the part of the statement was read to him again.

Now, I believe that the Court could find from the record that he was warned at 11:30.

If the warning is required in this particular case to protect his rights and its found, as a matter of fact, which the court below did not find, that it was not given until the written statement, and I would suppose that it wasn't given at the proper time.

Justice Abe Fortas: Mr. Nelson, I certainly want your views and only your views, and I don't want to state anything unfairly, but I want to -- am I correct in inferring from what you have just said in answer to my questions, that the State of Arizona does agree that there are occasions when the United States Constitution requires that a warning as to the right to remain silent must be given --

Mr. Gary K. Nelson: Your Honor, I --

Justice Abe Fortas: -- to a defend -- to a person who is in custody and it must be given at a meaningful time?

Do I correctly state the position that you're presenting to us here?

Mr. Gary K. Nelson: Not completely.

I don't think that the Arizona Supreme Court has worded its holdings, and I cite the course -- court, the case that followed Miranda and referred back to it concerning the point to waiver and they go on to expand on their thinking.

I don't believe the Arizona Court has specifically said that warnings as such are of a constitutional dimension.

The court has said that in some cases warnings may be required in a given case.

And in fact, in the Goff case, which I cite as the next case in the Arizona Court's determination, they say it's important that the -- that all steps be taken at the earliest possible time when they are indicated by the fact situation to ensure that the state doesn't overreach and that the man is given every benefit of his rights under the Constitution.

But I don't believe they have yet said as a constitutional dimension any specific warning at any specific situation needs be given.

Its my argument concerning the factors surrounding Escobedo that if Escobedo is a completely distinct and separate determination of a Sixth Amendment right, as divorced from the Fifth Amendment right, which I think is pretty hard to do, then in order for it to be meaningful and effective, not just to the defendants but to the people of the state, of the country, it's got to announce a rule which forbids affirmative conduct on the basis of police officers or prosecutors calculated in a given situation to deny the man the implementation of his right, whether it be the right to counsel or the right against compulsory self-incrimination.

As I understand it, there is no right not to incriminate himself, the right is for him not to be compelled, whether it's subtle compulsion or direct, but it is still a right not to be compelled to incriminate himself.

At least this is my understanding and he doesn't have a right not to self -- not to incriminate himself.

He has a right not to be compelled to incriminate himself by some means, either direct or devious.

Now, I think if the extreme position is adopted that says he has to either have counsel at this stage, or intelligently waive counsel, that a serious problem in the enforcement of our criminal law will occur.

First of all, let us make one thing certain.

We need no empirical data as to one factor, what counsel will do if he is actually introduced.

I am talking now about counsel for defendant.

There -- at least among lawyers, there can be no doubt as to what counsel for the defendant is to do.

He is to represent him 100%, win, lose, or draw, guilty or innocent.

That's our system.

Now, when counsel is introduced at interrogation, interrogation ceases immediately.

Justice Abe Fortas: Why?

Mr. Gary K. Nelson: Well, for one reason -- first of all, let's assume and on -- and there are several different situations, but assuming counsel is immediately introduced and he knows nothing about the case.

He has not talked to his defendant that he's appointed, let's say.

He was appointed to an indigent, an indigent defendant who says, “I want a lawyer.

I need a lawyer right now.

I don't want to talk to you without a lawyer.”

He's given a lawyer.

He talks to the defendant.

Now, first of all he stops the interrogation telling -- talk to them.

I would think he -- if he is going to represent him, he cannot allow him to say anything until he finds out what his story is, what he is going to stay -- is going to -- how it is going to affect him.

So the interrogation immediately would stop for that purpose.

And after he has had an opportunity to confer with his client, let's assume another thing.

Let's just assume his client said, “Yes, I did it.

I am guilty.”

Had all the requisite intents, he makes a statement to his lawyer in confidence that he did it, and asks his lawyer what (Inaudible) -- what he should do.

Well, the lawyer maybe doesn't know his past history.

Maybe the lawyer would want to find out what the police have, if he can.

And so maybe more time would -- in order to properly represent him, would be taken up here, time which there would be no interrogation.

But let's further assume that he advised his client, “Well, I think you ought to confess.

I think there's a possibility for a light sentence.

You did it.

They have other evidence or maybe they don't have any other evidence.

Let's say they don't have any other evidence and you can confess.”

And the fellow says, “Well, I don't want to confess.

I don't want to go to the gas chamber if I don't have to.

Is it -- is there anything else that you, as my lawyer, can do for me?”

Well, what has he got to tell him?

That I -- under our system, he's got to tell him, “Yes, you don't have to say anything.

There's been -- and the fact that you don't say anything can't in any way hurt you, be inferred otherwise, and we can put the state to its burden of proof.”

And --

Justice Hugo L. Black: Why does our system compel his lawyer to do that?

Mr. Gary K. Nelson: Well, as I understand --

Justice Hugo L. Black: (Inaudible) he was compelled by our system to do this.

Mr. Gary K. Nelson: Yes, I'm sure, I -- it's my understanding that he is.

Justice Hugo L. Black: But why does he do it?

Who's -- for what purpose?

What's the object to that going to the part of the lawyer?

Mr. Gary K. Nelson: Because we believe that it's right and proper that the criminal defendant not be deprived of his life, liberty, or property, without due process of law.

Justice Hugo L. Black: And something about giving testimony against himself.

Mr. Gary K. Nelson: Right.

This is -- but I mean in -- this is just one issue wherein the lawyer has to guard all these rights.

But I'm saying the practical effect of introducing counsel at the interrogation stage is going to stop the interrogation for any and all purposes, except what counsel decides will be in the best interest of his defendant.

Justice Hugo L. Black: Isn't that about (Voice Overlap) --

Mr. Gary K. Nelson: Otherwise, counsel will not be doing his job.

Justice Hugo L. Black: Isn't that about the same thing as a practical effect and object of the Amendment which says he shall not be compelled to give evidence against himself?

Is there any difference between the objects there and purposes of the two?

What the lawyer tells him and what the Fifth Amendment (Voice Overlap) --

Mr. Gary K. Nelson: Well, certainly that's the object of what his lawyer is telling him.

Justice Hugo L. Black: Well, isn't that the object of the Amendment?

Mr. Gary K. Nelson: It -- well, that is the question, whether it's -- of course his -- the Fifth Amendment, he has the right never to be compelled to incriminate himself at whatever stage.

And this is of course, involving a knowledgeable implementation of that right at this time, if he wants to.

What I am saying is that the state does not have to at this stage, insist on that right being enforced or waived because even -- it'd be -- pre-trial police interrogation does more than just develop confessions or incriminate -- it in -- it develops incriminating statements.

It develops exculpatory statements which pin a story down to a defendant very closely after the crime has been committed or very closely as after he's been taken in police custody which prevent -- or effectively make it unprofitable for him to perjure himself or change his testimony at the trial should he take the stand.

Justice Hugo L. Black: Is there anything fantastic in the idea that the Fifth Amend -- that the protection against being compelled to testify against oneself might be read reasonably as meaning there should be no pre-trial proceedings when he was there in the possession of the state?

Mr. Gary K. Nelson: Of course I don't -- I don't -- to me, I think there is.

I think there is a valid interest --

Justice Hugo L. Black: Was a valid interest, of course, if they can convict him and more -- let's say, de didn't try to (Inaudible) try to convict him.

Mr. Gary K. Nelson: Right.

But I think that -- well, and this is another argument that I think must be made.

Our adversary system as such is not completely adversary even at the trial stage in a criminal prosecution because Canon Five of the Canons of Ethics of the American Bar Association which are law in Arizona by rule of court says that the duty of the prosecution is not simply to go out and convict but is to see that justice is done.

I know, I've talked to many prosecutors myself in my short time, I've gotten as much satisfaction out of the cases when I -- which I was compelled to confess error in a case where a man has been deprived of his rights by due process that I've gotten satisfaction in being upheld in a tight case in a court.

Justice Abe Fortas: You give a -- you give defendants access to the state's evidence against him in your state?

Mr. Gary K. Nelson: Mr. Flynn would tell you more about that at the trial level.

I don't believe that the rule has been interpreted very broadly.

I think it has been interpreted narrowly.

I think he can get his own statements and perhaps he can get the police officers' reports.

There is a rule providing for motions, but the judges, as I understand it, have construed --

Justice Abe Fortas: So that --

Mr. Gary K. Nelson: -- fairly narrowly.

Justice Abe Fortas: So that it is possible to speculate, isn't it, that the state has limitations, places limitations upon its obligation to cooperate with the defendant, as witness, the denial of discovery to the defendant, discovery of the evidence that the state has against him?

Mr. Gary K. Nelson: Yes.

Of course I -- I'm sure the prosecutors would go a 100% go along with the full discovery for both sides but --

Justice Hugo L. Black: With what?

Justice Abe Fortas: What?

Mr. Gary K. Nelson: With full -- with full discovery for both sides but this is --

Justice Abe Fortas: Maybe the prosecutors that you know.

Mr. Gary K. Nelson: But, this would do (Inaudible) -- the defendant of course is compelled to no discovery, no ordinary discovery procedures in the scope we think of them in a civil case.

So, I just say this, that they are -- I'm not sure the analogy is completely --

Justice Abe Fortas: I only acknowledged, the point I was calling your attention is it -- there are in our system, there are limitations upon the degree of cooperativeness on both sides.

It's not just that the arrested person has under the Constitution, a privilege against self-incrimination, it is also that the state, when it assumes an adversary position even before that time, takes advantage of certain reticences, shall I say with --

Mr. Gary K. Nelson: Yes.

Justice Abe Fortas: -- respect to disclosure --

Mr. Gary K. Nelson: Yes.

Justice Abe Fortas: -- to the accused (Voice Overlap) --

Mr. Gary K. Nelson: Surely, it does.

But there is no compulsion.

In fact, the compulsion is to the contrary on the defense side to cooperate, whereas the -- there is complete compulsion at least by my interpretation of the law for the prosecutor to do as much, if it's available to him, to show that the defendant's innocent or prove he's guilty.

Justice Abe Fortas: Well, I think we have established in this colloquy that it --

Mr. Gary K. Nelson: It doesn't always work that --

Justice Abe Fortas: -- say complete is a little bit of an overstatement.

Mr. Gary K. Nelson: It doesn't always work that way.

I'm sure that's the case.

But this -- here again is another point that I emphasize, this is no reason, I don't think for a constitutional rule which would in effect take care of what I consider to be the exceptions to the rule rather than the general practice.

I might just say, since I notice that my time is about up, counsel made a statement to the effect, in answer to a question of one of the Justice -- I forget which one, something about that -- why Miranda talked that, “Maybe he was raised to tell the truth through our society, you are raised to tell the truth and respect authority.”

This brings another thing into play, I believe, which is vitally important, and the prosecutors in my state consider it so.

That if in fact, you either have counsel or you don't, and it thereby seriously circumscribes interrogation and confession, you eliminate an early part of one of the most important principles, hopefully, in our criminal law.

And that is not just to convict, not just to deter, not just to put somebody away, but to rehabilitate and at the earliest possible moment.

And I don't have that many personal experiences, so (Inaudible) -- we had a meeting with the prosecutors in our state and many of the cases involving confessions in pre-trial interrogation where the cases were -- whether a man has at least admitted he has done something wrong or cases where the defendants were much more susceptible to rehabilitation at this stage.

If you foreclose this, then you develop an attitude in the police officers, you take the personal attitude away.

Many a hardened police officer, who needs -- developed a case of tremendous circumstantial evidence against a man, and yet the man sits there and keeps telling him “I didn't do it,” he is going to wonder.

There's a personal factor there.

He is going to wonder, “Why doesn't this man confess?

Why doesn't he say something about doing it?”

Even assuming now arguendo that it's not coercion that we've -- I have no argument that whatever is considered coercion, whether it's subtle or otherwise, should not be used.

But assuming the interrogation is good, except for that, he is going to wonder, and maybe he is going to go out and examine that eyewitness who saw him at 2 o'clock in the morning under a dark street light and examine this other evidence because he wonders that personal element, he ought to confess.

Here is all the evidence.

It's a prima facie case.

This is wiped out completely if you terribly circumscribed this particular pre-trial invest -- this (Inaudible) -- personal element is out, and he can say, “Well, I got the evidence.

Maybe he's guilty, maybe he's not.

I didn't talk to him.

I don't know how he acts or to be -- how he turns up.”

And I think its defendants could be heard as much as the -- as the prosecution.

Chief Justice Earl Warren: General Taylor.

Argument of Telford Taylor

Mr. Telford Taylor: Mr. Chief Justice, Members of the Court.

The State of New York is appearing not only in the present case, Miranda case, but in the ensuing four cases that have been scheduled for consecutive arguments in which these problems of the right to the assistance of counsel are raised.

I think the state has appeared here as amicus on numerous previous occasions when there has been a constitutional question in the general field of criminal procedure.

The nature of our interest is stated in the opening pages of the brief and I do not believe that I need to elaborate that orally.

Excuse me -- I should add, the brief that has been circulated to the other states and has been joined by something over half -- I think about 27 other states, as well as Puerto Rico and Virgin Islands.

Now, I will try to say what I have to say in less than the allotted time.

And my task, its brevity is the easier because of some things I might otherwise say, I think will be said much better by others.

And I also try to say a few things that, as I read the briefs, no one else is going to say or at least say in the same manner.

The factor common to all five of these cases is that a confession as received in evidence which was taken when counsel were not present and when there had been no waiver of counsel.

And therefore a contention that runs commonly through all five of them, that is the one that emerged I think most clearly and that's Mr. Justice Black's question as to whether this is a matter of constitutional dimension under the Fifth Amendment, or for that matter the Sixth, or the Due Process Clause.

Justice Hugo L. Black: Can I ask you --

Mr. Telford Taylor: And they firmly state --

Justice Hugo L. Black: May I ask you if this --

Mr. Telford Taylor: Pardon?

Justice Hugo L. Black: You said “one thing common.” Is there another thing common as to where they were when the confessions were made?

Mr. Telford Taylor: Well, the case is -- well, they're all in detention, that's also --

Justice Hugo L. Black: All what?

Mr. Telford Taylor: All in the -- in a state of detention, yes sir.

Otherwise than that, there is quite a spectrum of circumstances that these cases reveal.

The -- of the surrounding circumstances are not uniform.

Now, may I just state what the thrust of our position is very briefly before indicating likewise its limits and why we are taking this position?

Our contention is that insofar as these cases present a constitutional claim that a valid confession cannot be taken unless counsel is present or has been waived, that that claim in constitutional terms in the constitutional dimension is not sound.

In other words, Justice Black's question we would answer in the negative.

The Fifth Amendment cannot be, should not be read as requiring counsel to be present at the time the confession is taken.

I will come to my reasons for that very presently.

Our secondary position is that if the court should decide to enunciate a rule of that sort in constitutional terms or other new rules pertaining to the validity of pre-arraignment confessions, those should not be applied retroactively but should be prospective only.

Now, before speaking in support of those two positions and I intend to spend most of my time on the first one, may I make clear the limits of our position here and what we are not saying, because I think this is of almost equal importance.

We are not taking any position for either affirmance or reversal of any of these five cases.

That is because all five of them, as we see it, involve problems or possible problems that go beyond the limits of our contention here.

In the Miranda case, its just been argued, there is obvious to this -- division of opinion about the characteristics of the defendant, about whether the warning that Mr. Justice Fortas' questions were directed to, was given at a meaningful stage, what the significance of that warning is in legal terms.

The other five cases involve questions of trial procedure in which we are not presently interested.

They also, two of them involved a long period of detention from which counsel are making arguments derived from the McNabb-Mallory principles.

We are not taking a position on those matters and therefore we could not say that in any one of these five cases we are supporting an affirmance or reversal.

Secondly, may I make quite clear that we are not saying that new rules about requiring counsel to be present when an inter -- whether an investigation is taken, interrogation is made or a confession taken, we are not saying that such rules are necessarily unwise, without merit.We say that these are not matters of constitutional dimension.

But we do not say that they might not be very wise rules to adopt.

In fact, we are saying that this whole problem of the assistance of counsel at the pre-arraignment stage can we think be more appropriately and perhaps better dealt with in the legislative dimension and in the area of judicial policy rather than on purely constitutional terms.

Now, of course, insofar as we say there's no constitutional basis here, our position cuts against the defendants.

But as I repeat, we are not taking a position against such rules found in other ways, through legislative means, through judicial policy, or otherwise.

Now, may it please the Court, the inclusion of these five cases, one federal case, the Westover case, Number 761, I think underlines this distinction that I have been endeavoring to state, and it also discloses the one respect in which I think our position departs from that which taken by the Solicitor General.

As a federal case, this being a confession taken by federal agents introduced in evidence in a federal prosecution, I would suppose that the Westover case is susceptible of disposition in non-constitutional terms under this Court's federal supervisory jurisdiction, as enunciated in the McNabb-Mallory cases and that general line of authority.

As I read the Solicitor General's brief, however, he is saying not only that the Constitution does not raise a requirement of the presence of counsel, but is also saying that such a rule should not be laid down by this Court as a matter of judicial policy in the way it was done in McNabb and Mallory.

Our position does not extend to that second step.

We do not take any position one way or the other on it.

I think it entirely appropriate to say though that that would be a dimension in which we would consider this Court might very appropriately deal with the matter.

One further thing on --

Justice Abe Fortas: Can we do this with respect -- I beg your pardon, can we do that with respect to the states?

Mr. Telford Taylor: No, I -- no, Mr. Justice Fortas.

I was pointing out that the Westover case brings that --

Justice Abe Fortas: I understand that.

Mr. Telford Taylor: It's only in the Westover case that you can do that.

Justice Abe Fortas: I understand that.

So what you're saying is that we might lay down such a rule, some way, somehow, short of a constitutional basis --

Mr. Telford Taylor: Quite right.

Justice Abe Fortas: -- for the federal courts and leave the states alone.

It's what it comes down to.

Mr. Telford Taylor: Well, that's correct.

The states are, of course, affected only by the constitutional dimension.

The federal courts are subject to a broader range of review.

I might add that in New York our own Court of Appeals has noted and acted upon this very distinction between decisions in the constitutional dimensions and considered -- and decisions in the domain of judicial policy.

Justice Abe Fortas: What's the difference between this problem, in those terms and the problem that this Court handled in Gideon, problem of the right to counsel?

Mr. Telford Taylor: Well, if Your Honor is asking whether -- what the reasons for drawing the distinction between the trial stage and the pre-trial stage may be --

Justice Abe Fortas: In -- yes, in the terms of what you are discussing.

In other words, would New York State have taken the position that Gideon was wrongly decided?

Mr. Telford Taylor: Wrongly decided?

No.

And indeed, in New York State, this would be treated now as a matter of constitutional requirement.

There's no question about that in my mind.

But in the (Voice Overlap) --

Justice Abe Fortas: (Inaudible)

Mr. Telford Taylor: In the dimension we're talking about, that is the pre-arraignment right to counsel.

New York State held, prior to Escobedo, Mr. Justice Fortas, that whereas in Escobedo, there was an inference by the police authorities with the access of counsel to his client.

That this was in the constitutional dimension, a violation of the defendant's rights.

This case is cited with approval in the Escobedo decision.

Just last year, it went further than that, the Court of Appeals and held that if there is a telephone call from counsel to the police authorities asking that there'd be no more questioning of the client, that any questioning that takes place after that cannot result in admissible admissions or confessions.

But when the further question was raised in a case where counsel arrived at the station while a confession was being taken, the state made the contention that that part of the confession that took place before counsel arrived could be admitted and not the latter part.

Justice Abe Fortas: General, I don't want to take --

Mr. Telford Taylor: The court --

Justice Abe Fortas: -- any more of your time.

I just want to say that I think the problem is whether it's not too late in the day to make that kind of a distinction.

I'm asking the question, that is to say that once this Court has made the rulings that it has made in Gideon and Escobedo, I wonder if it's still much availed to argue that we ought to draw the kind of line that you're suggesting here?

Mr. Telford Taylor: Well, that brings me back to Mr. Justice Black's question and its relation to the ones you have been putting, Mr. Justice Fortas.

And that is whether there is anything in the Constitution, either in the Sixth Amendment Assistance of Counsel Clause, or in the Due Process Clause, or in the protection against self-incrimination, whether any of those clauses together or conjointly should be read as requiring counsel in the pre-arraignment stage.

Now it seems to me that if one is going to approach that question, one must enunciate a constitutional theory.

Are we looking to history and original meaning of the Constitution or are we looking to contemporary standards?

Is the Constitution to be treated as fluid with different and perhaps more rigorous meanings obtained by common consent at a later time, or are we to look to the original understandings, it has been called?

Now, I suggest, with all respect, Mr. Justice Fortas, that in those terms it's very difficult to support the contentions being made here and the situation is quite different from Gideon, quite different.

I forget the exact number of states that already were furnishing counsel in all criminal trials at the time of Gideon, but my recollection is that there wasn't more than a handful that weren't already doing this as a matter of state practice.

Therefore, one had a very broad practice and consensus in the states on this very point.

The same thing, if I may say so, was true in the Mapp case, to a lesser extent.

In Mapp, you had about half the states that were applying the exclusionary rule and the trend was solidly in that direction.

California had changed its view between Wolf and Mapp so that in both of these situations you had a solid basis in practical experience in the states and really, your decision was not revolutionary in those terms.

But, in the dimension that we're now talking about, I don't know of a single state that presently excludes confessions that are taken pre-arraignment in the absence of counsel.I don't think there is such a jurisdiction.

Chief Justice Earl Warren: But I -- doesn't -- isn't it a fact that most of the states have a regulation that the prisoner shall be taken forthwith to a -- before a magistrate and there advised of his rights and so forth?

And doesn't practically every state in the Union have clause preventing people from being compelled to testify against themselves?

Mr. Telford Taylor: Indeed that is so, Mr. Chief Justice, yes.

Chief Justice Earl Warren: And thus -- so in that respect we're not much different to the Gideon, are we?

Mr. Telford Taylor: Well --

Chief Justice Earl Warren: They weren't -- there're just an awful lot of states that weren't giving counsel up to the time of Gideon.

They had a rule on it, maybe, but they weren't according counsel to them?

Mr. Telford Taylor: My understanding is that at the time of Gideon, all but a very few states were indeed according full right of counsel at the trial stage which is what Gideon relate it to.

And what I am saying is that we have no such basis in precedent and established practice when we are coming to the pre-arraignment stage nor do we have --

Chief Justice Earl Warren: (Voice Overlap) constitutional doctrine.

That's something that indicates wisdom.

But that's not the same thing as saying that that is -- that that's not addressed to the question on the historical interpretation in the Constitution.

Mr. Telford Taylor: No, indeed.

On the basis of historical interpretation, I think one would be hard-put to it to find any basis for finding the right to counsel at the pre-arraignment stage much less the right to be furnished counsel if you are indigent.

And therefore it seems to me the stronger arguments for the claim advanced here is not the historical basis, but the common consensus basis.

And it is on that basis that I was suggesting, Mr. Justice Fortas, that we -- we don't have the Gideon situation here at all.

This Court is being asked to enunciate a rule for which there is no basis in the prevalent practice.

Justice Abe Fortas: (Inaudible) Gideon there was no claim made that there was -- the result it achieved -- arrived at in Gideon was based on an historical interpretation of the Constitution.

It was based upon a reinterpretation of the general constitutional guarantees.

Mr. Telford Taylor: And for that reinterpretation, there was abundant support in what one could see around one.

Justice Abe Fortas: Yes.

Mr. Telford Taylor: And a commonly accepted view that this was a very desirable thing.

We don't have that here.

Thank you, Mr. Chief Justice.

Chief Justice Earl Warren: General, you have -- you haven't gotten to your second point, and there are only two or three minutes until closing time.

Would you mind addressing yourself to that on the question of retroactivity?

Mr. Telford Taylor: On retroactivity?

Well actually, Mr. Chief Justice, that point flows, I would think as a matter of logic, from our first proposition if that be accepted.

If as we see it, this is not a constitutional claim based on an original understanding, if this is a matter that will be evolved from contemporary practice and changing standards, why then, it seems to me that to apply such a rule retroactively presents considerable conceptual difficulties.

And I find no conceptual difficulty in a prospective application.

The court has confronted this now twice in Linkletter and Tehan.

We have set out in our brief the reasons why it seems to us the considerations the court went on there are applicable here.

I might say also, that if we are to hope for legislative progress and for action within the states by their own courts, why a principle of retroactivity may be a damper on change and improvement rather than a stimulus to it.

This would tend to freeze things and make people reluctant to develop new practices if everything else has to be unwound going all the way back to the beginning to make the new practice prevail.

Chief Justice Earl Warren: Very well.

We'll adjourn.

Print this transcript Transcript: 

Argument of Duane R. Nedrud

Chief Justice Earl Warren: Ernesto A. Miranda, Petitioner, versus Arizona.

Mr. Nedrud.

Mr. Duane R. Nedrud: Mr. Chief Justice, may it please the Court.

My name is Duane Nedrud, I'm counsel for the amicus, National District Attorneys Association.

My co-counsel is Ms. Oberto.

I thought that her presence might show that prosecuting attorneys are not all bad or she wouldn't be working for us in the full time basis.

I may use some words of one of the justices of this Supreme Court.

The Escobedo decision and the Dorado interpretation makes it more necessary than ever that we stop and look where we are going.

If we are talking about equality between the rich and the poor, we are thriving for a worthy objective.

If we are talking about equality between the policeman and the criminal, we are on dangerous ground.

I would remind this Court that we are not talking about the police versus the defendant.

We are talking about the people versus the defendant in any -- in the same way that we would not talk about the Army or the Marine Corps versus the Vietcong but we would talk about the United States versus the Vietcong.

I have not mentioned in my brief anything about the Fifth or the Sixth Amendment.

I concede that this Court can interpret those Amendments in the way that it sees fit.

I am willing to agree with the ACLU in their brief in one point where they quote me although they do misquote me when they refer to Malloy and Haynes in substitution for -- on page 26 of their brief instead of Hailey and Payne whom I consider entirely different that in the admonishment in the Dorado interpretation will not affect materially confessions.

If this is to be our objective to limit the use of the confession in criminal cases then you are taking from the police the most important piece of evidence in every case that they bring before our court of justice.

Police officers are public servants.

They are not attempting to put innocent people to jail.

They want to follow the dictates of this Court and they will follow them to the best of their ability but they too are human beings.

They do have, however, an experience and knowledge which many of us lack because this is their job in investigation of crime.

And we have not, as lawyers, paid attention to their problems.

We have seldom bend on to the police station and asked what can we do to assist you in your problems.

We are more inclined.

And I talk about the prosecuting attorneys and I am not referring to this Court anymore than -- any other lawyer in the United States.

In the case, if I may use the present case of Miranda as an example, the defense admits that there is a voluntary confession.

He says that we should not allow this confession because he did not have counsel present because we would not have been able to convict him because there was no other evidence except his own voluntary statement that his male organ had penetrated a half an inch, otherwise he would have been acquitted.

Is this what we are looking for to acquit Miranda because he did not have counsel?

The amicus here as presented data covering thousands of man-hours on the part of the members attempting to show the widespread use of confessions.

I am not saying that the widespread use of confessions justifies their use.

I am just attempting to present to you through our members the importance of the confession in our criminal administration of justice.

I believe that there is something beyond that which we are discussing here.

I think that there is a need and I have mentioned this and I pray for it that all public servants, law enforcement officers and prosecuting attorneys, trial courts and members of this Court work together.

We are not adversaries.

There is a need I think on the part of the people to be able to refer to my policemen, my -- our police, my court and not those cops (Voice Overlap) --

Justice Abe Fortas: Do you think we ought to overrule Escobedo?

Mr. Duane R. Nedrud: Sir?

Justice Abe Fortas: Is it your position that we should overrule Escobedo?

Mr. Duane R. Nedrud: If I knew what Escobedo meant, I may say so but I do -- I have said in my brief Mr. Justice Fortas that I think that Escobedo should never have been appealed in the facts of the case.

I think that this Court rightly reversed the case on the facts.

Justice Abe Fortas: You're not urging that we overrule Escobedo.

Mr. Duane R. Nedrud: No sir.

It's the system -- our system of justice in effect which we need as a matter of change.

I do not attempt to say that defense counsel is wrong when they attempt to do the best they can for counsel.

This is our system of justice.

But I could tell you for example in the State of New York that when a defense counsel is picked by those who are in the profession of criminal -- of crime, if I can use this, that they wonder who is hot for example in winning cases now and they are picked almost like whether -- as if they were race horses because now they are winning.

There is nothing so fickle as a criminal defendant.

He wants only one thing, he wants to win.

Now, if a prosecuting attorney only wants to win then we should not have that prosecuting attorney in office.

We should make a change.

Chief Justice Earl Warren: May I ask you this, please, Mr. Nedrud.

If you agree on the facts that Escobedo should have been reversed, what would you say as to the man who did not have a lawyer but who said he wanted a lawyer before he talked.

Mr. Duane R. Nedrud: If he asked for a lawyer and he does not waive his right to counsel, I think that he should have a lawyer, I think that even the state should have -- I would go so far as to say I think the state should appoint him a lawyer if he asked for a lawyer.

I do not think however that we should in effect encourage him to have a lawyer.

Chief Justice Earl Warren: And why do you say we should not encourage him to have a lawyer?

Are lawyers a menace?

Mr. Duane R. Nedrud: Mr. Chief Justice, a lawyer must in our system of justice, must attempt to free the defendant.

This is his job.

Chief Justice Earl Warren: Because it's his professional duty to raise any defenses the man has.

Mr. Duane R. Nedrud: Yes sir.

Chief Justice Earl Warren: Do you think in doing that, he is a menace to our administration of justice.

Mr. Duane R. Nedrud: I think that he is not a menace at the trial level.

He is not a menace per se but he is in doing his duty is going to prevent a confession from being obtained.

Chief Justice Earl Warren: When does he cease being a menace?

Mr. Duane R. Nedrud: Mr. Chief Justice, I did not say he was a menace.

I --

Chief Justice Earl Warren: Well, you said he did -- he did if he inject himself into it before the trial level.

Mr. Duane R. Nedrud: I merely said that he in effect will prevent a confession from being obtained and if this is what we are looking for then we should appoint a counsel even before the arrest stage.

Because the moment that a murder takes place, the Government is out looking for the criminal.

Chief Justice Earl Warren: Well, if a lawyer as you say -- he's entitled to a lawyer under the facts of Escobedo and the lawyer is entitled to tell him that he doesn't want him to talk to the police, why would it be a menace for another lawyer whom the defendant didn't wanted to do the same thing?

Mr. Duane R. Nedrud: Mr. Chief Justice, I'm not disagreeing with you once -- one iota, I am just saying that if in effect that this is what should be done, if you want to equalize for example the defendant's right against the policeman, naturally he should have counsel if this is what we are striving for.

Chief Justice Earl Warren: Well, suppose we put it on the basis of not equalizing anything or balancing anything but on protecting the constitutional rights of a defendant not to be compelled to convict himself on his own testimony.

Mr. Duane R. Nedrud: Mr. Chief Justice, I of course do not interpret the Court to the constitution.

This is of course your prerogative sir.

Chief Justice Earl Warren: How do you interpret it?

Mr. Duane R. Nedrud: I do not interpret that the defendant is entitled to a lawyer until the trial starts.

Chief Justice Earl Warren: When does that -- until the trial starts?

Mr. Duane R. Nedrud: Yes sir.

Chief Justice Earl Warren: And where do you get that authority?

Mr. Duane R. Nedrud: As I read the constitution, you asked me my opinion, I said I have no authority to interpret the constitution.

I am saying that this is the way I read the constitution.

Chief Justice Earl Warren: Has that been the way this Court has read the constitution as days gone by?

Mr. Duane R. Nedrud: I believe so.

Justice William O. Douglas: Well counsel, we know -- everybody knows that if he's -- when a lawyer at the beginning of the trial that the lawyer can't possibly represent him, he needs time to prepare for a trial.

Mr. Duane R. Nedrud: Yes sir.

Justice William O. Douglas: So the appointment must be at some point anterior to the trial.

Mr. Duane R. Nedrud: Mr. Chief Douglas -- Chief -- Mr. Justice --

Justice William O. Douglas: Our question here is that what point?

How far anterior?

Mr. Duane R. Nedrud: Mr. Justice Douglas, I am not -- I am not concerned when the lawyers enter the stage and maybe part of their problem is that the prosecuting attorney enters before he should.

Justice William O. Douglas: And we -- and under the procedures in some states as you well know very important rights can be lost prior with the -- many days, many weeks prior to the trial.

Mr. Duane R. Nedrud: Mr. Justice Douglas --

Justice William O. Douglas: So, don't we -- we come down to the question as to dealing with the constitution that concededly, I would think we'd say concededly, everyone is entitled to a lawyer at the trial and also at some point anterior to the trial.

Mr. Duane R. Nedrud: The question comes I think Mr. Justice Douglas whether or not we are gong to allow the trial court to determine the guilt or innocence or the defense counsel.

If the defense counsel comes in at the arrest stage, he will as he should prevent the pros -- or prevent the defendant from confessing to his crime and you will have your convictions.

If this is what is wanted, this is what will occur.

Justice Hugo L. Black: I guess there's no doubt is it --

Unknown Speaker: (Inaudible)

Justice Hugo L. Black: I guess there's no doubt is it that the provision which provides for the protection against giving compelled testimony as a consequence, fewer convictions.

Mr. Duane R. Nedrud: Mr. Justice Black, this is true.

However, again, I do not -- I am -- we're talking about the voluntary-involuntary rule and I have not questioned this whatsoever.

This is a -- I believe a good rule.

I have said that Mapp versus Ohio is a good rule.

I believe however that there is a point of diminishing returns and at ones -- at some stage the police must be in a position to protect us.

Justice Hugo L. Black: Some stage according to our opinion, he is entitled to a lawyer at some stage and we've said as I recall it, haven't we, that that's at the stage when he needs it.

Mr. Duane R. Nedrud: Well, again --

Justice Hugo L. Black: At least the appellee has been detained.

What about the point to where a man is seized by government agents and they are, as you say, they are our agents.

Mr. Duane R. Nedrud: Yes sir.

Justice Hugo L. Black: They are our officers and there's no antagonism between this.

But what about the fact that when they are seized by someone who has power to detain them, keep them away from his friend and their relatives and in seclusion of his desire, can you think of any time when he had need a lawyer more than that at the point of detention?

Mr. Duane R. Nedrud: Mr. Justice Black, again, the question is, are we interested in convicting the defendant or are we interested in protecting or acquitting him?

This is the point that -- the only point that I can in effect make.

If you say that this defendant needs counsel at this time, for example, let me if I may use this illustration.

I worked when I was a professor of law which I was prior to taking this position.

I worked on the defense project for the American Bar Association and in the questionnaire, there was a statement, when is the ideal time for a counsel to be appointed for the defendant?

The question is, when is the ideal time for whom the people or the defendant.

Now, if it is for the defendant then it is the earliest possible opportunity.

If it is for the people, it should not be until a critical stage if it is White versus Maryland, I agree it should be at the preliminary hearing stage.

If it is in the question of arraignment as in Alabama, I agree.

If it is a -- at the trial stage and he has lost none of his rights as -- which can be interpreted in one way or another then I say that it should be at the trial stage.

Justice Hugo L. Black: Well, as a prosecutor, I found out over many years the very critical stage when a person taken to a police headquarters, nothing wrong with that, that's part of our Government.

Taken to a police headquarters under arrest or under detention, he can't leave unless he wants to -- unless they will let him.

Would you call that voluntary for him then to -- for them to have him there in that situation and probe him about his public conviction of a crime?

Would you think of that as voluntary?

Mr. Duane R. Nedrud: Being voluntary in the police station?

No.

Justice John M. Harlan: I suppose you'd to say, wouldn't you?

It's a question of fact for somebody to decide --

Mr. Duane R. Nedrud: Well, I would --

Justice John M. Harlan: -- context of the different circumstances that have risen.

Chief Justice Earl Warren: Answer, you may.

Mr. Duane R. Nedrud: I would hope Mr. Justice Harlan that this Court has protected as I referred to in my directs and the page by an involuntary rule the totality of circumstances and I hope that this Court will also continue to invoke this rule but not go so far as to prevent the police from protecting us.

Print this transcript Transcript: 

Argument of F. Conger Fawcett

Chief Justice Earl Warren: Number 761, Carl Calvin Westover, Petitioner, versus the United States.

Mr. Fawcett.

Mr. F. Conger Fawcett: Mr. Chief Justice, may it please the Court.

Before I begin my argument, I should like to call the Court's attention to a disparity in the record of this case as disclosed by their respective briefs.

In as much as I have no opportunity to discover this disparity until I received the Solicitor General's brief this weekend after I arrived in Washington.

This is the first opportunity I've had to do so.

And I do, do so unless the Court think that simply because I took this case on court appointment, I have somehow been negligent either in carrying out my obligation to my appointed client or in presenting to this Court, to the best of my abilities, the true and full facts as I knew them.

The discrepancy occurs in that while my knowledge of the case here and below has been predicated upon the official record.

Certified first to the Court of Appeals and then here, the Solicitor General's brief makes suitable use of additional materials not a part of the official record on appeal, never made available to me until this past Saturday from the kindness of your clerk.

This is the material which the Solicitor General's brief refers to as “supplementary papers” in note one, page one of his brief.

Consisting of certain pretrial administrative papers and the exhibits in the trial court, suppose those exhibits which were and in one particular significant -- significant particular one which was not received into evidence of these materials as I learned on Saturday reported to this Court in late January of this year.

And I was much surprised by some of the information in them as I am by their sudden appearance at this time.

I agree and I'm knowledgeable as to the way of the Court and I don't know whether the Court should be considering it.

I do know however that in view of their 11th hour, 59th minute appearance, I am inevitably caught somewhat by surprise.

I will try to the best of my ability to integrate the new material into my argument here.

Necessarily that's not been integrated into my brief.

I would simply ask the Court to keep that in mind.

Excuse me, because of the shortness of time allotted for argument as well as presumably the Court's most particular interest, I will limit my oral argument to the confession issues involved in this case.

In this case, there are two, one, whether for lack of counsel's actual presence during the police in -- custody interrogation, petitioner's two confessions were properly admitted into evidence under Escobedo versus Illinois.

Two, because this is a federal case, whether without regard for Escobedo, petitioner's confessions were improperly admitted as a matter of federal criminal law under the standards of McNabb versus United States and more specifically Anderson versus United States.

The factual circumstances surrounding the confessions maybe briefly stated.

On the evening of March 20, 1963 at approximately 9:45, petitioner Carl Calvin Westover was arrested as he entered his parked car on a side street in Kansas City, Missouri.

The arrest was made by two officers of the Kansas City police.

The chief purpose for the arrest was the suspicion that the petitioner was involved in two local Kansas City store holdups.

Both petitioner and his car were searched, a certain packet of money was recovered, and his car was impounded.

He was taken to the Kansas City police station, he was at that point placed in a lineup, identified as to one of the local charges.

Thereafter, the police booked him “for investigation”.

At that point, he had denied all criminal activity.

The following morning however, the Kansas City police apparently according to hearsay testimony at his trial did obtained a confession on one of the local robbers shortly before noon.

At approximately 11:45 in the morning, the Kansas City police declared themselves through with the petitioner and the Kansas -- and the FBI Office in Kansas City was at that point permitted to interrogate him.

In something less than three hours, they returned from the interrogation room with two narrow conformed statements or confessions to the two federal robberies here concerned.

The confession although in the handwriting of one of the interrogators was signed by the petitioner.

Each of the confessions were cited that Westover had been advised, that he need not make a statement, that any statement he made might be used against him, and that he had the right -- had the right to consult an “attorney”.

Each also recited that “no threats or promises” had been made to induce his statement.

Each also recited that the statements were “voluntary”.

By the time these confessions were secured, Westover had been in custody for approximately 17 hours.

He had not been taken for arraignment or loosely arraignment more properly preliminary hearing before either a Kansas City Magistrate or a U.S. Commissioner.

The following day petitioner made certain changes in his statements, still in custody.

The federal involvement of Westover's detention had included, besides the confessions themselves, the following, one, a specific telephone request prior to the booking “for investigative check” from the FBI that “the subject to be held for them also for questioning”.

At this point, it would seem appropriate for me to clear out the principle discrepancy between my prior understanding of the case and with what the Solicitor General's supplementary papers now do disclose.

It was my understanding that the felony warrant from Sacramento, California to which the arresting officer referred and to which his arrest report preferred was a warrant on these two federal robberies.

The Government however states and in one of their supplemental papers indeed seems to show that the felony warrant Sacramento, California was a state, not a federal warrant.

My brief is of course in error, therefore in arguing that the clear federal interest was shown at the time of arrest.

However, those same papers which the Solicitor General has found, mdo clearly show that at least by the time of the booking, if not the arrest, the FBI was itself very interested in the petitioner for its own purposes.

They showed that the booking was, in fact, at least as much for the FBI as for the local matters or the California felony warrant.

As the arrest report which is prosecutions Exhibit 12 for identification shows, Westover was not booked on any specific charge.

As in Haynes versus Washington, it was a “small book” with a -- hold for investigation.

It then reads -- well, specifically it said investigation check-robbery.

But then, what goes on to list -- the two matters which were to be checked, then recites as follows, prior to the booking -- prior to booking the subject, information was received from FBI agent, Leon Dub that Westover was wanted by the FBI for questioning and also that Sacramento, California holds a felony warrant for the subject which will be forwarded to this department.

And concluding, it recites Carl Calvin Westover was booked for investigation to be held for the number one and number two station detective units, this department and for the FBI.

Curiously it appears to me in reading the Solicitor General's brief that there is quite a conscious attempt to convey that only -- the only outside interest -- the only FBI interest at the time of the arrest or booking was the felony warrant in California.

This may not be conscious.

I think it's certainly reads that way.

The facts however show quite the contrary that there was an independent federal request for detention for its own questioning.

The supplemental papers also showed that at least at the time of the booking, the federal authorities one, had a pretty fair ideas that petitioner was connected with the two Sacramento federal robberies enough to want to question him, and two, that they had by their request actively contributed if not to the arrest, to the booking and to Westover's subsequent detention for investigation.

The other matters of federal involvement are well-enough documented in my brief to warrant the passing reference here.

The joint federal state examination of the recovered currency, the joint federal state seizure of the top coat, the joint -- well, excuse me, the use of the state seized gun in procuring the federal confessions, and finally the transmittal of the state photographs or mugshots to Sacramento, California for use in the case.

But the basis of these facts we submit that under both Escobedo and/or Anderson versus United States, the confession is very legally admitted.

Notwithstanding these two different questions in this case, I cannot urge too strongly that both questions uncounseled interrogation have protracted detention or in my mind both, fundamentally vital to determination of the first issue, the Escobedo question.

Thus it would seem to me a big mistake for this Court to follow the lead afforded and offered by the Attorney -- by the Solicitor General and by the two governmental amicus briefs filed here which would seek to segregate these two items into two separate cellophane packages, one, police interrogation and as the second element quite apart, the period of lengthy detention.

As four of the five cases right now before this Court indicate protracted detention for interrogation appears a routine for this behavior.

It is precisely because of this detention that it seems to me the need for a safeguard such as presence to coun -- presence of counsel has had to be evolved by this Court.

As in Escobedo, it was to protect the incarcerated suspect from unwittingly or inadvisably relinquishing his constitutional privilege against self-incrimination.

The evil thought to be corrected by an Escobedo type philosophy is not the street corner confession, not the sole bearing spontaneous confession of guilt, not the “picture straight from confusion at arm” as the Government suggest on page 23 of its brief, nor indeed does it have to be and this perhaps is not here that has to be decided, it does not seemed to be the brief question and answer period during what the Government calls the completion of administrative formalities.

What Escobedo does do, it seems to me, is to strike at precisely the very same evil which for federal law, the McNabb-Anderson exclusionary rule sought to strike out over 20 years ago, the secret detention for purposes of eliciting a confession.

The second difficulty I find with the Solicitor General's approach is more serious, more crippling.

The Department of Justice would have this Court turn back the clock as though Escobedo and its precursors such as Spano, White and Massiah did not exist.

Thus the Government states as Mr. Earl has earlier alluded to, Escobedo was in fact nothing more than one more case of a coerced confession determined under a strictly traditional totality of the circumstances of given.In this light, the Government expresses some amazement that the present case was before your Court, says the Government repeatedly and at great length, there is “no showing” on this record that petitioners' confessions were the product of “coercion” or “overbearing” on the part of the interrogators viewed as a matter of the “totality of the circumstances”.

Of course we never argued that there was, but we did argue in our brief do argue now, is that the protracted detention combined with the police interrogation is itself inherently and unavoidably coercive.

In that sense then, Mr. Justice Black, as opposed to the two petitioners who have already appeared before you we do, yes, claimed the confession was coerced.

We believe that Escobedo went farther than coerced confessions.

We believe also it was not simply a question of the wrong to be righted but a step in providing a remedy for that wrong.

The fundamental philosophy of Escobedo seems to be the right against self-incrimination.

The fundamental force of Escobedo seems to be the understanding, the realization that the right to counsel is necessary to remedy that situation.

Under traditional views, we concede this particular case would presumably not have merited nor received, reviewed by this Court.

We submit however that under Escobedo, the Court is trying to establish something less ephemeral, less open to case by case statutes, than the special circumstances type role of a Betts versus Brady.

Finally on this point, I would suggest that the Solicitor General's entire approach to the problem in terms of police necessity versus individual rights is topsy-turvy backwards, has already discussed some of his alleged police needs “are entirely wide at the mark”.

They themselves draw men or possibly read Harris, Escobedo would it not -- would not in any case interfere.

Others are particularly irrelevant to the terms of this particular and not a typical case.

Thus his reference to one, the unwitnessed crime or the police officer forced to act "in the exigencies of the moment without opportunity for detached reflection".

Quite obviously, these are most thoroughly inapplicable here.

I submit there are (Inaudible) injured -- conjured up in order to frighten this Court back from what it has already held, has already held, and it is not completely interested in coerced confessions under traditional views.

In any event, however the approach is backwards, the Court has affirmed, in loud tones, that in weighing police aide and individual right, the balance has been struck in favor of the latter.

Thus, if the Solicitor General's approach of a case by case evaluation of the totality of the circumstances is correct and should be adopted with exceptions thereafter to be carved out, we submit the rule, the starting place, it should be the individual's constitutional rights versus self-incrimination as protected by the right to counsel.

With the police interference with those rights, the exceptions, being the matters which should be allowed in exceptional cases where on a totality of the circumstances a need in fact is shown to exist.

Certainly there was no such need here that the prosecuting attorney himself stated the confessions were simply the ‘frosting on the cake'.

As the Solicitor General's brief admits the other evidence was overwhelming.

There simply was no police need at all.

And I submit that Mr. Seagull's credential is notwithstanding, we would find that in many cases where confessions were used, there would be no need at all.

On the point of Anderson versus United States --

Justice Byron R. White: (Inaudible)

Mr. F. Conger Fawcett: I think I would have to.

It's a difficult point and I think it certainly should be briefed and argued before it was decided by the Court.

It's not presented here.

Justice Byron R. White: Is it relevant to cover it or not the -- the confession is necessary to the case, it may not be because the confession produced are the evidence.

Mr. F. Conger Fawcett: That's right.

I understand that.

Yes, it may.

It may.

There are no figures on any of it.

There are no figures as to how much -- how much need there is for a confession to secure its fruits when perhaps independent police work would've found the same evidence about it quickly.

Justice Byron R. White: (Inaudible)

Mr. F. Conger Fawcett: Sir?

May it --

Justice Byron R. White: (Inaudible)

Mr. F. Conger Fawcett: Yes sir, Mr. Justice White.

On the Anderson point, I would just like to make a very brief comment.

Even conceding that as I now discover the federal authorities had no part in the original arrest, they clearly had a large and a thoroughly well-documented part in the subsequent detention for investigation.

We submit the many pertinent facts and factors surrounding petitioner's arrest, detention, overwhelmingly bring the case within Anderson.

They also put the case squarely outside United States versus Coppola, 365 U.S. 762.

There it was found the federal authorities had “in no way caused or contributed to Coppola's detention”, Exhibit 12 for identification precludes such a finding here.

It was also found in Coppola that the interrogation by the FBI “did not contribute to any delay in arraignment” since he was initially interrogated by the federal authorities in the midnight hours.

Here, when the interrogation began at 11:45 in the morning, certainly no such finding can be made.

I submit that if the Court's sanctions were occurred in this case simply because the detention was nominally that of the state although not for any specific state charge, it will effectively have taken all (Inaudible) from the McNabb exclusionary rule.

It will encourage states to adopt broader and broader small book statutes.

It will openly invite federal authorities to find themselves sanctuary forbidden to them directly in requesting to state authorities that the subject be held for them also for questioning.

In our case, as a matter of federal law if not as a matter of constitutional law, the confession should have been excluded, the Commission should be overturned.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Marshall

Mr. Marshall: May it please the Court, I will have to check on when the page proofs were mailed to Mr. Fawcett and I will be able to report that after lunch, I will have that checked.

I think in the first place, we have to get a few things cleared up on the factual basis of this case.

There is not one word in this record at any place that there was any cooperation at all between the state and the FBI other than one that they did notify and they wanted to talk to Westover and on 11:45 the following morning, they told him they like to talk to him and they didn't until 12:00.

These 17 hours is also very interesting.

He was arrested at 9:45, tried to the Kansas City Police Headquarters after questioning on the street and searched.

And that sometime thereafter, he was put in a lineup and identified.

And at 11:45, he was booked.

And petitioner himself said booked him to the jail.

We are unable to find in the record whether he was booked at the police headquarters or the jail.

It's kind of confused.

But I have checked and while it does not appear in the record, the jail is directly across the street from the police headquarters.

But this interrogation for 17 hours is not in the record.

The record shows he was questioned for a portion of the time between 9:45 and 11:45 at night.

He was questioned sometime the next morning but the only pinpoint on that is that 11:45, he was seen talking to a police sergeant into open area of the police headquarters.

Justice Byron R. White: That's 11:45 the next day, the next morning?

Mr. Marshall: 11:45 the next day, he was seen talking to a detective sergeant, I think Klein or something like that.

It appears he was in the open area.

The other thing is that what is in the record is that at no time was any federal officer present while the State was questioning, that's positive testimony.

It's also a positive testimony that there were no state officer present when they questioned him.

And when you bear in mind that between 12:00 and either 2:00 or 2:30, they had gotten two false statements from him.

And the time it took to question him and to write it out in longhand, it would appear to me that he must started talking very soon after 12:00.

That's just stands to me --

Justice Abe Fortas: Is that -- that noon of the day of the arrest?

Mr. Marshall: No sir.

Justice Abe Fortas: When you say “12 o'clock”, what do you mean?

Mr. Marshall: 12 o'clock the next day, he was arrested the night before the FBI asked for him at 11:45.

At 12, they gave them a private room and the federal questioning started at 12 noon on the day after his night arrest at 9:45.

The -- there is also evidence and this evidence is from the defense counsel in calling FBI agents as his witnesses despite the judge, it seemed -- it looks as though he got somebody with uniform with the other team on but he still called them.

And they testified positively that this man was in perfect condition.

He seemed to have complete control of his faculties, and number one, there's nothing in this record that he ever asked to call anybody at anytime under any circumstances.

The record also shows that he was obviously from California with California licensed plates, living in a hotel in Kansas City and so far the record shows, he didn't have any friends, relatives, or anybody else.

He did not take to stand himself.

He sought to build this case on Government witnesses particularly FBI agents, and he didn't make the grade.

It's also apparent that he made a choice and that is in the record where the Court said in sentencing him, I think it was on 70 -- but anyhow, I get the page.

In sentencing, the Court says, “You know and realize that had you been tried under the laws of the State of California for the same robbery you could've gotten life", and he said, “Yes sir.”

And I think that he made a choice.

He constantly denied the crime to the states and when the FBI talked to him, he made these two statements.

Chief Justice Earl Warren: We'll recess now.

Mr. Solicitor General, you may continue your argument.

Mr. Marshall: Mr. Chief Justice and may it please the Court.

I checked during the lunch and recess, page proofs were mailed by airmail on Wednesday.

And if they didn't reach, it's not the fault of the Department of Justice.

It would be the fault of the Post Office Department.

I'm sorry if you didn't get them.

I -- what I concluded before lunch, I'm at the point where I wanted to make it clear that while there's nothing in the record to show what happened the night before, there's also nothing in the record to show that Westover was at anytime won by the state.

There's nothing in the record one way or the other.

The statutes and the rules of Missouri do apply that a man must be brought to the stage of arraignment within 20 hours after arrest.

That brings me to the point that I think is a crux of this case, is that the Mallory Rule and the Anderson case, and a couple of cases so relied upon by petitioner just do not bear any factual basis in this record.

I don't believe there is this stage of anything wrong with the state and the Federal Government in the prosecutorial stage having a statement where one as the other, “If you find counsel, I want to talk to him.”

There's no question that when he was picked up the night before, it was, as the petitioner admits primarily for the two robberies in Kansas City specifically a finance company and a bakery.

Much is made of the fact that the money that was seized on Westover, $607 was seized by the state police.

It was examined jointly by the state police and the FBI.

It is true that the state and the FBI jointly took down the serial numbers.

One read it off and the other marked it down for the use of both to see which place the money -- the sale money would fit into.

And the record shows that least as to the federal charges in the banks that were robbed, they had these packs of money with marked bills in which they stick into the tellers' cages for this expressed purpose in case they are robbed.

But this -- there's nothing illegal about the cooperation in that stage.

Secondly, as I mentioned, there were no federal officers present during state interrogation.

That is in the record, positively.

Secondly, that the state police denied that they made any inducement to Westover.

That if you talk to the federal or anything, they never mentioned it to him.

Then it's repeatedly said by each of the witnesses that there was no deal of any kind between the police and the FBI.

And this evidence is brought out by the defendant.

It's clear that at the time the FBI examined Westover, he was a state prisoner and not a federal prisoner.

On page 79 of the record, there is a testimony that Westover, when the FBI began to question him, he was mentally alert and appeared to know exactly what he was doing, no evidence that he had been held up late at night or kept awake or anything.

There was no federal warrant outstanding at the time of his arrest -- I mean at the time that he's questioned by the FBI.

And the FBI agent says positively at the time they questioned him, they had none of the details concerning the Sacramento robbery.

Not only was he advised of his rights by witness of the evidence of the two statements he made but the FBI agents testified from the witness stand that he was fully advised of his rights.

And that statement is that I advised him that he didn't have to make a statement, that any statement he made could be used against him in a court of law and that he had the right to see an attorney before he made the statements.

And the final point is everything I have said is uncontradicted.

Justice Abe Fortas: In what state was that statement made, General?

Mr. Marshall: During the questioning between 12:00 and 2:00 or 2:30.

Justice Abe Fortas: During the question (Voice Overlap) --

Mr. Marshall: There were three agents there.

Justice Abe Fortas: During the question -- questioning by the FBI?

Mr. Marshall: Yes.

And the statement says that he was told in front before he has made the statement.

But the test --

Justice Tom C. Clark: Before he made --

Mr. Marshall: Sir?

Justice Tom C. Clark: Before he made any statement at all?

Mr. Marshall: That -- that's what the statement says.

But this says -- where it doesn't say exactly when.

It says where the statement is made free -- was he advised of his rights, and after he was told, then he went ahead and made the statement.

So it appears from page 82 that it was before the statements were made.

Justice Tom C. Clark: He didn't ask for a counsel?

Mr. Marshall: He never -- there's nothing in the record that showed that he ever asked for counsel.

Justice Abe Fortas: Is this the -- what's been referred to as the standard FBI warning?

Mr. Marshall: Yes sir, this is practically it and it's always given.

And at least so far as the Department of Justice is concerned, has witnessed this or an (Voice Overlap) practice of the FBI, we can deduce this is the practical way to do it.

Justice Byron R. White: But Mr. Solicitor General, what if upon giving such a warning, the person being interrogated says, “I will -- I want to call counsel”.

Mr. Marshall: This statement says that if he wants to see an attorney, he can do it before he talks.

That's what this warning says.

Justice Byron R. White: And then if he says, “I don't know anyone.

I don't know a lawyer.

And I can't afford one anyway”, what happens then?

But I still want to talk to a lawyer.

Mr. Marshall: If he says, “I still want to talk one”, then it would be my position that the most -- the agent would have to say is, “We do not have a lawyer.

We had no means of furnishing you a lawyer.”

Justice Byron R. White: Well, but can the agent go -- will the agent then go on and interrogate?

Mr. Marshall: I think the agent would then say in view of the fact that we can't give you a lawyer, we can't pay for a lawyer for you, do you want to talk?”

And he is then -- well, I think, in a position to say, “If I don't get a lawyer, I don't talk and that's the end.”

Justice Tom C. Clark: In other words you'd say you'd read a waiver into that.

Mr. Marshall: I don't think it's necessary, Mr. Justice Clark, I don't want to be accused of dealing semantics.

But at this stage, I'm not too sure he has a right which he needs to waive.

Justice Tom C. Clark: What if the FBI said, “No, we can't give you a lawyer.

We can't find you a lawyer.

We don't know anybody at all.”

And then we asked him to go ahead and make a statement or in part on the -- under those circumstances, if you wish to go ahead you may, well, that would be -- would you say that would be a waiver?

Mr. Marshall: It would be the waiver of his right to remain silent.

It would be a waiver of his right to remain silent, I would think so.

Justice Tom C. Clark: Well, then he just said, "Well, under those circumstances, you won't take any statement."

Mr. Marshall: We will not take a statement?

Justice Tom C. Clark: “We won't interrogate you”.

Mr. Marshall: Well, I think it's up to the agent at that stage.

That's a possibility but I think the more and likely possibility would be the agent will say, “Since I can't give you a lawyer and I don't think you have a right for us to furnish you a lawyer.

I ask you again after repeating this, do you want to talk?”

And then he has the choice to make.

He said (Voice Overlap) --

Justice Byron R. White: But, what if he says no.

Just says, “No, I don't want to talk without a lawyer.”

Mr. Marshall: That's it.

Justice Byron R. White: Is that the interrogation over?

Mr. Marshall: That's what I would think.

Justice Byron R. White: Well, is it or -- and you know what the practice is?

Did they say, “Oh come on now and go on and asking him questions and presenting --

Mr. Marshall: Well, I -- I would say that once the man makes it clear, that he does not want to talk or he will only talk on certain terms, and those terms are not met, I think that the authority at that stage should stop questioning.

Justice Byron R. White: Well, do they or not?

Mr. Marshall: I don't know, sir.

I imagine --

Justice Tom C. Clark: You don't know what (Voice Overlap) --

Mr. Marshall: -- (Inaudible) with the FBI, or would be reasonably certain, they'd stop.

Justice Tom C. Clark: You don't know whether they --

Mr. Marshall: Do you think (Voice Overlap) --

Justice Tom C. Clark: -- get a lawyer for him later?

Suppose he's an indigent or (Inaudible) --

Mr. Marshall: Well, if he's an indigent I don't -- I just don't know of any facilities in existence to get a lawyer.

I don't think the --

Justice Tom C. Clark: On the arraignment or something?

Mr. Marshall: Prior to arraignment, I -- I am sure that speaking for the Federal Government, there's no provision I know of to hire a lawyer.

Justice Byron R. White: Of course if the -- if the counsel's point doesn't need to get into it at all, if the fellow knows enough to say, “Why do you still want to talk without a lawyer here,” he knows it's enough to say, “I just don't want to talk”.

Mr. Marshall: That's if he --

Justice Byron R. White: And --

Mr. Marshall: -- understands it, Mr. Justice White.

If he understands this which I submit an average person can understand, then I say the only purpose of a lawyer at this stage would be devising what this statement means.

Well, if he knows, he doesn't need it.

Justice Byron R. White: Well, what if they asked him the question, they say, -- they give him the warning and he says, "I don't know a lawyer.

I can't afford one", and the agent says, “Well, we have no lawyers to furnish you and do you want to talk or not?"

And he says, "Well, I don't."

And the agent says, "Well, you don't have to but if you want to, we want to hear what you got to say."

And he then doesn't say, “No, I don't want to talk,” he says, “Well, what do you want to know?”

Mr. Marshall: Well, then I think he's talking voluntarily.

And he's not being in any stretch of the imagination either being forced or threat.

Justice Byron R. White: Yes, but he's is being -- he's talking without a lawyer.

Mr. Marshall: Well, I don't think that it's -- well --

Justice Byron R. White: Well, how does he know when that -- how does he know when that -- to make that decision on whether to talk or not until a lawyer (Voice Overlap) --

Mr. Marshall: I think it depends on the individual.

If you --Well, just --

Mr. Marshall: If you remember --

Justice Byron R. White: Do you think whether a lawyer is present there or not, isn't -- is relevant to what, the (Voice Overlap)?

Mr. Marshall: I think the lawyer being present is relative to this point.

And I may go right straight to the Escobedo case on that, where the man wants to see his wife, Haynes against Washington, or wants to see his lawyer, Escobedo, and the investigating authority say, “The only way you will see that person is for me to allow you to see him, I've got the key in my hand to open the door, and I'm not going to open it unless you talk.”

Then that --

Justice Byron R. White: Well, that's different, that's a different case.

Then it'd be -- they just say, “Well, we don't have a lawyer and now you -- and the --”

Mr. Marshall: That's right.

Justice Byron R. White: “But you don't need to talk, but do you or do you -- don't you want to talk without a lawyer?” Then he says, “Well, --

Mr. Marshall: Well, it --

Justice Byron R. White: -- what do you want to know?”

Mr. Marshall: If the man -- number one, if the man says, the -- in one way he has a lawyer, “I want to call my lawyer etcetera, etcetera”, then I say the normal procedure would be you'd have to wait until he calls his lawyer and his lawyer talks to him.

When he says, “I don't have a lawyer, I'm broke, but I would appreciate if you'd get me a lawyer."

You say, “Well, we don't have a lawyer.

We have no means of getting a lawyer for you.”

Justice Byron R. White: Which is true.

Mr. Marshall: Which is true and so far as I know, I know of no place unless it's some legal aid society voluntarily puts lawyers in there.

And that's not true in any place I know of that --

Justice Byron R. White: Well, as soon as he says, “I want a lawyer”, why hasn't he automatically said, “I don't want to talk without one and therefore the interrogation should cease."

Mr. Marshall: I think we would have to just about say that.

Justice Byron R. White: Yes.

Mr. Marshall: There's nothing wrong with him saying, “No”.

Justice Byron R. White: Yes.

Mr. Marshall: And this case is -- there's nothing that he has ever -- so far as we know, as soon as the door is shut, he started talking.

Justice Hugo L. Black: Do you think that the situation that Justice White is asking about invokes any principles in the Griffin and Illinois and those that succeeded it?

As I understand it, you say that of course a person who had a lawyer -- who had the money to get a lawyer (Voice Overlap) --

Mr. Marshall: Yes sir.

Justice Hugo L. Black: -- could get one immediately.

But this man has no lawyer and has no money to get one.

And the only reason he doesn't have a lawyer there is for that reason.

Does that raise an inference of what an indigent is entitled to?

He said you're not getting treated like the man ordinarily who has money to get a lawyer.

Mr. Marshall: But he's not being denied anything.

He's not being denied anything.

The state is not affirmatively denying him anything.

The state just --

Justice Hugo L. Black: Now, they deny --

Mr. Marshall: -- is not furnishing him something.

Justice Hugo L. Black: But that -- that was the trouble in some of these other cases (Voice Overlap) --

Mr. Marshall: Yes, but --

Justice Hugo L. Black: -- in fact, the state can have a new provision to supply him a lawyer but we said that if other people have lawyers, we can have him entitled to have them, entitled to have lawyers represent him at that point.

If the man is too poor to get one, that the state should (Voice Overlap) --

Mr. Marshall: Well, I think all of those cases, Mr. Justice Black is where you have a right and I don't think you have a right to a counsel.

Justice Hugo L. Black: But I understood you to say if he had -- had money, he would have a right to have his lawyer there, at that moment.

Mr. Marshall: He would have a right to consult his lawyer.

Justice Hugo L. Black: Alright.

Mr. Marshall: He would --

Justice Hugo L. Black: He would have a right to -- but the man who's too poor to get one has no right to do it, he -- that he had no chance to do it.

Mr. Marshall: I think that's --

Justice Hugo L. Black: That's the situation we had in Griffin and the case that succeeded it, isn't it?

Mr. Marshall: Yes, but Griffin was a different point.

Justice Hugo L. Black: I know it was a different point, but it was --

Mr. Marshall: Because he --

Justice Hugo L. Black: -- because of the fact that in the trial procedure --

Mr. Marshall: We can't equalize the whole thing.

Justice Hugo L. Black: That's right.

Mr. Marshall: I just don't believe we can --

Justice Hugo L. Black: What --

Mr. Marshall: -- because --

Justice Hugo L. Black: What -- how in your judgment, from what provision of the Constitution does the -- Government's power, to detain him there, and question him, to detain him and question him, what provision of the Constitution grants that power?

Mr. Marshall: I've been unable to find one that grants it as such.

It's inherent in the investigatory process, proceeding the prosecutorial process.

And I don't think it's ever been questioned.

Justice Hugo L. Black: Well, that -- well, it is with me.

Mr. Marshall: I know it is sir and -- I am --

Chief Justice Earl Warren: How long do you suppose --

Mr. Marshall: (Voice Overlap) our best.

Chief Justice Earl Warren: How long do you say they can hold him?

Mr. Marshall: I think that the question of holding him -- I am not -- I'm unaware of the other questions were asked.

I think he can be held for a time to at least check out what he was arrested for.

That time would be a very short time.

I am thoroughly in complete agreement with arraigning the man or give him the judicial process as soon as it's possible.

Chief Justice Earl Warren: But its one thing to hold him perhaps for the purpose of checking out.

What they know about him, it's another thing --

Mr. Marshall: Yes sir.

Chief Justice Earl Warren: -- to -- it's another thing to interrogate him during all that time they're holding him to check out, isn't it?

Mr. Marshall: Well, providing the interrogation is on the checking out point, because for example a man has an alibi and alibi is out of town or something like that.

If the -- if an alibi was right, say, you could check it out in 15 minutes.

If he's out of town, it would take two hours or so.

I mean, I don't think there's any short line we can put down.

My point is that when the questions are made and the answers are made, I think the mistake is in reading the mind of the questionnaire, I think you should read the mind of the person who is making the statement.

And if he is making the statement on the theory that he is obliged to make it, and not even as far as has to make it, then I think that's overreaching.

Justice Hugo L. Black: My trouble with that is this, that I have no doubt to what -- the Government has the right to make inquiries of that kind.

There's no doubt about it.

Mr. Marshall: Yes.

Justice Hugo L. Black: The question is, do they have the right to detain people as though they are under arrest for the purpose of questioning him, and questioning when they are there alone and detained -- imprisoned during that period of time?

Mr. Marshall: Well, that -- I think that comes to the point that we have to decide on what kind of a crime that its -- we are investigating, what are the problems, and I'm not balancing, Mr. Justice Black.

But just -- this --

Unknown Speaker: What (Inaudible)

Mr. Marshall: Sir?

Justice Hugo L. Black: That's not forbidden by this, not of (Inaudible)

Mr. Marshall: I don't think I would question the Court, but if I may just to give you two cases we mentioned in our briefs, the question of the well-trained criminal lawyer if by any chance anyone who might commit a crime and he's investigated, he would need any lawyer and that could be considered as going to the end.

But there's a case pending here right now on certiorari from the Second Circuit, U.S. against Cone, where a man is caught with a huge case of marijuana on the chair beside where he's sitting and a few marijuana cigarettes in his pocket.

And the agents take him outside, the narcotics agents, in broad daylight in the middle of Manhattan and then walked into one block down from the studio where they picked him up to the car.

They don't want him, they questioned him, and he tells the whole story, but it was all a part of the arrest.

I don't see any overreaching there to hold such a confession out.

Then you have a confession where the man's been there and I think the important point that Mr. -- the Chief Justice has thought, when you are holding him for this questioning and then you certainly can hold him incommunicado.

That is absolutely forbidden.

If he wants to talk to his family, he shall be permitted to do it.

If he wants to talk to his lawyer, he should be permitted to do it.

But the lawyer -- the only advice the lawyer can give him is what the statement means, the lawyer can't prevent him from being fingerprinted.

The lawyer can't prevent him from being mugged.

The lawyer can't prevent him from being put in a lineup.

The only thing the lawyer can do would be to tell him --

Justice Byron R. White: Not yet --

Mr. Marshall: This me.

Justice Byron R. White: -- Solicitor General.

Mr. Marshall: Well, Mr. Justice White, I would hope that as long as this Court sits, end of quote -- I would hold.

But I think the real point is that it made the difference we had is the denial of the right to see your own lawyer.

And I respectfully cannot get too close to this ability to hire a lawyer.

You couldn't staff every precinct with a legal staff of lawyers.

It can't be done.

And once the rule is made, that a man is entitled to a lawyer once he reaches the precinct, you must, by force or power in Alabama, insist that it'd be an effective counsel.

Justice Abe Fortas: Mr. Solicitor General, apart from the decisions of this Court looking to the Constitution and of --

Mr. Marshall: Yes.

Justice Abe Fortas: -- your theory, what is the basis for your statement that if a man's -- has counsel and wants to consult counsel, he should be allowed to do so?

What's the constitutional basis?

Mr. Marshall: I don't think that -- I don't say that he has a constitutional right to see his counsel.

I said to deny him the right to see his counsel or his wife makes the statements that he makes conditional upon him seeing them.

Justice Abe Fortas: Well, perhaps, I -- I'm not following you but you do -- are you saying that there is or is not a constitutional inhibition -- let me put it this way, are you saying that there is or is not a constitutional inhibition against using a confession which is given after denial of an arrested person's request to see his lawyer?

Mr. Marshall: I would say, "Yes sir", with one exception.

If it can be construed that the person confessing gets the feeling that unless I talk, I won't see my lawyer.

Justice Abe Fortas: Well --

Mr. Marshall: I think that's inherent.

Justice Abe Fortas: Well, let me pass that.

Mr. Marshall: Alright.

Justice Abe Fortas: What is the basis of that -- what is the basis of that constitutional right (Voice Overlap) --

Mr. Marshall: It's the Fifth Amendment which as in those circumstances puts upon the man making the statement and unreasonable restraint in urging him to talk in order to gain something.

Justice Abe Fortas: Do you think it defeats his constitutional privilege to himself --

Mr. Marshall: To remain silent.

Justice Abe Fortas: His constitutional right to remain silent.

Mr. Marshall: Yes sir.

Yes sir.

Justice Abe Fortas: Now, how do you distinguish that from a situation in which a man says, “I want to see a lawyer, I haven't got one but I want a lawyer.”

Then he -- that's denied to him let's say in -- let's say, they interrogate and say “Sorry.

If you haven't' got a lawyer, we're not going to produce one for you”.

And then the arrested person confesses and the confession is offered at his trial in evidence.

Now in that case, does the Constitution prohibit or seek an evidence of the confession or not?

Mr. Marshall: No, sir because the --

Justice Abe Fortas: Now why not?

It's a difference in the constitutional terms.

Mr. Marshall: The difference -- the difference as I see it Mr. Justice Fortas is that in the second case, there is no possible urging that the man can get, that if I make the statement, you will then let me talk to a lawyer.

Justice Abe Fortas: Well, why not?

Because in one case -- the only difference between the two cases --

Mr. Marshall: Is that there's a lawyer there.

Justice Abe Fortas: That on the first case, the fellow says, “I know a lawyer.”

Mr. Marshall: What --

Justice Abe Fortas: And then the second -- second case, he says, “I don't know a lawyer but I wanted to talk to him.

But I wanted to talk to a lawyer.”

Mr. Marshall: Well, the -- if I go back to the -- I see not too much difference with my position on Escobedo and Haynes.

The reason -- well Haynes had a wife.

Justice Abe Fortas: I understand that.

And we --

Mr. Marshall: But if he hadn't had a wife --

Justice Abe Fortas: I haven't -- I have yet heard any -- anybody heard that state's got to go out and find him a wife.

Mr. Marshall: Well, that's -- I didn't want to go that far but I think it is that there is something available to you.

And if you don't incriminate yourself, you won't get that something that you would normally do.

Justice Abe Fortas: But General, in the case where a man has a lawyer --

Mr. Marshall: Yes sir.

Justice Abe Fortas: He's a gangster, let's say, somebody, an organized crime, there the police said -- generally as I understand, they have lawyers, not the little fellows (Voice Overlap) --

Mr. Marshall: Before the crime sometimes.

Justice Abe Fortas: In a case when organized crime follows --

Mr. Marshall: Yes sir.

Justice Abe Fortas: He's got a lawyer.

Your position is that if he's not allowed to consult the said lawyer before he makes his incriminating statement, that then the incriminating statement should not be received in evidence because in that case you say there's psychological pressure on him and the statement is not voluntary and he's being compelled to -- in effect to make statements against himself.

Mr. Marshall: No sir, but --

Justice Abe Fortas: The only difference between that case and the case where -- that I put to you is in the second case he's a -- he doesn't have a lawyer whom he's retained.

Mr. Marshall: Well, I would not -- I don't say automatically that that confession is out of the second one because if he's had enough, if the record shows that he's had his lawyer represent him in the last six quarter periods, as I think if I was the judge, I could say he knew his rights.

Chief Justice Earl Warren: But General, may I give you -- ask you what you would do with this case and that it happened in the district here just a few years ago when -- say four years ago, when they were arguing the Mallory decision over the capital.

There was a robbery one night in a restaurant and the robber not only took the money away from the woman cashier but he beat her up in a brutal fashion.

And that she gave a description to the police.

And the police went out into a certain area of the city and gathered up 90, not nine, but 90 people who might answer that description, got them out of bed, threw them into jail at night, and didn't process them by morning.

Some of them -- a lot of them couldn't go to work because they were in jail for suspicion of robbery.

Now, would you say that those who had lawyers there could get out and not be interrogated and those of the 90 that were too poor would be entitled -- they could be interrogated by the police --

Mr. Marshall: Well --

Chief Justice Earl Warren: -- until they got a confession that they happened to have done it.

It happened that not one of these 90 was a guilty party.

They found him later, but that was the way they did it, 90 people they threw in jail.

Mr. Marshall: Well, I've always been opposed to dragnet arrest of any kind but the -- if I may say so, the -- to really put that in proper focus, anybody that had a lawyer would have got the writ -- got his man out.

Chief Justice Earl Warren: Well, then you can --

Mr. Marshall: But you wouldn't have to get a lawyer to get a writ to get the other ones out, that's the way the lawyers has to do it.

Chief Justice Earl Warren: Well, I don't quite understand you.

They were arrested in the middle of the night and if they could get on the phone as you say and get their lawyers and their lawyers said, “Well, don't talk to them.

I don't want you to talk to them."

And they would follow that advice then the police could do nothing with them.

But the rest of them who have no lawyer and perhaps were poor and couldn't at least at that time get a lawyer, do you think that the police would have the right to retain them to question them ad lib.

Mr. Marshall: As the law now stands, I would say that the only redress they have would be that they were the subject of this dragnet arrest and their rights had been denied by the dragnet arrest and that anything came as a result of it would go out.

Now, that's what I think the Court should do in such a case.

Chief Justice Earl Warren: Well, then all of them, whether they had lawyers or not, those circumstances would go out.

Mr. Marshall: Would go out when they -- I mean you wouldn't be able to use those statements in Court in my position.

I don't think so because they -- the --

Chief Justice Earl Warren: And the --

Mr. Marshall: -- the arrest itself was invalid and any incarceration then was bad.

But on the cases we are working on, we're working on the theory that the arrest was a valid arrest.

Chief Justice Earl Warren: Yes.

You don't suggest that we overrule Escobedo, do you?

Mr. Marshall: No sir.

I think that Escobedo can very well fit into the -- this case under the Fifth Amendment point, but I don't want to, in any way, give support to any theory that we believe that Escobedo requires that a lawyer be appointed to an indigent in the police precinct or at the arrest.

Chief Justice Earl Warren: Yes.

Mr. Marshall: Supposedly, if you use accusatory stage as the point, and a policeman is coming down the street, and crash, goes in the window, and he rushes up to where the crash is, and there's a rock inside the window and the man with his hand on some jewelry, well, he's in a rather accusatory position.

Well, you wouldn't need a lawyer for him in that stage.

I mean, this accusatory thing as I think would get us in trouble.

It's where the man's mind is changed, not to police's --

Chief Justice Earl Warren: Yes.

But General, you wouldn't ask us to weaken Escobedo to the point of saying that a man could be interrogated if he didn't have a lawyer but he said that he wanted a lawyer and he could not raise one at the particular time either because of lack of money or couldn't get him on the telephone.

Mr. Marshall: And then I think he could very well say, “Well, I'm not going to talk.

Chief Justice Earl Warren: Yes.

Mr. Marshall: Then if the -- if it appears to the trial judge that he really meant he wasn't going to talk, and then after that, he was conjured over as in Escobedo, he was handcuffed or something, then I think the statement would be in trouble.

Justice Byron R. White: Did you say that (Inaudible) he didn't want a lawyer and he was (Inaudible)

Mr. Marshall: Yes sir.

Justice Byron R. White: In all, practically -- perhaps, the interrogation is over.

Mr. Marshall: Well, it -- for the purpose where the -- to my mind, once he says “any terms” -- “I'll talk if…” --

Justice Byron R. White: Well, I know -- he just -- you -- you've -- he says within that --

Mr. Marshall: Yes.

Justice Byron R. White: -- statement there, and he says, “Well, I want a lawyer”.

Mr. Marshall: Yes sir.

Justice Byron R. White: And they presumed to go ahead, “Get him!”

“Well, I don't have one.”

And they just said, “Sorry, we can't furnish you one”, and they ought to pull up his paper -- as I understand you, the agent ought to pull up his papers and leave.

Mr. Marshall: No sir, I went to other steps.

I said --

Justice Byron R. White: Because the fellow has already said he wanted a lawyer.

Mr. Marshall: Yes, I said that --

Justice Byron R. White: Which means he doesn't want to talk unless he has a lawyer.

Mr. Marshall: If he makes that clear, that's it, if he makes that clear.

Justice Byron R. White: That's right.

Mr. Marshall: If he makes it clear.

Justice Byron R. White: Well, he says I want to -- all he says in answer to that warning is, "I want a lawyer."

Mr. Marshall: And he says -- well, what I was trying to get off --

Justice Byron R. White: And he then -- if he doesn't get one, why shouldn't -- why isn't the conversation over?

Mr. Marshall: Well, I think that I -- I'm giving him -- I'm the agent.

I'm giving him another factor which is that you assume I can get a lawyer for you and the truth is I don't have a lawyer.

I don't have them and I can't get a lawyer for you.

Now, with that understanding -- let me read the balance of this statement to you again.

Do you still want to talk?

And the guy says, “No.”

Then I say, the agent's through, the agent's through.

That's -- but I had to -- I think I -- in my own mind, I have to tell it in order to make sure about it.

The real problem is that what -- when he talks later.

Justice Byron R. White: But if he says -- if he says, if you're reading that part again and he says “Well, what do you want to know?”

“I'll ask you some questions.

Try to straighten some things out.”

You wouldn't at that point to say that if there's anything wrong with further questioning.

Mr. Marshall: I think that --

Justice Byron R. White: You wouldn't know -- you wouldn't have him -- you wouldn't insist that they sign a waiver of some kind.

Do you think there's anything to waive anyway?

Mr. Marshall: I don't think he has to sign a waiver at all.

I think that -- I don't know if you noticed the real careful trial judges, they always in each stage after recess, they put these facts in the record.

Well, I don't think that's necessary if he recess the question for 15 minutes and come back to you after reading the statement over and over again.

I think the whole thing has to be taken into consideration.

Justice Abe Fortas: General, is the warning that was given by the FBI agents in this case, the standard FBI warning?

Mr. Marshall: I think so Mr. Justice Fortas.

I have the manual but I don't have it with me, it's not supposed to be out.

I will check it fair enough if I may send the letter.

Justice Abe Fortas: I should -- I should very much appreciate it.

Mr. Marshall: I think it is.

Justice Abe Fortas: Knowing that and I should also very much appreciate knowing whether there is any source available to us as to FBI practices.

Mr. Marshall: Yes sir, it is and --

Justice Abe Fortas: This has been my understanding that the FBI does have a standard practice as to warning and what happens in warning them or the other.

Mr. Marshall: They have an official manual.

I have it as I know it could be released to the court.

But the question is I feel obliged to give it to petitioner's counsel and I would much rather check with Mr. Hoover before I do it.

Justice Abe Fortas: Well, I don't -- I'm not suggesting any particular (Voice Overlap) --

Mr. Marshall: It's a whole (Voice Overlap) -- it's a full manual.

Justice Abe Fortas: -- well, I'm not even saying whether it's possible but if, for example, I could know authoritatively --

Mr. Marshall: Yes sir.

Justice Abe Fortas: -- just what the FBI warning is, number one.

Number two, when the FBI warning is given and what stage.

Number three, what happens in the event that counsel is requested or counsel appears representing the arrested person.

Number four, what happens in the event that counsel is requested but that the person in custody does not have counsel?

Mr. Marshall: Alright sir.

Justice Abe Fortas: I'd be very grateful if there's someway in which --

Mr. Marshall: We'll get that, we'll get the fact and I hasten to point out though that the -- I think the FBI is the only one that that does it uniformly, the Narcotics Bureau and Customs, I don't think it's just the (Voice Overlap) --

Justice Abe Fortas: I know that, that's very evident from the records that we have that --

Mr. Marshall: Yes.

Justice Abe Fortas: -- the FBI does seem to have some regularized procedure.

Justice John M. Harlan: Could I ask you a question on this --

Mr. Marshall: Yes sir.

Justice John M. Harlan: -- a little broader basis?

As I read your brief, the Government's position is that as a matter of constitutional right neither a warning of counsel nor a warning of the right to remain silent is a requirement but that absent either one of those warnings, those are factors that could be taken into account on judging voluntariness and that the ultimate constitutional issue in these cases is whether or not the admission or statement or confession was voluntary.

Mr. Marshall: That's how exactly --

Justice John M. Harlan: Now, you're not receding from that or on anything you've said?

Mr. Marshall: Not in the least, not in the least.

We also say that for practical matter, the warning is better to be given but it's not required.

I have not receded at all.

Justice John M. Harlan: I didn't understood you had.

Mr. Marshall: No sir.

Chief Justice Earl Warren: Mr. Fawcett.

Rebuttal of F. Conger Fawcett

Mr. F. Conger Fawcett: Mr. Chief Justice, just a few words.

The -- I left San Francisco on Friday, therefore the page proofs mailed to me Wednesday, did not arrive in time.

It certainly is not Solicitor General's fault.

The printed brief mailed Thursday did not arrive at that time either.

However, I do think it is a little odd that an ex parte request was made for this additional material on January 14th of this year without notifying me.

I think it is also odd, curious that I ask to the exhibits when I was first assigned this case from December of 1963 and could not get them and now suddenly they're here.

I would also now on the merits make a few comments on what the Solicitor General has said.

First thing that the record has absolutely nothing in it, then he turns around and he can coax this wild story that the petitioner decided to trade a federal conviction or state conviction for a federal one.

He coursed to the fact the trial judge in California so commented sometime thereafter, a number of interesting points, first, of course, the state charges would have been Missouri, not California.

Secondly, he is presently serving a sentence of 30 years with under federal law minimum parole of 20 years.

Under the maximum of the statutes, he was convicted on there.

It would have been a 15-year sentence with earliest parole permissible in slightly less than 34 years.

As this Court I think knows, California at least customarily pardons life sentences at about seven to nine years.

The sentence under California law would have been five years to life, not just life as the Solicitor General's brief points out.

If indeed, Westover made this choice to trade one for the other at the time he was in custody, I submit that shows pretty adequately he certainly needed counsel.

He made a lousy choice.

Secondly, on the couple of point on the detention, we of course, are not arguing here nor did we below but the Court of Appeals adopted the same view that there's nothing illegal about state federal cooperation, of course not.

There is however something illegal and I would submit perhaps unconstitutional about an arraigned, unadvised detention.

It then becomes a question of looking to see how the federal authorities contributed to that.

Whether or not Missouri has a small book, 20-hour statute permitting state authorities to hold without a specific charge, I don't think we want to encourage that in federal law.

This Court need not reach constitutional proportions to strike it down.

I'd like to quote just because I think it sound from what the Second Circuit said in the Coppola decision.

It said if this cooperation between federal state authorities reached the point of arresting detention by local police for the purpose of enabling federal officers now not the only purpose perhaps with the purpose to question the defendants concerning the bank robberies for a period of time forbidden on federal officers by Rule 5 (a) of the federal rules of criminal procedure.

Admissions thus obtained would properly be excluded.

Such a rule prevents federal officers from evading the letter and the spirit of Rule 5 (a).

I'd add just a few words to Mr. Justice Fortas' colloquy with the Solicitor General on the right to counsel.

I find it very odd that the standard warning that the federal be -- Federal Bureau of Investigation gives to counsel -- gives to accused is that they have a right to counsel yet the Solicitor General stands up here and says, “Oh, but they don't have the right."

I can't understand whether the Federal Government is talking out of both sides of its mouth at the same time.

Are they simply empty words which in fact mean nothing.

Finally, I would like to comment on the discussion that has concerned whether or not a person without means to provide a lawyer can say or will say I won't talk or I want a lawyer before I talk.

I submit first it's pretty hard for a person in detention to stand up to the police, certainly hard for anybody except some experienced criminal.

That aside however, if that is to be meaningful, the common federal practice which this case has won't assure it, that is to say unless you have something like a tape recording of what went on, a verbatim statement of the questions and answers, it is a hollow thing to say and ever thereafter to know of whether or not the right to counsel and the right to remain silent was ever intelligently waived.

Certainly a narrative statement such as this where the federal officer in just what was said and puts it down in the words, "Oh, by the way, I wanted to -- I would also like to say that", that certainly simply shows no signs of a waiver or much of anything else.

Justice John M. Harlan: What would you -- suppose you were in the court during this period --

Mr. F. Conger Fawcett: Yes, Your Honor.

Justice John M. Harlan: (Inaudible) would you say that its proposition before this Court would go slow on the constitutional -- these very wide-sweeping investigations of the (Inaudible) as to what form it will be (Inaudible)

Mr. F. Conger Fawcett: Yes, Mr. Justice Harlan, a couple of points.

Justice John M. Harlan: Would you comment on that?

Mr. F. Conger Fawcett: I'd comment twice or there are two ways.

First, I point out the prompt arraignment statutes on the books of well over half of the states, of the union, and point out that as this Court knows, they are commonly ignored.

I think the states have had their time to start to clean this up and they haven't taken it.

I would comment secondly that I think the approach of the American Civil Liberties Union is very sad.

They say -- you needn't say a right to counsel is ipso facto and (Inaudible), the only way we can protect the privilege against self-incrimination.

What they do say is what -- with what we have now, that's the only way we can protect that privilege.

That leaves you open later if this state comes up with something else, something better.

Perhaps the tape recording would do it, then at that point you would say that is an acceptable alternative.

Justice Abe Fortas: Mr. Fawcett, do you agree that -- that would mean pulling the statement that somebody else here has made that the issue here should be considered to be Fifth Amendment, and not the right to counsel.

Mr. F. Conger Fawcett: Well, as I interpret Escobedo and as I think it make sense.

I don't really find myself in thorough agreement with anybody else.

The American Civil Liberties Union for example puts the right very heavily on the Fifth Amendment privilege.

But as I said in my argument in chief, I think what Escobedo did was to device a means to protect that.

I think as it's already been said, they are both and they're part and parcel but I think Escobedo went more than Malloy versus Hogan.

It went to the position of saying, “Here's a cure,” not “Here's a wrong, it must be righted,” but here's a wrong that must be righted, that maybe righted by these means.

Justice John M. Harlan: What about the third approach?

Now, there's (Inaudible) or the Fifth Amendment to self-incrimination (Inaudible)

Mr. F. Conger Fawcett: I wouldn't be troubled by that.

Justice John M. Harlan: You wouldn't be troubled.

Mr. F. Conger Fawcett: No.

Justice Hugo L. Black: You wouldn't be troubled by what?

Would you --

Mr. F. Conger Fawcett: By putting the footing on due process.

I think probably all of these other rights ultimately come down to due process in any case.

Chief Justice Earl Warren: That would lead us to deciding all these cases on the totality of the Supreme Court?

Mr. F. Conger Fawcett: No.

As I say, Mr. Chief Justice, I reject the totality of the circumstances and I think Escobedo rejected them.

I think it said -- well, I think it said we might -- you must have counsel at this focused interrogation point.

Whether you say the reason we must have counsel is due process or that specific provision in the Sixth Amendment I think is not by the court.

Justice John M. Harlan: I don't know that you stated very frankly to indicate, particularly in Escobedo, the uniform course -- the decision of this Court had been on the totality of things.

Mr. F. Conger Fawcett: Yes sir.

Justice John M. Harlan: You don't mean to suggest that anything short of Escobedo would suggest a different history in this Court, as a problem?

Mr. F. Conger Fawcett: I think there's a different history which starting with the concurrence in Spano has, as I say, moved away from a necessity of viewing every case on the totality of its circumstances.

A recognition that when there's behind doors interrogation, you can't always know what the circumstances are that Escobedo flowing on Spano, White, Massiah has gone a step towards rejecting or at least adding a new qualification to the conventional totality of circumstances.

Justice John M. Harlan: But Spano itself was used in the (Voice Overlap) --

Mr. F. Conger Fawcett: No, Spano did not, it was the -- it was the concurrence.

Justice John M. Harlan: -- as I understood, has gone (Inaudible)

Mr. F. Conger Fawcett: Yes sir.

Justice John M. Harlan: -- upon the concurrence.

Mr. F. Conger Fawcett: That's correct.

That I think was the start, it was not of course the majority given.

Justice Hugo L. Black: But I think if you look in the note, Chambers against Florida.

Mr. F. Conger Fawcett: I'd certainly look.

Justice Hugo L. Black: You will find where it was pointed out that there had been two lines, one which used due process in its abstract sense and one which applied it to the Fifth Amendment and it's a precise language of the statute.

Mr. F. Conger Fawcett: Yes sir.

Justice Hugo L. Black: And I think there were plenty of cases cited along that line.

Mr. F. Conger Fawcett: I think there were, that there were many cases.

Thank you.

Print this transcript Transcript: 

Argument of Victor M. Earle Iii

Chief Justice Earl Warren: Number 760, Michael Vignera, Petitioner, versus New York.

Mr. Earle.

Mr. Victor M. Earle Iii: Mr. Chief Justice, may it please the Court.

This is another confession case arising out of a conviction of first degree robbery after a trial to a judgment of the jury in Brooklyn, New York.

The petitioner, Michael Vignera, was sentenced 30 to 60 years.

His conviction was affirmed without opinion in the appellate courts of New York.

Briefly the facts are these, sometime during the morning of October 14th, 1960, Vignera was arrested in Manhattan after having been singled out by a confederate.

The confederate had been arrested earlier that same morning for attempting to use a stolen credit card registered in the name of one Harry Adelman.

Vignera was first taken to Manhattan Police Station and then transferred to another Manhattan Police Station for questioning.

At the second police station later that same morning, he was identified as the man who had robbed a Brooklyn dress shop a few days before.

Identification was made by the victim, Harry, the same Harry Adelman, and an eyewitness.

Then under police questioning, Vignera admitted having committed the holdup by means of a toy gun having obtained $93.00.

Sometime thereafter at about 3 p.m., he was formally arrested.

Later that day he was taken to a Brooklyn Police Station for detention.

At the Brooklyn Police Station at about 11 p.m., Vignera's deposition was taken by an Assistant District Attorney and a hearing reporter and that recorded confession was introduced to the subsequent trial.

It amplified the earlier admission given to the police officer, included such additional details as the time of the day of the robbery, the fact that Vignera was operating alone, the weapon was concealed, number of persons in the dress shop, lack of preplanning, and the like.

The next day on the way to court, Vignera was again questioned about the weapon.

Apparently his story didn't jive with that of the victim and he finally admitted in a -- in fact a knife rather than a toy gun had been used.

And it is conceded, although the record admittedly is silent, it is conceded that at no time was Vignera ever advised of his right to counsel or to silence.

For example, the confession which are -- purports to be a verbatim transcript has no recital of any kind as to a warning.

It was not the practice in New York to give such a warning at the time.

I think it's entirely fair to assume that no such warning was given.

Justice Potter Stewart: When you talk to -- when you say that he was never advised of his right to counsel, aren't you, (a) begging the question, and (b) giving up a good deal of your position, because one of the questions here is does he have a right to counsel?

Mr. Victor M. Earle Iii: Well, I -- you asked that yesterday Mr. Justice Stewart and I want to make it perfectly clear that my position is crystal clear.

That he had a right to counsel the moment the State proceeded against him and the moment that -- when that moment arose it was at no earlier or no later rather than 3 p.m. on the day the police formerly arrested him.

As a matter of fact, in the Court --

Justice Potter Stewart: You mean he had a right to counsel and the Gideon against Wainwright sense --

Mr. Victor M. Earle Iii: Absolutely.

Justice Potter Stewart: -- a constitutional right to counsel.

Well, then --

Mr. Victor M. Earle Iii: Gideon decided that question.

Justice Potter Stewart: Well, then I think you're -- you lose your case, period.

Because he -- then, it was the duty of the State to provide him one.

Mr. Victor M. Earle Iii: Not necessarily.

Justice Potter Stewart: Whether or not he asked for one.

Mr. Victor M. Earle Iii: I don't agree with that Mr. Justice Stewart.

Justice Potter Stewart: That's what Gideon holds.

Mr. Victor M. Earle Iii: The -- Gideon holds that he has a right to counsel --

Justice Potter Stewart: He had to affirmatively waive -- waived it then.

Mr. Victor M. Earle Iii: He has to affirmatively waive it.

That's -- it's absolutely correct.

And he has to begin to waive it by the police making a showing of waiver.

The burden is on them to show a waiver.

But in Escobedo, the Court said in its footnote that the right to silence and the right to counsel can be waived.

And I accept that as the majority of the Court.

Now, the beginning I would think that the Constitution doesn't --

Justice Potter Stewart: I miss --

Mr. Victor M. Earle Iii: -- require a warning.

Justice Potter Stewart: I misspoke because --

Mr. Victor M. Earle Iii: The police --

Justice Potter Stewart: -- he wouldn't (Voice Overlap) --

Mr. Victor M. Earle Iii: I would suggest this is a remedy to the police.

If they have some other remedy, fine.

But I would think the beginning would be to warn him of his right in a very meaningful way, perhaps to record the warning (Voice Overlap) --

Justice Potter Stewart: Well, in the beginning -- if you're right, in the beginning is just to provide him a lawyer without warning him or telling him anything else.

Mr. Victor M. Earle Iii: Well, that would certainly be an easy way of handling it but (Voice Overlap) --

Justice Potter Stewart: It's the only way to -- it's the only way to satisfy the Gideon Rule, isn't it?

Mr. Victor M. Earle Iii: No, I don't think it is Your Honor, again because of the point -- the waiver point.

They obviously don't want to assign counsel.

The police aren't very well equipped to do it and they have to give him a -- they have to -- they will want -- undoubtedly to try him to waive.

Now, if they can do that, I say the Constitution at least to this point, history doesn't require anymore.

Although, I should add that even if they get a waiver, we have to look rather suspiciously of that kind of a waiver and it wouldn't entitle the police to hold him in custody indefinitely even after such a waiver.

It'd be a very limited waiver concept in a sense of a principle comparable to McNabb and Mallory.

Justice Hugo L. Black: Well, would he have to have a counsel if the police when they arrested him and detained him took him in charge just left him alone and ask him no questions?

Mr. Victor M. Earle Iii: No, I don't think --

Justice Hugo L. Black: And let him --

Mr. Victor M. Earle Iii: I don't think --

Justice Hugo L. Black: -- answer -- if he said anything voluntarily, that might be one thing.

But if they interrogate him then he -- unless they interrogate him, he wouldn't be -- he would need a lawyer?

Mr. Victor M. Earle Iii: Well, I -- I'm not so sure about even spontaneous statements, once the accusatory stage has been reached, Mr. Justice Black.

But I do think that if they locked him up and didn't get near him, didn't use him in a discovery sense, as the device to participate in his own subsequent conviction, that he would not have to -- a lawyer would not have to come to the police station --

Justice Hugo L. Black: He wouldn't need it --

Mr. Victor M. Earle Iii: -- because he has to be prejudiced.

Justice Hugo L. Black: He wouldn't need one, would he?

Mr. Victor M. Earle Iii: He might -- it would probably be very helpful for him to -- should lawyer could investigate the case along with the police.

But in terms of criticalness, you were talking about a moment ago, he has to be prejudiced at the trial.

I don't think it would be critical if nothing has happened.

Once they start a process that tends to undermine the Fifth Amendment privilege, it is certainly very critical.

And I might say that it's imperfectly clear from what General Taylor said yesterday in some of the other arguments that many of the briefs want you to overrule Escobedo or -- and they are taxed, I think it had been very thinly-veiled.

I'm going to assume that Escobedo represents the law in this Court and in this country.

Justice Abe Fortas: May I --

Justice John M. Harlan: (Inaudible)

Mr. Victor M. Earle Iii: Which part they want to have overruled?

Justice John M. Harlan: Which part of Escobedo do you think represents your point?

Mr. Victor M. Earle Iii: I think the majority opinions entirely, Your Honor.

Justice Potter Stewart: The holding and the record?

Mr. Victor M. Earle Iii: Well, if you mean by rhetoric Mr. Justice Stewart, there are several references to the Sixth Amendment, I think they're part of the holding and when the Solicitor General's brief talks only about the Fifth Amendment, I'm only perplexed.

I read what I read and that reference is -- is in there several times that there's a right to counsel and a critical stage can occur prior to arraignment and prior to trial.

Justice Abe Fortas: Mr. Earle, may I ask your help on precisely that point.

Let's suppose that this conversation which I -- as I remembered it took place in a police car going from point A to point B in which Vignera said something rather about the weapon.

Let's suppose if that had been the first act here before any other, the first statement that Vignera made.

In short, assume with me that the police picked up Vignera then in the police car going to the station.

Vignera said that he did it.

That he did the holdup and he used a knife.

Now, would that be inadmissible because of the absence of a warning or the absence of counsel?

Mr. Victor M. Earle Iii: Mr. Justice Fortas, you asked a question like that yesterday.

I think the question of -- this focus and arrest come at the same time.

I think that in the hypothetical you gave, the statement might well be admissible.

Certainly, a laying on of hand is an arrest but the probable cause requirements and there was I think probable cause satisfied here because he'd been singled out by a confederate.

The probable cause requirements are probably not the same.

If the determination of the State has charged him and has began its proceeding against him.

I can see -- of examples, for example, and the police have to make on-the-spot judgments taking four or five people who may have been involved in a crime, before they exculpate themselves and they're sent home and the fifth was proceeded against, maybe he's picked out of the lineup by the eyewitness.

At that point, it becomes clear that the accusatory proceeding has begun and then he'll have to be -- well then the police are going to have to show a waiver.

Any statement after that in the absence of a waiver or in the absence of counsel will be inadmissible.

Justice Abe Fortas: Well, how do you apply that to my example, I'm really soliciting your help --

Mr. Victor M. Earle Iii: I think your example --

Justice Abe Fortas: -- because I think -- I think this is the problem as I think Mr. Justice Douglas' questions indicated that this is a real problem, problem of defining of such a procedure which is plausible and advisable, they point at which the warning has to be given or counsel provided or both.

So that the right -- here you have a man who is taken into custody by the police, it's an arrest in the sense that he cannot thereafter leave.

The police have him.

And then on his way to the police station in the police, car he makes a statement that is in effect an admission.

The question is would that be admissible in your opinion if it were made prior to the warning have been given and prior to the offer or appointment of counsel or the waiver thereof.

Mr. Victor M. Earle Iii: In the absence of any form of coercion Mr. Justice Fortas, I think it would be admissible.

I'd like to give you a different hypothetical or to show you -- I think in my judgment this thing would vary.

For example, even before arrest, the accusatory stage might come into being if -- in a situation Government agents had a man on surveillance, and saw him commit some very speck acts and then laid their hands on him.

I think there, it would perfectly clear they were proceeding against him and you'd moved to stay even further back.

But in a more typical situation as in Vignera's, I think the accusatory stage doesn't begin until sometime after hands had been laid on and he come to the police station.

Here --

Justice Abe Fortas: I mean --

Mr. Victor M. Earle Iii: -- it may have been after he was identified.

Justice Abe Fortas: Forgive me, I don't want to take excess amount of your time but is this what you're saying that when the point of time comes, where it appears that the police have enough information to satisfy themselves if a fellow really did the act.

But then, the right to counsel or the warning attaches and not before, is that's what you're saying?

Mr. Victor M. Earle Iii: I think that that is correct, although, we don't have to look into the minds of the police necessarily, but you'll be able to determine that.

You should be able to determine that.

And if you're in doubt, I think some people will say, “Well, how did the policeman know this?”

If they're in doubt give the warning, push it up, err on the side of the warning, but that's why I don't see why it should post so much of a problem.

I think the FBI agents who've been giving this warning for so many years, probably err on that side.

Justice Potter Stewart: Now what -- what should this warning contain in your view?

Mr. Victor M. Earle Iii: Well --

Justice Potter Stewart: You were talking about the warning, what should this warning be?

Mr. Victor M. Earle Iii: There -- the Chief of Police in the District of Columbia last August promulgated a warning which I understand is now being given by all police agents in the -- police official in the district.

It goes something like this, “You have been placed under arrest.

You are not required to say anything to us at any time or to answer any questions.

Anything you say may be used as evidence in Court.

You may call a lawyer or a relative or a friend.

Your lawyer may be present here and you may talk with him, if you cannot obtain a lawyer one maybe appointed before you when you first go to court.”

I may have a little bit of quibble about that third point because it suggests a little bit that you might not be able to get a lawyer now if you want one.

Justice Potter Stewart: Much more than a little bit of a quibble on the basis of what you told us so far?

Mr. Victor M. Earle Iii: Excuse me?

Justice Potter Stewart: Much more than a little bit of a quibble, I should think, on the basis of what you argued so far, that he has an absolute right to a lawyer to be appointed for him at that --

Mr. Victor M. Earle Iii: No.

Justice Potter Stewart: -- right at that point.

Mr. Victor M. Earle Iii: I -- Mr. Justice Stewart --

Justice Potter Stewart: That's what I understood you to say --

Mr. Victor M. Earle Iii: -- he does not --

Justice Potter Stewart: -- unless he waives it.

Mr. Victor M. Earle Iii: Unless he waives it.

Justice Potter Stewart: Yes.

Mr. Victor M. Earle Iii: And then the question might come up of how the police -- what did the police do when the fellow says, “Well, thanks, I'd like a lawyer as a matter of fact now that you mentioned it.”

Justice Potter Stewart: Yes.

Mr. Victor M. Earle Iii: “But I don't have any money.”

They have a very simple choice.

They can give him 10 cents and a phone number of a Legal Aid Society or Public Defender.

And if that bothers him, if they're unwilling or unable to do that, they have another alternative just stop interrogating him.

That alternative was never mentioned by anybody.

Justice Potter Stewart: Well, I wouldn't -- don't quite yet understand the answer to the question I asked you.

What should the warning contain, not what you read as -- obviously.

Mr. Victor M. Earle Iii: Well, when I've read -- with what I've read, I'm satisfied with it (Voice Overlap) --

Justice Potter Stewart: And so far as it goes, but that's not enough, is it?

Mr. Victor M. Earle Iii: I think it's enough that it's made to an adult who is not a moron or who has a (Inaudible), I think that's probably enough.

Justice Potter Stewart: But then he's not entitled to a lawyer until the trial begins.

Mr. Victor M. Earle Iii: No, it's not correct.

Justice Potter Stewart: Well, would you read it again what the warning was --

Mr. Victor M. Earle Iii: Well, let me do this (Voice Overlap) --

Justice Potter Stewart: -- that you now say (Voice Overlap) --

Mr. Victor M. Earle Iii: I didn't write this warning here (Voice Overlap) --

Justice Potter Stewart: Now, would you not say it's sufficient, as I understand it?

Mr. Victor M. Earle Iii: I would be happy with the first two sections of them.

One is, “You've placed under arrest, you are not required to say anything to us at any time or to answer any questions.

Anything you say may be used as evidence in court.”

Two, “You may call a lawyer or a relative or a friend.

Your lawyer may be present here and you may talk with him.”

And they've got a three and I just wouldn't add.

Justice Potter Stewart: But in other words, you stop right there and you say --

Mr. Victor M. Earle Iii: I'd stop --

Justice Potter Stewart: -- that was sufficient.

Mr. Victor M. Earle Iii: That's right.

Justice Byron R. White: Well, then what happens, what if the -- what if the fellow says nothing at all?

Mr. Victor M. Earle Iii: Absolutely nothing?

Justice Byron R. White: Well, they did -- they give him the warning and he nods his head, yes.

Mr. Victor M. Earle Iii: Well --

Justice Byron R. White: I hear you.

Then what happens?

Mr. Victor M. Earle Iii: It takes a conscious reli -- relinquishment of a known right for him to waive his rights.

Those two basic rights I've been talking about, Mr. Justice White.

Justice Byron R. White: What was it?

Well, I understand -- I thought that's what you would say.

Now, what happens then?

The fellow says -- he just nods his head, what if he just looks at him?

Mr. Victor M. Earle Iii: Well, we can believe that he nodded his head, it's possible that he waived.

I'd be very reluctant to come to that conclusion on that hypothetical --

Justice Byron R. White: Well, what is it -- what is the -- what besides giving the warning and the failure to request counsel?

Mr. Victor M. Earle Iii: I think if the warning is recorded --

Justice Byron R. White: Would -- would it require --

Mr. Victor M. Earle Iii: -- if he write -- if he writes down his own handwriting that, “I've been warned, I understand that I have a right to a lawyer now, to talk to him right at this minute if I want to or I have the right to say nothing if I want to, I understand that.

But I -- I would like to go ahead and cooperate with the police” signed Michael Vignera, that would be another --

Justice Byron R. White: So how -- why would that warning, that's just fair at the first stage --

Mr. Victor M. Earle Iii: Well, that's what the police --

Justice Byron R. White: -- for you, isn't it?

Mr. Victor M. Earle Iii: -- have to say.

Justice Byron R. White: True.

The police have to say that but if they wanted -- if they want to rely on a waiver at anytime, they want to rely on a waiver at anytime which is the only ground that you would accept for a lawyer not being present is a written waiver, isn't it?

Mr. Victor M. Earle Iii: Oh, I think that's right.

I think it should definitely be recorded in some way.

Justice Byron R. White: And do you think they could have -- there should be a written waiver of the --

Mr. Victor M. Earle Iii: Absolutely.

And it shouldn't be something that he's conned in to give him.

Justice Byron R. White: And at the end it just the giving of -- the giving of the warning is only a --

Mr. Victor M. Earle Iii: -- beginning.

Justice Byron R. White: -- minor first step.

Mr. Victor M. Earle Iii: Well, not -- Mr. Justice Stewart asked me -- for me to read the kind of warning that would satisfy me.

Those are the words that I think make some sense.

But it's got to be made meaningful to him and he's got to acquiesce them.

Justice Byron R. White: Well, what if the -- now, what if he doesn't waive and he says, “I do want counsel"?

And the States says, “Fine.

Here's a dime and here's a Legal Aid number."

And the fellow calls them and he talks -- he talks to the lawyer and he comes back and sits down and you ask him some questions and he answers them.

Mr. Victor M. Earle Iii: Without his lawyer being present, for example?

Justice Byron R. White: Yes.

Mr. Victor M. Earle Iii: Well, I take it, that that would be a decision made by his lawyer and lawyers can waive rights for their clients.

Justice Byron R. White: Well, is that a waiver in your book?

Mr. Victor M. Earle Iii: It's --

Justice Byron R. White: What is it?

Is it the waiver of the right to consult counsel or a waiver of the right to have counsel present?

Mr. Victor M. Earle Iii: I think it's a waiver -- it's a waiver of a right to have law -- a lawyer in all the sense.

That is always meant.

Justice Byron R. White: So, (Voice Overlap) --

Mr. Victor M. Earle Iii: And the lawyer can make a determination whether he wants to be present or not.

Lawyers have waived many rights including cases that come to this Court.

Not filing on the 30th day and notice of appeal and the like, and if he makes a decision to let the -- to throw him to the (Voice Overlap) --

Justice Byron R. White: Yes, but isn't it -- my question is really going to, what do you think the scope of the right is?

You think the scope of the right is to have counsel present and that you must find not only the waiver, the right to consult counsel, but the right to have counsel present?

Mr. Victor M. Earle Iii: I think that is right Mr. Justice White.

Justice Byron R. White: I just want to know what your position was.

Mr. Victor M. Earle Iii: Just for example within the (Voice Overlap) --

Justice Byron R. White: I'm not arguing --

Mr. Victor M. Earle Iii: Is in the -- alright, but I want to elaborate on that if I might.

In a deposition in a civil case for example, customarily the plaintiff and defendant would have counsel present but I could certainly conceive of one lawyer deciding not to be present.

And through -- by his client through him would thereby waive that right.

But it seems the only way you could distinguish this case from Escobedo is the fact that Vignera did not make a request and -- we've even talking about with respect to waiver, I think, governs that.

Obviously, it wasn't a request that makes the right attached.

The right attaches when the State proceeds criminally against the individual.

The significance of the request, I think in Escobedo was that, was an objective piece of evidence to show that that stage have been reached there.

Actually, it's even clearer in Vignera, that in this case that at least by 3 p.m., the stage was clearly reached.

As an independent ground to support reversal on this case, and that is the fact that Vignera was detained for an unnecessary period of time.

I think that's true both under the state law and as a matter of common reasoning.

He was -- even after the accusatory stage is clearly reached to the police who had formerly charged him, he was not -- been arraigned.

He was not arraigned for nearly another 18 hours.

And I think the point you raised yesterday Mr. Justice Black doesn't -- that detention, and I would add especially prolonged detention, does not cut down on the Fifth Amendment privilege, doesn't whittle it away, doesn't undermine it necessarily.

And I would say that it certainly does.

As I said earlier I think that -- I hope that principle of the Court adapts this one which combines warning with a rule at least analogous to the guidelines set down by McNabb and Mallory.

But even if there is a waiver, a man can't be detained indefinitely.

Of course, in my case there wasn't even a waiver.

And there was this --

Justice Potter Stewart: How can there be a waiver if these are -- these are absolute constitutional rights of the importance that you emphasize.

How can anybody waive them without the consent of counsel, without the advice of counsel?

Didn't he have a lawyer -- doesn't he need a lawyer before he waive them --

Mr. Victor M. Earle Iii: Well, they're --

Justice Potter Stewart: -- to waive their right?

Mr. Victor M. Earle Iii: They're entitled to waive in other situations.

I -- it's true in court when they want to plead guilty for example if the judge will -- will decline assignment of counsel, the judge will typically interrogate him at some length as you realized there's a significance of his act.

And that is a lot more visible situation and more conducive to -- or being receptive to the idea of a waiver -- a waiver in the police station.

I agree that -- that's probably the worst place you can -- the party alleging waiver has control over the party alleged to have waived.

Justice Potter Stewart: Right.

And so if you're right it would seem to follow, I should think, that he needs a lawyer before he can waive his right to a lawyer --

Mr. Victor M. Earle Iii: Well --

Justice Potter Stewart: -- with the advice of counsel.

Mr. Victor M. Earle Iii: I wouldn't be terribly unhappy with having lawyers in the police station Mr. Justice Stewart, I'd be grateful --

Justice Potter Stewart: Well, I think you would follow naturally from your --

Mr. Victor M. Earle Iii: Well, it doesn't follow naturally because the majority of the Court in Escobedo said these rights can be waived.

Now, I think we have -- we do have to recognize some of the realities of law enforcement.

They do have to investigate, they do have the hurly-burly of crimes that are being committed by the minute, and they do have to operate out of the police station.

I think we're dealing with adults, if we use tape recordings, if we -- the police go to great lengths and indeed do it with a professional spirit.

Well, the spirit not of antagonism but the spirit of recognizing that they are inevitably in an adversary situation and the man they're dealing with has rights and they want to protect their conviction.

They want to make sure they can go to conviction.

They don't throw it out by some careless error.

And I might say this, this is a good example, this case of where the constable certainly didn't blunder.

Here at midnight after all these hours of detention, a member of the Bar marches in with his stenographer.

I mean, it certainly was deliberate.

There's much talk in the briefs, in the SG's brief about the exigencies of the moment, the exigencies of the moment weren't bothering the Assistant District Attorney.

He was just oprating at his convenience at 11 p.m.

Justice John M. Harlan: Is there a claim in this case that the admission was coerced?

Mr. Victor M. Earle Iii: In no sense Mr. Justice Harlan.

I don't think it was coerced at all.

But I'd like to say -- Mr. Justice White asked yesterday, a question about compelling someone to give up his Fifth Amendment rights, his privilege, and I think there's a substantial difference between that and coercing a confession.

It wasn't until 1964 that the -- the Fifth Amendment privilege applied to the States.

And so the Court inevitably all through the -- until the ‘60s really, State convictions are overturned only by looking to the generality of -- the totality of circumstances under the Due Process Clause.

Now, we have specific constitutional guarantee that are applied in root and branch to the States, both the Fifth and the Sixth Amendment rights.

And the -- it's true that the word compel is used in the Fifth Amendment with respect to the privilege.

It's quite different to say that the privilege is cut down or impaired by detention and that a man's will has been so overborne that a confession is enforced from him.

And I must say, I was a little perplexed to read the Solicitor General's brief when they talked about -- the principle, they would have the Court adapt is basically a Brahm principle relating to Fifth Amendment privilege and they support that with citations, the coerced confession cases talking about having one's will overborne and going back to the totality of circumstances.

The trouble with totality of circumstances in this field and that would get us back to Betts and Brady Mr. Justice Fortas that you mentioned yesterday.

Betts against Brady was -- was not a right to counsel decision, it was a due process decision.

I hate to sound too cynical but if we go back to the totality of circumstances, that means that this Court will sit all by itself as it has so many years to overturn a few confession cases that it can take necessarily by the bulk of its work.

And the lower courts won't do their job.

We need some specific guidelines just as Escobedo to help them along the way.

Justice Byron R. White: Like a specific (Inaudible)?

Mr. Victor M. Earle Iii: Well, you can't decide every case in advance Mr. Justice White.

I don't think it's that hard to tell for lawyers certainly or for their trained agents to know when they made up their minds to charge someone.

The English, it seems, they have no trouble with it.

In fact the New York Police for years have had fiction of saying, "I arrested him in such and such a time, that time being long after he was taken into custody."

What they meant was, I made up my mind at that point to charge him.

So, all I'm saying is that they make up their minds and give him a warning.

I can't understand all the ‘fuss and feathers' is about.

Justice Potter Stewart: The charge so far as an -- charged by the Government goes, it's a -- usually a rather formal thing.

It's an indictment or it's a -- an arraignment on a charge that the various procedures in the States vary but that's a -- that's an identifiable event because --

Mr. Victor M. Earle Iii: It's true.

Justice Potter Stewart: -- it's a formal event.

Mr. Victor M. Earle Iii: That's true.

As Judge Friendly said, "We're talking about something here that is short of any defined legal stages” --

Justice Potter Stewart: Yes.

Mr. Victor M. Earle Iii: -- and I agree if that is so.

But, I don't think --

Justice Hugo L. Black: I'm interested in your statement on Justice Harlan that there's absolute -- did you say absolutely no coercion in this case?

Mr. Victor M. Earle Iii: Well, there's no claim of coercion Your Honor.

I certainly --

Justice Hugo L. Black: I suppose it's -- what do you mean by coercion then?

Mr. Victor M. Earle Iii: Well, I --

Justice Hugo L. Black: Do you mean completely free from all compulsion?

Compelled means compulsion, do you mean completely free from any governmental compulsion?

Mr. Victor M. Earle Iii: No, it was not free of that sir.

Justice Hugo L. Black: Why wasn't then?

Mr. Victor M. Earle Iii: Because he was on official custody and questions are being asked of him by official notice.

The question suggests the right to receive answers.

Justice Hugo L. Black: What do you mean then by -- 'was not coerced' is what?

Mr. Victor M. Earle Iii: I mean that it was not coerced in the context of the coercing -- confession cases that this Court has decided --

Justice Hugo L. Black: How about --

Mr. Victor M. Earle Iii: -- until now.

Justice Hugo L. Black: We are not talking about the constitution.

Mr. Victor M. Earle Iii: That's correct.

Justice Hugo L. Black: As well as the confession cases.

Mr. Victor M. Earle Iii: That's right.

Justice Hugo L. Black: What about the compulsion here?

Can you say or do you think that the Fifth Amendment and the amendment protection means, the man must not be under compulsion to give a statement?

Mr. Victor M. Earle Iii: I think it does mean that, that's right.

Justice Hugo L. Black: Well, does that mean free from all compulsions or we just construe the Constitution like you said in Boyd against the United States, giving all liberalities to what its means and what was intended to protect?

Mr. Victor M. Earle Iii: I think we should.

I think you should.

Justice Hugo L. Black: Well, if that is true, can it be said that this man gave the confession free from all compulsion?

Mr. Victor M. Earle Iii: He certainly did in a Fifth Amendment sense.

Justice Hugo L. Black: Well, that's the sense we're talking about.

Mr. Victor M. Earle Iii: That's right Your Honor.

All I'm -- all -- I was merely making a distinction between that and the coercion cases.

Justice Hugo L. Black: You're making it because --

Justice John M. Harlan: Maybe it's about the constitution (Voice Overlap) --

Mr. Victor M. Earle Iii: Yes, under the Due Process Clause.

Justice Hugo L. Black: Maybe it's -- that's right and it didn't refer to compulsion.

That was the idea of looking at all the circumstances --

Mr. Victor M. Earle Iii: That's right.

Justice Hugo L. Black: -- to see if it is too offensive to the Court?

Mr. Victor M. Earle Iii: And look -- it looked --

Justice Hugo L. Black: And the constitutional provision is that they shall not be compelled to give what evidence against themselves.

Mr. Victor M. Earle Iii: That's correct.

But those cases also looked to the subjective mind and volition of the accused and I say that's irrelevant in a Fifth Amendment sense.

Justice Byron R. White: And hence your concern is with the so-called voluntary statement after the accusatory stage?

Mr. Victor M. Earle Iii: That's right.

I think a voluntary statement is out if it comes after the accusatory stage.

No, question about it.

On the other hand (Voice Overlap) --

Justice Tom C. Clark: Now you're getting pretty close to the -- to the rule that prevails by statute in India where no statement of any kind by a person in custody to the police is admissible and inevitable?

Mr. Victor M. Earle Iii: In the absence of a waiver, we would be very close to that except that prior to the accusatory stage, the police wouldn't be entitled to screen, put people on lineups presumably, and even ask questions on the way down to the police station.

They do have a duty to investigate crime and that's certainly a duty we have to recognize.

Justice Hugo L. Black: It seems to me that in this case rather too merged to a certain extent, has been almost complete emphasis on the right to counsel.

Mr. Victor M. Earle Iii: Well, I don't mean to employ --

Justice Hugo L. Black: Rather than emphasis on the facts that the man is not to be -- the Government is not to take confessions from him by compulsion whatever that compulsion is?

Mr. Victor M. Earle Iii: Mr. Justice Black, I think that detention particularly prolonged in a police station is inherently compulsive.

And there's no question, but the corollary that that right lawyer should be able to protect, if he gets the chance, is a privilege against self-incrimination and that was the chance that never arose here.

Justice Hugo L. Black: What if he's only been there 15 minutes and they say, “You are under arrest, we think you committed a murder and we are taking you down.

We are going to interrogate you.”

Do you think he's on any compulsion when they ask him questions?

Mr. Victor M. Earle Iii: I think as a matter of logic, he is.

Justice Hugo L. Black: What logic?

I'm talking about facts.

Mr. Victor M. Earle Iii: Well I'm --

Justice Hugo L. Black: The reality.

Mr. Victor M. Earle Iii: As an advocate, I'm constrained to be bound by this -- opinions of this Court Mr. Justice Black and --

Justice Hugo L. Black: What I --

Mr. Victor M. Earle Iii: -- with no coerced --

Justice Hugo L. Black: But the --

Mr. Victor M. Earle Iii: -- no decision has gone that far.

Justice Hugo L. Black: We are reviewing a whole series of cases with reference to the extent covering protection of the Fifth Amendment and the amendment which provides the right to counsel.

And whatever we've said in the past that there's no reason why we shouldn't discuss and counsel shouldn't discuss, as I feel, how far they believe the Fifth Amendment protection actually goes and not without regard to what we've said in the past.

Mr. Victor M. Earle Iii: Well, I'll answer your question specifically, I think that the privilege only comes into play once the accusatory stage has been reached.

Justice Hugo L. Black: Once -- what?

Mr. Victor M. Earle Iii: The accusatory stage has been reached.

So 15 minutes might not be enough in a given case or it might depending in the facts.

Justice Hugo L. Black: Then you want to get back to Betts versus Brady?

Mr. Victor M. Earle Iii: No, I don't.

I get back to Escobedo v. Illinois.

I'm perfectly happy with that decision.

The reason for that --

Justice Hugo L. Black: Well --

Mr. Victor M. Earle Iii: -- Mr. Justice Black --

Justice Hugo L. Black: But that would depend -- if you're going to determine it in each time on the circumstances, as demanded by the records, it means that someone has just -- has said to you, this Court would take them up one by one and no court in the land can ever know what violates that right, not to be compelled to incriminate himself under -- it comes to us and we're finding such

Mr. Victor M. Earle Iii: Well, that's the last thing that I want as I try to say earlier.

I think that the stage is going to come earlier than --

Justice Hugo L. Black: There's more than we are capable of doing (Voice Overlap) --

Mr. Victor M. Earle Iii: It certainly is.

Justice Hugo L. Black: -- at the present, the capacity to work that (Voice Overlap) --

Mr. Victor M. Earle Iii: It certainly is.

But you see my problem is this, the police have to investigate crime and they have to talk to suspects.

And I think when they talk to a suspect his right to silence is -- may very well be impaired.

But I don't think that it's critical or that they are -- should be debarred from doing that until --

Justice Hugo L. Black: I thought --

Mr. Victor M. Earle Iii: -- they proceeded against us.

Justice Hugo L. Black: What is the difference, a man meeting a man or ask him if he wants to talk with them in some way or other and taking him to the police station or taking him in charge and detaining him of his liberty, quite a difference between voluntary (Voice Overlap) --

Mr. Victor M. Earle Iii: Well, I -- there certainly is and if the Court -- if the Court were to hold that in every case, the accusatory stage once arises, once the man is taken by -- into custody, I would say, hurray.

Justice Hugo L. Black: Well, I do -- I don't --

Mr. Victor M. Earle Iii: I would be perfectly happy with that.

Justice Hugo L. Black: I don't like labels and therefore I don't like accusatory stages.

I like to consider what happens.

But what you're talking about is, as I understand it when you say the accusatory stage, that the Government, State, or Federal has moved against the man, something like they said in the Magna Carta, has moved against him, and from that moment on, they're entitled to due process of law whatever it is.

Mr. Victor M. Earle Iii: That's right.

He's the defendant and I'm -- and I -- if that's the time it should be, if that's -- it's certainly fine with me.

As a matter of fact that -- that really is my point, it's the premise we begin with.

The -- many brace begin with the premise -- there's a need for police questioning.

There certainly is that need but the premise we begin with is that the Constitution recognizes when the man has proceeded against and at that time, the burden shifts to the police.

Argument of William I. Siegel

Mr. William I. Siegel: Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Siegel.

Mr. William I. Siegel: -- may it please the Court.

If the Court will -- for giving personal reference, I'd like to say a word or two about myself.

I've been a prosecutor now for 26 years, ten of those years very busily engaged in the trial of cases and my quick computation 16 years as the head of the Appeals Bureau in the Kings County District Attorney's Office.

But I was a citizen became -- before I became a prosecutor and I trust that I am still a citizen despite this long record of public service.

And it is for this reason that I think some of my colleagues professionally and officially have said things and seemed to me to have made concessions with which I do not agree.

And I think that there has been much -- too much talk of the police on the one side and the defendant on the other side and not enough reference to the rights of the community.

And the -- if I may this is the point of view that I want to espouse here this morning.

May I say in passing, that I have briefed the question of retroactivity, I'm either a prophet nor a prophet's son, but like one of my ancient ancestors, I'm willing to prophesy that there is at least a possibility of some decision coming out of this argument on these cases with which I would perhaps be unhappy.

In any event, which might raise the question of retroactivity, I do not argue with because this case is not -- has not become finalized within the definition in Linkletter, but I brief it because New York obviously has a great interest in the question of retroactivity.

We have thousands of cases I suppose where convictions were based in whole or in part on confessions.

My very able young --

Justice Byron R. White: Don't you have a -- in your own experience any judgment as to what proportion of the cases that not that confessions are used in or that not that confessions are important evidence in, but those cases where without the confession you wouldn't have a case?

Mr. William I. Siegel: We tried to do that when these cases were allowed up by the Court and I think it's obvious that we didn't have very much time in which to --

Justice Byron R. White: In short of it is that you have no -- do you know of any reliable statistics on this now (Voice Overlap) --

Mr. William I. Siegel: No.

We don't have in my judgment that type of empirical data that Mr. Justice Stewart spoke about on which the Court could put very much reliance.

For myself, I put -- I base my argument on the importance of confessions on human nature, and human experience, and human evaluation.

It's a principle of conduct that people don't --

Justice Hugo L. Black: Principle -- of what?

Mr. William I. Siegel: Of conduct, of human life, that people don't, as a rule, confess crimes which they haven't committed.

And it is for this reason that courts have always said that a true, honest, unforced, and uncoerced confession is the highest type of evidence.

And what our point here really is, is that we don't want to be deprived, we don't want to lose the opportunity to get that type of evidence not for ourselves, not for any prosecutorial records, not for the satisfaction of winning a case because I hope we are given the benefit of the presumption that we are above that but for the benefit of the community.

And so I would answer you sir that, if I were fortunate enough to be in the seat of decision, I wouldn't lay too much stress on presently at least unavailable data of that type.

Mr. Nedrud has tried to get some on behalf of all of the district attorneys and in his brief he has some statistics.

Justice Byron R. White: (Inaudible)

Mr. William I. Siegel: Doesn't go very far.

Justice Byron R. White: (Inaudible)

Mr. William I. Siegel: I don't think it really can because after all when we try a case --

Justice Byron R. White: (Inaudible)

Mr. William I. Siegel: -- we don't write up and say, we got this conviction because of a confession and wouldn't have -- it wouldn't have happened if it hadn't been for a confession.

Justice Byron R. White: But you would say, this is a sort of -- of which he was (Inaudible)?

Mr. William I. Siegel: Oh, yes.

Where the con --

Justice Byron R. White: (Inaudible)

Mr. William I. Siegel: Where the confession is the only evidence.

Of course sometimes it happens that the confession is later found to be false.

If one reason or another happens either in this Court as witness (Inaudible) on what happens in the lower court.

But there are cases where only the confession is available to the prosecution.

Justice Abe Fortas: Did you say that's --

Mr. William I. Siegel: But --

Justice Abe Fortas: Did you say that there are cases in which confession is later found to be unmerited?

Mr. William I. Siegel: Yes, there had been.

The records of this Court contained two to -- within my own experience.

And there are others where this is so but if -- I hope there won't be too much importance laid upon this fact because the impropriety to the confession in these specific cases is only a proof of what we all know that no human institution is perfect.

And that we can't expect or require from a prosecutorial system that perfection which is wanting in every other department of human affairs.

Justice Abe Fortas: Mr. Siegel, I suppose it's at least arguable that prior to Magna Carta and prior to the adoption of our own Bill of Rights.

Most people who were convicted were guilty.

Mr. William I. Siegel: I don't know --

Justice Abe Fortas: Nevertheless, it has been the wisdom of the ages that some safeguards are necessary, isn't that so?

Mr. William I. Siegel: Yes, I agree with that.

Justice Abe Fortas: And I supposed that one tries to look at this philosophically and morally in terms of great human adventures towards some kind of truly civilized order that these great provisions in the Magna Carta and our own Bill of Rights were designed to do two things; one, to eliminate even the unusual case of an unjust prior conviction, and two, to layout a standard for the relationship between the State vis-à-vis the individual.

Would you -- do you think that that observation is justified?

Mr. William I. Siegel: Oh, undoubtedly sir.

I had said --

Justice Abe Fortas: That is to say the basic to this whole problem that we're considering however one may came out in a -- in the terribly difficult, vexatious, and tormenting decision is to where the line should be drawn.

However one may come out on that, I think that perhaps one has to consider that what we're dealing with here is not just the criminal and society.

But it's the problem of a -- the relate -- the relationship of the State and the individual in the large and the total philosophical sense viewed in light of the history of mankind whether that history being Magna Carta and the Bill of Rights?

Mr. William I. Siegel: Well, Your Honor if I may refer to your second desideratum first.

There is no question that it is the hallmark of western civilization to use the command of this Court.

It is the command of the Constitution.

It is the desire of all proper thinking people that justice shall prevail according to civilized standards.

My point is that the standard -- well, let me first dis -- second disposed of your first desideratum.

What you posed it seems to me is an ideal that no man shall ever under any circumstances be convicted under an improperly procured confession.

Now, this is an ideal and an ideal by their terms of definition is unattainable.

The only point I make is that because under a standard, which I prefer to any set rules which is what my brilliant young opponent is arguing for, the standard works well and enables courts to perform their true function.

And the true function of the court is to find out where the truth lies.

Justice Abe Fortas: Mr. Siegel, I suppose that even in a extreme Communist state that most people were convicted of a crime were really guilty.

But I equally suppose that you would join me in finding it abhorrent if those people were convicted without having counsel and what we consider to be a fair trial, isn't that right?

So, the point that I'm -- to which I am -- upon which I'm asking you're comment is that, perhaps it is an over simplification and take a look at this problem solely from the point of view of facilitating the task of putting people in jail if they commit a crime, isn't that right?

And in other words, “Does this problem really affect the basic relationship of the individual and the State, and it's really goes beyond the administration of justice?

And if that's been the history of mankind, if one wanted to be, say that, 90% -- if police get a 90% justifiable result where that ought to satisfy and going to be pragmatic and practical about this and say -- where a police convict, secure the conviction of -- and in 90% of the cases it's alright.

That's a very sensible attitude in one point of view.

But perhaps it's the point of view that's been rejected --

Mr. William I. Siegel: Well, Your Honor I hope --

Justice Abe Fortas: -- by --

Mr. William I. Siegel: -- you won't --

Justice Abe Fortas: -- our history.

Mr. William I. Siegel: I hope you won't believe that I disagree with your logical objectives.

The largest social objectives that you posed when I say that there is an immediate objective also and the immediate objective is to protect society because if society isn't protected, if in one degree or another elapses into anarchy because of criminality, then the opportunity to reach this beautiful ideal is gone --

Justice Abe Fortas: Well don't --

Mr. William I. Siegel: -- and it is the function of the policeman --

Justice Abe Fortas: I don't think that I what I referred to something that -- is as fundamental as place ‘beautiful ideal' but I completely agree with you and that's the reason that we're sitting here.

The problem is to reconcile a good many objectives and values that are not totally constant.

But I am a little troubled, I must say.

When I sit here and hear so much reference to this problem, as if it were merely a pragmatic problem of convicting people who did it, who did a crime because there's much more -- there are many more dimensions I suggest to the problem in just that simple statement.

Mr. William I. Siegel: The conviction is only a means, let me say, to a larger end.

And a larger end is the preservation of the peace and dignity of the Commonwealth for the good of everybody who resides in that Commonwealth.

Justice Abe Fortas: And certain religious and moral values.

Mr. William I. Siegel: Well, this is inherent in the -- in our social structure.

And I suppose the problem that these cases pose is -- well, I'll start again.

There's no aphorism.

It's a principle of law as a matter of fact that it is better that 100 men -- guilty men go free then that one -- one innocent man to be convicted.

And this aphorism expresses a point of view with which everybody is in agreement but it isn't a mathematical equation.

There isn't an exact 100 to 1 ratio.

It's an expression of a philosophy and the problem that's before this Court, it seems to me, is just how to keep the balance between the ultimate necessities of a civilized peaceful society and the constitutional rights of a specific defendant.

Justice Hugo L. Black: Don't you think the Bill of Rights had something to do with making that balance?

Mr. William I. Siegel: Yes.

Justice Hugo L. Black: Not any doubt is it, that they said that no person should be convicted whenever he had been compelled to give, why do we have to get into a --

Mr. William I. Siegel: Because --

Justice Hugo L. Black: -- a question of a society.

Mr. William I. Siegel: Because --

Justice Hugo L. Black: -- uses of the ideal civilization, when that's the issue before us?

Mr. William I. Siegel: Because the Bill of Rights --

Justice Hugo L. Black: What that protects against?

Mr. William I. Siegel: The Bill of Rights only says that he shall not be compelled.

Justice Hugo L. Black: That's right.

Mr. William I. Siegel: But the word compelled is not self-defining.

What compelled means comes from this bench.

Now, we -- for many, many years we're told by Your Honor's predecessors and I would say by a great majority of Your Honor's predecessors that compelled meant that you couldn't make a man talk by the exercise of process.

Justice Hugo L. Black: By the what?

Mr. William I. Siegel: The exercise of process.

You couldn't subpoena him into a court and subpoena on the pain of punishment make him talk.

Nobody disagrees with that.

And I take it that we are beginning to lift --

Justice Hugo L. Black: But then here the main argument we have is whether without summoning him to come into Court and talk with that process --

Mr. William I. Siegel: Fine.

Justice Hugo L. Black: -- he can be seized and detained --

Mr. William I. Siegel: Yes.

Justice Hugo L. Black: -- and interrogated --

Mr. William I. Siegel: Yes.

Justice Hugo L. Black: -- while he is in detention.

Mr. William I. Siegel: Now, Escobedo says --

Justice Hugo L. Black: Whether that is -- whether there's any compulsion?

Mr. William I. Siegel: Escobedo says, as I understand it, Escobedo says that, when he asked for a lawyer or a lawyer asks for him to make him to -- a lapsus linguae -- to take from him a statement after the rejection of these request is compulsion.

If I get Your Honor's point of view, it is that you don't have to wait until he is in the accusatorial stage --

Justice Hugo L. Black: I don't know what that is?

Mr. William I. Siegel: -- that when he's --

Justice Hugo L. Black: I don't know what that is (Voice Overlap) --

Mr. William I. Siegel: Well, I --

Justice Hugo L. Black: -- any more than the fact that a citizen --

Mr. William I. Siegel: May I venture the (Voice Overlap) --

Justice Hugo L. Black: -- has been seized by authorities and kept with them against his will.

Mr. William I. Siegel: May I venture a definition?

Justice Hugo L. Black: Yes.

Mr. William I. Siegel: The accusatorial stage is when the police have a prima facie case and it has become their duty, a magistrate or a commissioner being available, to being him to that functionary for arraignment.

This is a true accusatorial stage.

But I have a question, if he is entitled and Escobedo says, he's entitled not to be questioned at that point, why isn't he entitled to be -- not to be questioned at the very point when he's under police restraint so as to stop the probability or even the possibility that by questioning the police will put him in the accusatorial stage?

To me, there's a lack of logic in making this distinction between the investigative or investigatory process on the one hand and the accusatory stage on the other hand, because you don't reach so far as the participation of the arrestee is concerned, you don't reach the accusatory stage until you first had the investigatory stage.

And it is wrong --

Chief Justice Earl Warren: But do we -- do we have the invest -- investigatory stage in this country?

I had known that we could arrest people for investigation?

Mr. William I. Siegel: Well, I am using -- I am using the terminology of Escobedo which makes the distinction.

You can ask people to come in and talk, no question --

Chief Justice Earl Warren: Yes, but --

Mr. William I. Siegel: -- about that and you don't have to invite them in with a lawyer.

Chief Justice Earl Warren: But on the question of the accusatory stage, wouldn't you say that the accusatory stage had commenced when a man found himself locked up in jail?

Mr. William I. Siegel: No.

Chief Justice Earl Warren: Why?

Somebody has accused him or they wouldn't have put him in jail?

Mr. William I. Siegel: Well, somebody may suspect him, but they haven't accused him --

Chief Justice Earl Warren: Have they a right -- have they --

Mr. William I. Siegel: Accusation is they took (Voice Overlap) --

Chief Justice Earl Warren: Have they the right to sus -- put him in jail because they suspect him?

Mr. William I. Siegel: It's an old common law right as I understand it, to stop a person and detain him for a reasonable period of time for -- for discussion and investigation.

I don't think this has ever been disputed.

Chief Justice Earl Warren: This Court ever said you could put -- put men in jail and hold them there during the investigation of the police unless the police arrest him for probable cause?

Mr. William I. Siegel: It's like many other things Your Honor, its relative.

I think it's been recognized as a whole model code on the right to detain, it's in preparation.

New York has passed the --

Justice Hugo L. Black: What is that model code?

Mr. William I. Siegel: Sir?

Justice Hugo L. Black: Is that in the Constitution?

Mr. William I. Siegel: How sir?

No, sir but Your Honor --

Justice Hugo L. Black: I had an idea that the model code so far as protecting people's rights against the Government are concerned, basically speaking had to be found in the Constitution.

Mr. William I. Siegel: I agree with you Your Honor, but may I say this --

Justice Hugo L. Black: And that we long ago got over the idea that this country tried to adopt every old principle of the common law.

Mr. William I. Siegel: I agree with that, but may I also say that what we are talking about in everyone of these cases is a question of definition and what the Constitution means?

Now, I know that the Constitution has been differently defined in different eras and I know also that we are in a period of the history of this Court where the changes in definition are rather accelerated, let me put it that way.

But case by case, the question always is -- is man -- does man live alone or is he a member of this community?

And doesn't the community have some rights under the Constitution?

Now it maybe that what the community had --

Justice Hugo L. Black: Well, nobody could agree with you on that more than I do.

Mr. William I. Siegel: Alright.

Now then, -- then we always reach a question of the accommodation of these rights.

The community must not for it's own benefit take away any of the rights of the individual, but the individual's rights must not be defined beyond the point where they are necessary to protect him from oppression by the community.

Justice Hugo L. Black: What -- would --

Mr. William I. Siegel: And if, from any point of view --

Justice Hugo L. Black: Would it be wrong to sub -- would it be wrong to substitute for that?

The idea that the individual rights should not be taken away from him any further than the Constitution properly defined requires instead of balancing.

Mr. William I. Siegel: Mr. Justice Black, it is with the greatest respect to you that I say this is a matter of semantics because (Voice Overlap) --

Justice Potter Stewart: Of what?

Mr. William I. Siegel: Semantics, because the Constitution does not define, the Bill of Rights does not define what a man's rights in any given circumstances --

Justice Hugo L. Black: That he shall not be compelled --

Mr. William I. Siegel: We have to come here.

Justice Hugo L. Black: -- not to be compelled to be a witness against himself (Voice Overlap) --

Mr. William I. Siegel: We've always had to come --

Justice Hugo L. Black: -- (Inaudible) the definition?

Mr. William I. Siegel: We've always had to come here to find out what compulsion meant.

We didn't know -- well, let me -- I find Mr. -- I've always find -- found Mr. Justice Frankfurter to be not only a great stylist but a great student of the Constitution and it is for this reason --

Justice Hugo L. Black: We agree on that.

Mr. William I. Siegel: Yes, I have no doubt.

I have no doubt that despite your classic divergences of opinion in Adamson against California and others, cases you and Mr. Justice Frank -- Mr. Justice Frankfurter had the highest regard for each other.

But it seems to me that the question in this case is not whether you should have a -- as a practical matter, an equivalent of the McNabb-Mallory Rule for the states, and not just exactly when the right to counsel applies although I think I'll give you an illustration which might almost drive us all to the point where he needs counsel.

The minute he stopped and said, “Will you please come down to the station?

We want to question you?”

It is -- the question is and ought to remain what it has always been and what Mr. Justice Frankfurter said about it in Columbia.

“The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years, the test of voluntariness.

Is the confession of the product of an essentially free and unconstrained choice by its maker?

If it is, if he has willed to confess, it may be used against him.

If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.”

Now, Mr. Justice Frankfurter wasn't talking about a mythical man.

He wasn't talking about a (Voice Overlap) --

Justice Hugo L. Black: He wasn't talking about the Fifth Amendment.

Mr. William I. Siegel: No, I think he was sir, (Voice Overlap) --

Justice Hugo L. Black: Did he say so?

Mr. William I. Siegel: No, it wasn't involved there.

Justice Hugo L. Black: He said due process, didn't he?

Mr. William I. Siegel: Yes.

But the question here is whether the Due Process Clause -- the Fifth Amendment and the cons -- and the Sixth Amendment are going to be brought in under the Fourteenth Amendment and even independently there still remains a question.

Justice Abe Fortas: Mr. Siegel --

Mr. William I. Siegel: Yes, sir.

Justice Abe Fortas: May I ask you this question in view of your long experience.

There have been references many times and some made by (Voice Overlap) of this Court to the effect that -- that lawyers were brought in at the -- at an early stage, pretrial stage, they would always advise the person under -- in custody not to say anything.

Now, there are instances however, where lawyers are -- who represent persons under arrest or in custody, tell their clients that they ought to plead guilty.

Is that -- in your experience, does that -- does that occur quite frequently or do most of the people who plead guilty, that most of the people that plead guilty not represented by counsel?

Mr. William I. Siegel: (Inaudible), we have this right, we've had this right to counsel long before it became a pressing question in Betts against Brady or Powell against Alabama or Gideon or any of it.

Justice Abe Fortas: So that the guilty pleas are entered after consultation with counsel.

Mr. William I. Siegel: Oh, yes.

Justice Abe Fortas: And are guilty pleas rather frequent in your experience?

Mr. William I. Siegel: Oh, yes.

We couldn't dispose off the volume of our business if we didn't have 85 or 90% pleas of guilty.

Justice Abe Fortas: So that let's say 85 to 90 -- 85 or 90% of the instances there are defendants or persons under arrest and their lawyers do tell them to plead guilty.

Mr. William I. Siegel: But of course, Mr. Justice Fortas, this is after the lawyer has learned of the strength of the people's case and I don't think this has any relationship whatever to the problem of the lawyer talking to the defendant at the time of arrest or accusatorial stage.

Justice Abe Fortas: That's exactly what --

Mr. William I. Siegel: Because in my experience and I have dealt with hundreds of lawyers who specialize in the criminal practice, it is a rather obvious indeed to whatever if he comes into the police station, say to his client, “Now you go and cooperate with the District Attorney."

Every one of them and of course there are exceptions but they only prove and test the rules.

Every one of them will say to his client, and how he will say it, it depends only on whether he's a purist or he is (Inaudible) or not.

But in -- actually, he will say to them either to button your lip, don't talk or shut up or anything like that --

Justice Abe Fortas: Well, I understand --

Mr. William I. Siegel: He will dry up this fountain of possible evidence.

Justice Abe Fortas: Yes.

But presently in our experience up to this point I suppose is based on those people who do have lawyers at that stage.

Mr. William I. Siegel: Which stage Your Honor?

Justice Abe Fortas: At the investigatory or accusatorial stage.

Mr. William I. Siegel: And may I ask what Your Honor's experience had been?

Justice Abe Fortas: Well no, I'm --

Mr. William I. Siegel: I understood you say your experience.

Justice Abe Fortas: No.

No, I didn't say that.

Mr. William I. Siegel: I'm sorry.

Justice Abe Fortas: I said that our experience, experience of our legal process has been with limited groups of person or limited numbers of persons who have counsel at that early stage, isn't that right?

That is to say --

Mr. William I. Siegel: That's relatively right.

Justice Abe Fortas: -- that most people don't have counsel at that stage.

Mr. William I. Siegel: That's right.

That's relatively right, very right.

Justice Abe Fortas: Now, so that -- and that -- and I suppose it's not a coincidence between the number of people who plead guilty in the number -- and the number of people who have counsel at the investigatorial or accusatorial stage.

Mr. William I. Siegel: I know Your Honor.

They may plead guilty because their conscience bothers them.

They may plead guilty because they have decided that for one reason or another including perhaps the model of reasoning, there's better off.

They may plead guilty because the District Attorney offers them a quid pro quo.

There are many reasons why a man pleads guilty.

But certainly, it is not a fact that they have been put in the possession -- in the position of pleading guilty only because when they were brought in the police station they had no counsel and just give --

Justice Abe Fortas: Oh, I understand that.

I wasn't making that point.

Mr. William I. Siegel: They must give --

Justice Abe Fortas: I wasn't making that point at all.

I would have --

Mr. William I. Siegel: Then I misunderstood you (Voice Overlap) --

Justice Abe Fortas: -- doing really was trying to ask about -- I was trying to ask the benefit of your experience with respect to this statement that most of the -- so many people are now accepting without any thought and that is to say that lawyers would practically always advice their client not to say anything.

Mr. William I. Siegel: I believe.

Justice Abe Fortas: Alright, and maybe that that has to be broken down in two parts.

One is, what the lawyer's advice to the client is before the lawyers look into the case?

The other is what is the lawyer's advice to the client after the lawyers looked into the case?

And to my mind there is a question as to whether if a lawyer as he frequently does on the basis of what you said tells a client to plead guilty, what's -- must we assume therefore -- must we -- how do we reconcile that fact --

Mr. William I. Siegel: I don't think that (Voice Overlap) --

Justice Abe Fortas: -- that the statement that the lawyer would always tell the client to button his lip as you put it.

Mr. William I. Siegel: I don't think there's any contradiction at all because a lawyer advises his client to plea guilty after he's talked to the District Attorney.

And a fair District Attorney will say to him, “Now look, this is what I have.

I have this witness who'd testify to so and so.

I have a testament from your client, do you want to see it?”

I get people see statements.

And as a matter of fact we now have in New York a statutory provision, Section 813 (f) of our Code that if the District Attorney intends to offer a confession and evident on the trial, he must give reasonable notice to the defendant before the trial and the defendant has the right to a pretrial hearing as to the issue of voluntariness.

Justice Abe Fortas: But would it cripple the law?

Would it -- would it handicap law, materially handicap law enforcement if the person who was under arrest started talking to the police only after his counsel had talked to the state's attorney.

Mr. William I. Siegel: Based on (Voice Overlap) --

Justice Abe Fortas: I'm asking of (Voice Overlap) your observation?

Mr. William I. Siegel: -- based on your experience, Your Honor.

Justice Abe Fortas: Yes.

Mr. William I. Siegel: While of course, there will always be exceptions, it is my honest belief that a warning to a prospective defendant in the police station of bringing a lawyer in the manifold difficulties, practical difficulties, and those (Inaudible) and obvious that this will dry up the -- practically the whole stream of confession.

And I -- it's been put this way, if you want to equalize the defendant and the police, maybe you ought to do it.

But if you want to preserve the rights of an individual I think this Court should be careful as to how it defines its right -- his rights so as not to prejudice the total lives of the total community.

Chief Justice Earl Warren: Thank you Mr. Siegel.

Print this transcript Transcript: 

Argument of Gordon Ringer

Chief Justice Earl Warren: Number 584, California, Petitioner versus Roy Allen Stewart.

Mr. Ringer.

Mr. Gordon Ringer: Mr. Chief Justice, and may it please this Honorable Court.

This case presents with perhaps more poignancy than any of the others that had previously been argued this week.

It's a problem of determining the scope of the investigative powers of the police in the exercise of their function as guardians of society and determining the scope of the constitutional rights of the accused.

Beginning in December 1962, and continuing through January 1963, there occurred in a limited area of the City of Los Angeles a series of extremely brutal crimes.

A lady named Mrs. Wells on her way home from work on December 21, 1962 was waylaid, robbed, brutally beaten by an unknown assailant who made of with her purse and its contents.

Later on with Mrs. Dixon and the same thing occurred to her.

Mrs. Mitchell was waylaid near her home and struck down and killed and her possessions were taken.

Mrs. Miyauchi on her way to work in the early morning was similarly accosted and her possession is taken.

And finally, a Miss Ramirez on the day before the arrest of the respondent here, suffered to similar occurrence.

In the case of Mrs. Mitchell, the victim died.

And the case of the other victims, they suffered long hospitalization periods.

They were fractured skulls, fractured jaws, losses of equilibrium, and certainly an inability to identify the perpetrator of the crime.

Whoever this person was, he made one mistake.

With the assistance of a lady named Lena Franklin, he negotiated some checks which had been stolen from Mrs. Wells at a market.

This occurred on the 22nd of January 1963, the negotiation of the checks.

On the 30th, the officers learned that he had done so.

On the 31st, they located Lena Franklin.

Upon locating her they went with her to find the person who has been introduced to her as Roy Wells, the person who cashed the checks.

She did not know the address.

She did know what the house had looked like because she'd been there.

They went there.

They saw the respondent on the front porch.

They called out his name, Roy Wells, the name he'd signed to the checks.

He went inside the house.

They followed him, they entered, they arrested him for a series of purse snatch robberies, and they came upon [Inaudible].

Justice Potter Stewart: They did what?

Mr. Gordon Ringer: They came (Voice Overlap).

Justice Potter Stewart: (Voice Overlap) what they do --

Mr. Gordon Ringer: I'm sorry, Your Honor if I -- I have a habit of not knowing whether I'm talking loud enough.

Upon entering the house and searching it, incident to the arrest which was a lawfully arrest and it has never been challenge, the officers found a great deal of stolen property.

They found particular items of property which have been taken from each of the individual victims with the robbery or murder at home, that the respondent here was subsequently charged.

In addition, according to the testimony of the arresting officers, they found a number of other purses and a number of other wallets whose providence is not identified in this record.

In the house were five persons.

The respondent Stewart, his mistress or wife as the case maybe, his niece, a lady named Jacky Jackson, and two other gentlemen.

At the time of this arrest, search and seizure, the officers had no means of knowing other than perhaps a bland suspicion perhaps, that the same person had committed all these offenses.

They had no means of knowing that this was not a ring of the five people who were all in this house at the same time.

And this is certainly different than the type of situation envisioned by the Chief Justice yesterday where the police get a vague description of somebody and pick up 90 people who looked like them and take them down to the police station.

So these persons were taken, arrested, taken to the police station.

Justice Potter Stewart: All five of them?

Mr. Gordon Ringer: All five of them, yes.

That's in the record.

The defendant Stewart, Lillian Lara, a man named Burnam, a man named Evans, Jacky Jackson, the niece of the defendant Stewart.

During the ensuing five days, before the production of Stewart before a magistrate, he was questioned as the record shows.

The record shows also the amount and the length of the questioning, approximately a total of two hours and 45 minutes or two hours and 46 minutes as the case maybe.

This was the total amount of the questioning.

There's no claim here he was questioned at late hours continually by relays of police.

There's no claim here that he was denied access to anybody he wanted to see whether a wife, or a friend, or a relative, or counsel, or bondsman or whatever.

There was indeed a claim of coercion at the trial, a claim which was I would suggest devoid of substance.

Chief Justice Earl Warren: You would suggest what?

Mr. Gordon Ringer: It is devoid of substance, a claim solely that the common law – that the confession by the defendant was given in return for a promise to release Lillian Lara, this was rebutted by the officers.

The questions here are whether antecedently to the giving of his confession, the police were constitutionally obliged to give Stewart a warning of a right to remain silent and a right to consult counsel.

There is a second issue which was raised by Mr. Norris in his brief; a claim that there was an unlawful delay in the arraignment and because there was an unlawful delay in the arraignment, the confession being according to Mr. Norris, the product of that unlawful delay, the confession should also have been excluded.

I will address myself first to the first point.

As suggested in the briefs and this is a good phrase.

I like it so I keep saying it. This case is a grandchild of Escobedo and a child of Dorado.

What we are contesting here is the interpretation which the California Supreme Court placed on the Escobedo case, an interpretation of which the California Supreme Court in Dorado and by extension here claimed to be and here, I'm thinking perhaps of Justice Black's use of the word compelled under the Fifth Amendment.

That they said that we are compelled as a matter of federal constitutional law to hold on the basis of the Escobedo case that these warnings must be given, these rights must be waived otherwise a statement no matter how free and voluntary it may otherwise be, may not be received in evidence.

In other words, the California Supreme Court has held that there is a generalized Sixth Amendment right to counsel which emanates from circumstances occurring either at or after the arrest of the accused.

We believe that the true interpretation of Escobedo is the interpretation which was suggested by questioning in oral argument by Mr. Justice Stewart and Mr. Justice Harlan that it is a totality of circumstances case continually throughout that decision in it's limited holding.

Escobedo speaks of under the circumstances here where as here under the facts as here and certainly in that case which was the de -- involved the denial of a request to consult, retain, counsel by a person whose attorney was on the outside trying to get in at the same time.

This was an affirmative act of denial by the State under the circumstances as found by this Court.

We do not therefore read Escobedo as our Supreme Court has done, as creating in any individual, a kind of in coed executory interest which vests at the time of arrest.

It's been suggested and in here, I'm thinking of an article which Mr. Justice Fortas wrote several years ago, that the Right to Counsel begins at the time of arrest because at that time the adversary system commences.

Now does it?

We believe, as does the Solicitor General, that a certain amount of questioning is a social necessity.

That is not only because some prosecutors may say, “We must have confession but also because questioning serves both an inculpatory and exculpatory purpose and let me if I can find in my notes, bring out a few statistics which I think will make this point.

These facts are contained in “Crime in California”, a very compendious book which is issued by the California Bureau of Criminal Justice -- Criminal Statistics Department of Justice.

In 1964, there were approximately 100,000, a little over arrest for felony in California.

Of these, 27.5% were arrested by department were released without the charge.

These are men who were either determined to be innocent by the police or determined there was insufficient evidence to even seek a complaint from the district attorney.

Justice Hugo L. Black: What percent?

Mr. Gordon Ringer: 27.5% were released.

Of those arrested for robbery, 43.1% were released.

Of those arrested for burglary, 31% were released.

Justice Hugo L. Black: Were what?

Mr. Gordon Ringer: Released.

Those arrested for aggravated assault, 28.2% were released.

Homicide and that is the most serious conceivable charge, 20.8%.

Justice Hugo L. Black: What's the overall?

Mr. Gordon Ringer: The overall, 27.5% and it would be of assistance to the Court, I have a copy of the book.

I don't know if it's available in your library but may I lodge it.

Chief Justice Earl Warren: You may.

Mr. Gordon Ringer: I don't have an extra copy for Mr. Norris here but if they're not available in his library, then we could furnish him with the copy.

Chief Justice Earl Warren: Very well.

Mr. Gordon Ringer: The lowest --

Justice Potter Stewart: What is that book?

Mr. Gordon Ringer: It's called “Crime in California”.

It's compiled by the Bureau of Criminal Statistics, Division of Law Enforcement California Department of Justice.

The particular table I'm concerned with is on page 49.

It's table, III/7.

The lowest percentage of releases and I think this is significant forgery and check offenses which I think all will agree are the type of offenses where an investigation after an arrest is the least necessary.

I write a check on a bank in which I have no account.

The check is dishonored.

You check with the bank and you find out I have no account.

There is the offense and the need to investigate after an arrest on probable cause is a minimal importance.

In all of these other matters that I've laid out, something that occurred after the arrest, based on probable cause, resulted in the release of the man.

We do not know whether these gentlemen had counsel in the police station or not.

There's no way of knowing or cross checking, but certainly questioning by the police must be regarded as having played a significant factor in the decision not to charge.

I do not know how significant the factor because we cannot empirically go to that much more deeply.

But I think this makes my point, that questioning serves a dual purpose not merely to get confession because we've got to have confessions in all cases, but it does serve the police function of bringing the charge in trial of those against whom there is evidence sufficient to justify such establishment and not bringing the charge of those who are not guilty and should be released.

Justice Hugo L. Black: May I ask you of this?

Mr. Gordon Ringer: Yes sir.

Justice Hugo L. Black: 28 -- 27.5% meant that that many people had been detained or arrested and interrogated while they were under detention?

Mr. Gordon Ringer: Again Your Honor, I've no means of knowing but let me make that -- let me accept that for the purpose of argument because I believe you are -- you are intending to raise a question which you raised earlier in the -- in the other arguments.

Let us assume so.

I think the tenor of Your Honor's question yesterday based on the Fifth Amendment were simply that under the Fifth Amendment as Your Honor interprets it, under the Fifth Amendment as applied to the States under Malloy and Hogan, a statement made by a person who is under arrest and in the police station is a statement which is compelled within the meaning of the Constitution of the United States.

I think that was the drift of the questioning and the point which you were putting to counsel.

Secondly, I think Your Honor was also concerned with the number of Escobedo cases, it would have to be determined by somebody unless there were a simple and easy to follow tests for determining the admissibility of confessions.

I talked to the Solicitor General on Sunday and was informed that there are/or have been this term 170 Escobedo cases which either are now pending or have been pending.

Justice Hugo L. Black: Where?

Mr. Gordon Ringer: Here and there are probably thousands more elsewhere.

Justice Hugo L. Black: Oh what do you --

Mr. Gordon Ringer: But I would suggest --

Justice Hugo L. Black: What inference would you draw from that?

Mr. Gordon Ringer: The inference I would draw is there are a lot of people who are contending, they're improperly convicted.

I draw no other inference from that because I have not examined the facts of any of the cases.

But to get --

Justice Tom C. Clark: [Inaudible] to be?

In fact the [Inaudible] Escobedo.

Mr. Gordon Ringer: I would say so.

I would say so Your Honor.

Justice Tom C. Clark: Thank you.

Thank you.

Mr. Gordon Ringer: That had not occurred to me.

Justice Hugo L. Black: Might all be possible, you were trying to take advantage of Escobedo and what it held by is it not?

Mr. Gordon Ringer: That depends upon the -- that depends upon the facts of those cases and that's exactly the point I'd like to make, Justice Black and I think I'm sort of bouncing off the question by Justice Harlan or a comment by Justice Harlan that was made yesterday in our argument.

That I don't see how you can say, as a matter of law, that any statement in any case, that is all statements in all cases made by the accused who has been arrested on probable cause and taken down at the station is necessarily by virtue of the fact of arrest and detention alone a compelled statement.

Justice John M. Harlan: You wouldn't deny --

Mr. Gordon Ringer: I think it's a question --

Justice John M. Harlan: You wouldn't deny that he was held obviously in function, would you?

Mr. Gordon Ringer: I do not deny that, no.

But this --

Justice John M. Harlan: But in this question is it not as it always well of the approach you made how liberally you would construe the Bill of Rights amendment just when in duty.

Mr. Gordon Ringer: Well let me -- let me suggest this.

I think that it's a question of fact depending on the totality of the circumstances in each individual case just as under the --

Justice John M. Harlan: Well the provision doesn't say that.

It doesn't say it depends on the totality, but that's the matter to be compelled --

Mr. Gordon Ringer: Yes but if the -- if the provision -- the provision of the Constitution simply says no person maybe compelled to be a witness against himself and it doesn't suggest any particular circumstances in which he is or is not its compendious terminology which must be understood in the context to particular facts.

Now --

Justice John M. Harlan: Well its natural inference, isn't it, that if a man who's taken under arrest.

He's taken under compulsion.

He's expelled to go away and tell him to go (Voice Overlap) --

Mr. Gordon Ringer: What about -- yes, under legal process, yes.

That is if the gun is pointed at me, I don't have much choice.

Justice John M. Harlan: And that the general idea is that a man is arrested only if you detain him in order to await a proper trial in the Court, is that it?

Mr. Gordon Ringer: I would accept that.

I would accept that, but Your Honor, I would still -- I would still suggest that it would be a factual question in each particular case just as under the Fourth Amendment which is a specific constitutional guarantee, the question whether a particular search --

Justice John M. Harlan: What does the Fourth Amendment say?

Mr. Gordon Ringer: Well I don't have the exact wording in mind.

Justice John M. Harlan: Reasonable, doesn't it?

Mr. Gordon Ringer: It says unreasonable searches and seizures.

Justice John M. Harlan: There's a difference in it.

Mr. Gordon Ringer: Alright, there's a difference between reasonable and unreasonable.

Justice John M. Harlan: And there's also a difference between saying no unreasonable search should be made and no witness shall be compelled, no person shall be compelled to be a witness against himself.

Mr. Gordon Ringer: Well they deal with different things but the thing I want to make Your Honor is this.

That here you have a specific term of art in the Fourth Amendment which is applied to the States.

You can't have an unreasonable search and you have an exclusionary role.

And the point that I want to make is, that even there is this specific constitutional guarantee, it's a question of fact in each individual case.

Probable cause is base on the facts.

Justice John M. Harlan: I agree with you -- I agree with you when you say unreasonable.

Mr. Gordon Ringer: Probable cause is based on the facts of each individual case and I would suggest and this ties in also with the -- with the Sixth Amendment interpretation of Escobedo because the farthest reach which has been given to Escobedo that we know of is that of a California Supreme Court which by the inherent force of the logic of its own decisions has come to the conclusion that the Sixth Amendment Right to Counsel vests at the time of arrest.

And under the decisions as set out in our brief, there is a certain pattern that once you start with that presumption, I -- I do not go so far as to say that necessarily you do bring the members of the grand jury into the -- that you bring the members of the grand jury physically into the police station, but the only statements which can be admitted under the California rule are those which are either completely volunteered by the defendant.

In other words, when the officer comes up to me, I pull out the gun that I used and said, “This is the gun I used, I am the man you want”, or those statements which under the California courts' construction of Escobedo are made where there's a possibility of victim they'd still be alive and there is a compelling necessity to find the victim.

And so you find the powers of the police to investigate either for inculpatory purposes or exculpatory purposes reduced to this point that unless you have reason to believe that a victim might still be alive, you can't question.

And the other exception is a statement can be received in evidence if the defendants remorse strikes him so quickly, so quickly, that he begins to blurt things out.

Chief Justice Earl Warren: Mr. Ringer, do you believe --

Mr. Gordon Ringer: Yes Mr. Chief Justice.

Chief Justice Earl Warren: Do you believe on your constitution, the police without having probable cause to the person who has committed the crime can arrest him, put him in jail, and hold him there for the purpose of interrogation?

Mr. Gordon Ringer: As a general principle, I would suggest no however --

Chief Justice Earl Warren: It's a general principle.

Mr. Gordon Ringer: Well I don't know Your Honor --

Chief Justice Earl Warren: A principle is a principle, isn't it?

Mr. Gordon Ringer: I'm sorry Your Honor, I don't know whether that question is antecedent to something that has to do with this case.

I will agree to police should not.

Chief Justice Earl Warren: Well don't try to read our minds of what we might feed you later --

Mr. Gordon Ringer: I'm sorry Your Honor.

Chief Justice Earl Warren: -- let's just (Voice Overlap) when we ask you.

Mr. Gordon Ringer: I agree without qualification, that is true.

Chief Justice Earl Warren: That is true.

Mr. Gordon Ringer: Well because arrest must be made on probable cause.

Chief Justice Earl Warren: Alright, well and if it's made on probable cause, the man is taken to the -- to the jail, he's taken there preliminary to put him on trial, is he not?

Mr. Gordon Ringer: One would assume so, yes.

Chief Justice Earl Warren: Well when does his Right to Counsel attach?

Mr. Gordon Ringer: Well we've understood and that the right to counsel attaches at critical stages of the State proceedings which followed the formal, the filing of formal charges.

Escobedo said bringing the time back prior to the filing of formal charges, that if a man has an attorney who he wants to see and he wants to see that attorney, the police have no right to keep them apart and that's a principle with which we agree wholeheartedly.

Chief Justice Earl Warren: Well do you think that -- that because a man hasn't hired a lawyer, an anticipation of being arrested that he should be treated less generously by the law than the man who perhaps does have reason to believe he'd be arrested and is arrested when he has lawyers.

Mr. Gordon Ringer: If it please the Court, we don't believe and we've perhaps -- we've argued this I think perhaps with some vigor in our brief that the equal protection principles apply this far back.

And I think this was suggested by Justice Black yesterday in a question, “Do the principles of Griffin versus Illinois apply to the State?”

We would suggest they do not.

Society is full of inequities and inequalities of all sizes, sorts, and shapes and we suggest that these principles do not apply at this particular stage.

Chief Justice Earl Warren: And why don't they apply?

Mr. Gordon Ringer: Because we've -- I've always understood and if I'm wrong please I'm subject to correction, that in the judicial process, the Equal Protection Clause applies on the appellate stage certainly, that's the right of a poor man to have a transcript, the right of a poor man to get a brief on appeal.

Everybody is entitled to counsel at trial and there are only a few states who did not conceive that prior to Getty.

We agree that the critical stages of the State proceedings which followed the filing of formal charges that he's entitled to counsel as a matter of right, but the question is not so much whether he should have a lawyer in the station house with him, sitting beside him during interrogation or whether he could telephone, but whether the State is constitutionally oblige to advice him that he has a right to consult an attorney before being questioned by the police.

And that's the fundamental question in the case to which we suggest the answer should be in the negative.

I don't know whether that answered your question Your Honor but I have attempted to.

Justice John M. Harlan: I guess we'd all agree that you need -- that he should have a lawyer when he actually becomes desperately in need of a lawyer, wouldn't he?

Mr. Gordon Ringer: Well, may I ask --

Justice John M. Harlan: When the Government has taken him in and charged.

Mr. Gordon Ringer: Well, that's a flash.

I think what Stewart needed in this case more than a lawyer or anything else is something no longer he could give in and that's a convincing explanation that would exculpate him --

Justice Hugo L. Black: They what?

Mr. Gordon Ringer: A convincing explanation that would exculpate him of how that property came to be in his house.

I would suggest that.

Chief Justice Earl Warren: I don't quite understand your answer.

Mr. Gordon Ringer: We think --

Chief Justice Earl Warren: You say -- you say that if he had not been guilty, he could have convinced the authorities that he was not guilty by explaining how he got that, is that --

Mr. Gordon Ringer: Well that's part of it.

That's part of it, yes.

Chief Justice Earl Warren: And you say that's his obligation when the police have him in the -- in the (Voice Overlap) --

Mr. Gordon Ringer: I don't say he has a constitutional obligation that exculpate himself.

I suggest that was his greatest need under the circumstances in this case.

Chief Justice Earl Warren: And don't you think that at times a man might need a lawyer to have to exculpate himself.

Mr. Gordon Ringer: Well again, there are perhaps times where he might, but the question here, the question again and I do not -- I wish to -- perhaps I wish to focus to use a phrase on the way we deal with the problem and I keep returning that if the person doesn't know he can consult with a lawyer.

Chief Justice Earl Warren: If what?

Mr. Gordon Ringer: If a person doesn't know he consult -- can consult with the lawyer.

Chief Justice Earl Warren: Yes.

Mr. Gordon Ringer: If he doesn't know that he doesn't have to talk; these are factors which go to whether his statements are voluntary.

These are factors which can't be considered at the trial, be considered on appellate review as part of a totality of circumstances in determining whether a man has been denied due process of law at his trial.

And we suggest the test is a compendious one which requires I'm sure a considerable degree of analysis with the facts of particular cases, but that it is a test which this Court should adopt as the test for determining admissibility.

Chief Justice Earl Warren: Well, wouldn't that test be that he was informed of his rights by the authorities before they took a statement from him and then there wouldn't be much question about whether he knew?

Mr. Gordon Ringer: Well there again, this raises a problem, Mr. Justice Warren, a problem which I -- how's my time?

This raises a problem which was suggested in our brief that if he has a right to a warning, then he has the right which must be waived, is that not true?

That's quite clear, that follows.

If there's a warning, there must be a waiver.

Now let us suppose that so and so was taken to the police station and he is read his rights as under the Dorado decision.

He said you have a right not to say anything, anything you say maybe use against you.

You have a right to consult an attorney before you speak to us or -- or at any particular time in addition.

Then the defendant either remains silent, nods his head, exercises one or the other of these rights.

Or, he says words, “Thanks, I know that”, or something.

In any rate, he makes some reply.

If a waiver is required, the test of waiver is the Johnson and Zerbst test, a knowing an intelligent waiver of these rights and the very factors which are involved in a determination whether a right has been knowingly and intelligently waived are those which go to voluntaries.

If the man is a mental defective, the policemen may not know this and even the man, he may read his rights to someone and someone may say, “Alright, I'll go ahead and talk.”

At the trial, perhaps years later on collateral attack, it will come out that this person was one who is incapable of waiving his rights and so you are imparting complicated principles of waiver that are difficult enough to determine in the context of a judicial trial, and I'm thinking here of Henry and Mississippi where you couldn't tell from the record of a trial whether there was a knowing waiver of a particular right to object to particular evidence.

You were imparting these concepts into the police station, Mr. Justice Warren and you're putting them on the shoulders of police who are not sophisticated experts in the criminal law and particularly not sophisticated experts in problems of waiver in constitutional law.

Chief Justice Earl Warren: Do you agree that -- agree that if a man says, “I have a lawyer but I'd like to talk to my lawyer before I talk to you.” Do you agree that in that case the police should interrogate him?

Mr. Gordon Ringer: They certainly should have afforded him an opportunity to get a lawyer if he wants some.

Chief Justice Earl Warren: Suppose he says, “Well I just can't go to a phone, I just can't go to a phone and call because I don't know a lawyer but maybe my friends and relatives can get a lawyer for me sometime during these proceedings and I'd like to have one, is that --

Mr. Gordon Ringer: That's a request for help, isn't it Mr. Justice Warren?

Chief Justice Earl Warren: Yes, a request.

Now is that sufficient in your opinion to prevent the police from further interrogating?

Mr. Gordon Ringer: I think they should afford him that opportunity before going any farther.

Chief Justice Earl Warren: He has a right to that.

Mr. Gordon Ringer: I think he should do that.

He has the right under -- under the Haynes case to call his wife.

If you remember the Haynes case and that was suggested in our argument by the Solicitor yesterday that Escobedo is the lawyer equivalent to the wife in the Haynes.

I think he should be afforded that opportunity and the statutes of California provided even before the Escobedo case.

I'm referring specifically to Section 851 of the Penal Code of the State of California provided that upon arrest, upon arrest and booking and no later than three hours after arrest that a person has the right to make several phone calls to a person who maybe his relative, his friend, his attorney, his bondsman or whatever and these were liberally construed in practice.

If he didn't have the money to make the call, he would be given a dime or whatever it took of public expense.

I would like -- since I don't wish to discuss another problem in the rebuttal that I've not mentioned before, I would simply -- because I wish to reserve time, mention the contention under Wong Sun versus the United States.

There is a claim made by Mr. Norris that there was an illegal detention here which would render inadmissible the statement which was made by Stewart on the last day of his detention.

We submit that the detention was lawful within the statute of California Section 825 whose constitutionality has not been challenged by Mr. Norris.

On that basis, I would wish to submit my opening -- submit my opening argument and then wait for Mr. Norris to reply.

Justice Abe Fortas: Before you sit down --

Mr. Gordon Ringer: Yes.

Justice Abe Fortas: -- may I ask you.

Do you -- as you read the majority opinion of the California Supreme Court, do you think that the Court felt that -- do you think that the Court felt that the result which they have reached in this case whereas compelled by this Court's decision in Escobedo (Voice Overlap) --

Mr. Gordon Ringer: Yes sir, there's no question about that.

There can be no question.

Now this Stewart case is the third -- the third case on this point in the California Supreme Court.

First was Dorado in which they stated they were compelled by the decisions of this Court to so hold.

The second was in the case of Modesto, the third is Stewart and Stewart cites Dorado and it's --

Justice Abe Fortas: I -- I understand that --

Mr. Gordon Ringer: Yes.

Justice Abe Fortas: -- but I'm still asking you whether you feel that as you read the case, whether you think that the California Supreme Court felt that the result in the present case was compelled by this Court's decision in Escobedo or alternatively whether the California Supreme Court may have felt that this was an appropriate, desirable application of Escobedo in its judgment.

That will make the distinction clear to you.

Mr. Gordon Ringer: I think I understand the distinction.

It is one which I do not think can be made because all of the ramifications of the Dorado rule which stem from Escobedo are stated by the California Supreme Court to be emanations in the -- from the Dorado -- from the Escobedo case as they conceive it.

And these are applications, they're not state rules of evidence, and they aren't regarded by the California Supreme Court state rules of evidence.

They're regarded as constitutional compulsions as well.

I think that answers your question.

I hope it does -- I hope that satisfies of what we -- your view of what we believe that the California Supreme Court is done here.

Justice Abe Fortas: Well I wouldn't go quite that far with you but I understand you.

Mr. Gordon Ringer: Yes, that is our position which is all I was attempting to say.

Chief Justice Earl Warren: Mr. Norris.

Argument of William A. Norris

Mr. William A. Norris: Mr. Chief Justice, may it please the Court.

At the outset, I may -- if I may, I would like to follow up on Mr. Justice Fortas' question because as an advocate of course, I was looking for some independent state ground upon which to base a claim that it's' written as granted improvidently.

There was another ground as you know which I did find and argued but that is now behind us.

I was satisfied Mr. Justice Fortas that there was no independent state ground.

That the California Supreme Court did feel compelled to reach the results it reached in this case because of Escobedo.

Whether or not the California Supreme Court would have reached the result anyway in the absence of Escobedo is of course another question.

I think and I will argue this, I hope I would find time to argue this, that the California Supreme Court has taken the correct approach in interpreting and applying Escobedo.

The California Supreme Court in effect said there are three questions.

One is the “accusatory stage” reached at the time of the interrogation.

Two, is the right to counsel which attaches at that point dependent upon a request?

The answer, no of citing Carmony and Crawford (ph).

Thirdly, was there a waiver of the right to counsel?

And the California Supreme Court again correctly I believe, looked to such questions as warning as the age and experience of the accused to determine whether there was a waiver.

I believe, Mr. Justice Fortas that the California Supreme Court was relying squarely on Escobedo.

Justice Potter Stewart: In other words, it felt bound to reach the result we did in this case by the United States Constitution as it understood that Constitution had been interpreted in the Escobedo decision, is that right?

Mr. William A. Norris: That as I read the California Supreme Court's opinion, Mr. Justice Stewart.

Justice Potter Stewart: It did not feel itself free to reach any other conclusion in this case because of the compulsion of the United States Constitution.

Mr. William A. Norris: That's my reading case, yes sir.

And it is my position here that on the facts, the Stewart case raises a very narrow question and that is whether the requested itself was an essential ingredient in the Escobedo case.

I believe of course that constitutional rights cannot possibly turn on such a tenuous ground.

I was interested that the deputy attorney general conceded that if Stewart had requested counsel, presumably the State would have had to furnish him counsel whether he knew a lawyer or not, whether he could afford a lawyer.

Now once you reach that point, I think we can't penalized of course the accused who may not even know enough to ask for a lawyer.

This case is indistinguishable as I say on all of its facts except for the absence of a request.

So to reverse the judgment of the California Supreme Court it seems to me, this Court must either overrule Escobedo or distinguish Escobedo on such a tenuous ground that for all practical purposes I believe it would be overruled.

The State makes an argument that in denying a request, the State took an affirmative act and placed itself between the accused and his lawyer.

Well if it's an affirmative act that we're looking for and I don't really think when it's necessary, we have it when the police prolonged the detention for five days before taking Stewart before a magistrate.

That is an affirmative act keeping Stewart from his lawyer because once he gets into the formal judicial process he's entitled to a lawyer.

I would like to review the facts of the detention just briefly.

He was arrested along with his wife and three other persons who just happened to be at his house on the evening of January 31st.

Justice Potter Stewart: The house was full of stolen goods, wasn't it?

Mr. William A. Norris: The house was full of stolen goods, Mr. Justice Stewart.

Justice Potter Stewart: And the police took to the police station the five occupants of the house.

Mr. William A. Norris: That is correct, Mr. Justice Stewart.

Whether or not the arrest of all five of them was based on probable cause, I don't know.

I can see that the arrest of Stewart was based on probable cause.

Justice Potter Stewart: In his case.

Mr. William A. Norris: In his case and the record is silent on the reasons to why they arrested the other four.

Maybe it was because of the stolen goods.

Justice Abe Fortas: I hope you'll forgive me for interrupting the order of your argument, but I'd like to give fact to what you were talking about a few moments ago and let me try to state to you what's going through my mind now on the basis of what Deputy Attorney General said and I'm going to use different language.

It seemed to me that perhaps voir dire was assigned and as translated in the Escobedo terms is that the investigation, the interrogation should not be considered to focus on the suspect until a point well beyond the arrest, did I make myself clear to this point?

Mr. William A. Norris: Yes, Mr. Justice Fortas.

Justice Abe Fortas: Now yesterday or the day before, the counsel read from the prosecutor's office in Kings County, New York.

As I remember, I suggested that the accusatorial stage begins not upon arrest but when the police have a prima facie case.

I made a note of it and I think that is what he said and there's another suggestion that the -- perhaps the Right to Counsel in Escobedo terms, that is to say one of this focus -- focuses arises at some point after the arrest, but let us say before the formal accusation of the indictment or what not.

And in view of that, what would you say?

Does the distinction between this case in Escobedo turned solely on the request that was made in Escobedo and the lack of a request here.

In other words, is there any difference in time as to the request when the request has to be made in one case rather than the other?

Mr. William A. Norris: If I understand the question Your Honor, if it is whether we adopted the prima facie test, we would have reached the accusatory stage in this case as well as in Escobedo.

I would say clearly yes without regard to the request because here, I believe the police had much more evidence against him than a -- at the time -- by the time of the confession service and even at the time of the arrest than against Escobedo.

They had a personal identification of him as the one who negotiated the checks.

They found the stolen property.

After they took him into custody and questioned him, they got the opinion of a handwriting expert that he did indeed signed those checks.

They finally got some admissions from him that he had possession of some of these articles although he always denied his involvement in any of the crimes.

And finally upon the morning of Tuesday the fifth, the fifth day of detention, the sergeant testified that he opened up the interrogation by saying, “Roy, you killed that old woman and you aren't even sorry.”

Now if that isn't enough for focus in the accusatory stage, I don't know what it is.

Justice Abe Fortas: In other words, if the test should be that the right to counsel attaches at a time when demonstrably the police are out -- the police are out to establish a case against the individual and something beyond just probable cause.

That even if that -- if that should be a test, it's your submission that the facts in this case would fall within the limits of that test --

Mr. William A. Norris: Without question.

Justice Abe Fortas: Is that it?

Mr. William A. Norris: Yes and I do think, Mr. Justice Fortas that the -- I think the Court in Escobedo made them what -- made what I considered to be a good effort to try to answer what I consider to be the hard question in these cases.

It's the question that I -- that Mr. Justice Douglas asked the other day saying at what point in period to trial do Sixth Amendment rights accrue and I think this Court in Escobedo did a good job in trying to come up with some guidelines as to when that point is reached.

I think the California Supreme Court is doing an excellent job in interpreting and applying Escobedo, giving some more flesh to the guidelines that brought here.

Justice Hugo L. Black: May it not be a little confusing to talk about the right to the appointment of counsel at that time?

Of course, it's never been done.

They're not ready on the trial.

But to talk about it to say that means to compete rights to appointment of counsel to continue to represent a man?

Is it not more in line with the facts?

There's a man under detention and held under compulsion.

He has asked the questions that would intend to incriminate beyond the doubt.

And the Court simply said that he shall not be compelled or he shall not be held to have waived his constitutional rights, one of the reasons being that he doesn't have a lawyer who could advice him.

I think maybe the difficulty of getting it because of all that these includes to be -- talk so much about the right to appoint counsel and basically the question here whether you're going to admit a confession given by a person who is held under compulsion without letting a lawyer advice you so that he could determine whether he could waive his rights to -- not to be compelled in discriminating that.

Mr. William A. Norris: Mr. Justice Black, I --

Justice Hugo L. Black: You are arguing I'm sure that we're going to establish a new rule that every time a man gets arrested, he's got to have a lawyer appointed at that moment.

Mr. William A. Norris: I would not argue that Mr. Justice Black and I think that is not required by Escobedo.

Justice Hugo L. Black: It's the section --

Mr. William A. Norris: And I think that's a false argument.

Justice Hugo L. Black: Circumstances that come up which showed he's held in custody when the purpose of holding usually are simply to keep him at the trial.

He's interrogated and the Court had begged what it held that you couldn't hold with that man and waive and right not to be compelled to incriminating himself when he had no lawyer telling him what it means.

Mr. William A. Norris: Mr. Justice Black, I agree with you but I also must part company because I do think it is important to analyze these cases in terms of the Right to Counsel.

Justice Hugo L. Black: Undoubtedly --

Mr. William A. Norris: Because --

Justice Hugo L. Black: With that connection but for what purpose?

Mr. William A. Norris: Well for a number of purposes, Mr. Justice Black, I can't conceive of a situation for example in which there could not possibly be any finding that the compulsion itself caused the man to answer the police officer's question.

I can imagine a case for example where you have a reasonably intelligent layman who maybe advised a Gideon if you will who may be advised by the police that your -- we're going to have to hold you until tomorrow morning when we'll take you before judicial officer.

You don't have any obligation to talk to them.

So you're not going to be held here very long just until we get you before a magistrate.

Now we'd like to talk to you.

You don't have to understand, but we have a few questions and feel free to answer them.

Now what -- the only thing he doesn't know is that he -- is his Right to Counsel.

Justice Hugo L. Black: He knows it by the six policemen around that and he's in custody and can't get away.

Mr. William A. Norris: He does know that, that's right.

The compulsion is that he can't get away but I think that it would be pretty hard to find compulsion that he -- to answer the question.

Justice Hugo L. Black: Say about what you think about compulsion.

Mr. William A. Norris: Yeah.

Well I --

Justice Hugo L. Black: If you think about it as the old drawing had gone that much but you have is here a man who is in custody of the law can't get away with the group of policemen, probably in a little room and they're asking questions but then what I'm suggesting is that maybe we shouldn't go too far in saying that in all of the circumstances and condition, the man who was arrested has a right to a lawyer.

It can be said we are simply holding, we're not going to let any confessions in that were taken at a time when a man was in the custody of the law and he didn't have a lawyer to advice him.

Mr. William A. Norris: Mr. Justice Black I think we end up with the same point because I think my position is that the only effective way to protect the right to remain silent, the right not to testify against yourself is to make sure that he has a lawyer.

It is counsel that is the vehicle for protection of all of the other rights.

I was interested that the American Civil Liberties Union argued this primarily as a Fifth Amendment case on the ground that there maybe some other ways of protecting their right to remain silent, but when it was all said and done, they agreed that the only one they could really think of was the Right to Counsel.

Justice Potter Stewart: Now can't the Escobedo case on analysis be explained in precisely the terms that Mr. Justice Black is suggesting.

After all Escobedo had a lawyer, Danny Escobedo had a lawyer.

He had a lawyer's advice and the lawyer had advised him not to talk and the very fact that Escobedo then did talk after he was confined within the police station, it was a very clear evidence that he'd been compelled to talk, isn't that right because he had been advised by a lawyer not to --

Mr. William A. Norris: But Mr. Justice Stewart I could argue that I think the other way.

That those facts shown that Danny Escobedo waived his right to counsel and waived his right to silence, that his knowledge would under Johnson against Zerbst could be argued that way.

Justice Potter Stewart: Well that would be true if there were any evidence of the waiver but the evidence was all the other way.

He kept asking to see this lawyer who had already given him this advice which was evidence that he did not waive it, did not intend to waive it.

Mr. William A. Norris: Well, that maybe and it maybe a totality of circumstances case, but I question whether this Court would reach a different result just because Danny Escobedo either didn't have a lawyer or didn't know of his right to a lawyer.

Justice Potter Stewart: I wasn't trying to put in your amount any totality of circumstances really because I know that you don't espouse any such theory.

I was merely trying to suggest that the Escobedo decision can be explained in terms of the compulsion of a compelled confession particularly in view of the fact that -- and because of the fact that he did have a lawyer who had advised him not to talk.

Mr. William A. Norris: I suppose Mr. Justice Stewart it could be read that way but I prefer to read it the way the California Supreme Court had.

I might say that --

Justice Abe Fortas: Mr. Norris, excuse me again but as Justice Stewart said you did not espouse a totality of circumstances rule.

I'm not quite clear yet as to what the -- what you consider to be the right rule?

Whether you do or do not regard a totality of circumstances rule is appropriate.

Mr. William A. Norris: I would urge this Court not to adopt the totality of circumstances rule.

Justice Abe Fortas: And what -- what rule would you urge on us?

Mr. William A. Norris: If I may answer that first by saying that even though as an advocate I could go down each of the circumstances cited by the Solicitor General in his brief and argue that on each one of them.

In my case --

Justice Abe Fortas: I understand --

Mr. William A. Norris: – it argues for over reaching as a conclusion clearly.

The view that I would -- that I would urge upon the Court is that the hard question again and the question I think we should grapple with is when a criminal prosecution begins under the Sixth Amendment because it's simply advent of that process that the Right to Counsel comes into play.

Now that's a hard question.

I don't think it's a totality of circumstances question.

Justice Hugo L. Black: I have the right which came in, in advance of that, that the right not to be compelled to be a witness against himself.

Mr. William A. Norris: That maybe Mr. Justice Black but the Fifth Amendment also talks in terms of criminal cases.

So maybe you have the same problem under the Fifth Amendment of determining for all practical purposes when does a person stand accused of a crime by the forces of the State.

Justice Abe Fortas: Well you don't have that problem in terms of the Fifth Amendment privilege against self incrimination, do you?

Mr. William A. Norris: Well I'm not sure about that, Mr. Justice Fortas.

It does talk in terms of in a criminal case.

Now maybe it is arguable of that unless you have reached this point in the proceedings if you don't have a criminal case and the Fifth Amendment cannot apply.

Justice Abe Fortas: That's none of the self incrimination provisions then successfully invoked and I think sustain my decisions of this Court in administrative proceedings?

Mr. William A. Norris: That's right.

Justice Abe Fortas: Congressional hearings and all kinds of things like criminal prosecutions so you don't have that problem if you approach this from the point of view of privilege against self incrimination.

Mr. William A. Norris: Well I don't think this Court can escape that problem, Mr. Justice Fortas.

At some point, this Court must decide what marks the beginning of a criminal prosecution in the Sixth Amendment.

Justice Abe Fortas: Why?

Mr. William A. Norris: Well because --

Justice Hugo L. Black: The Court's held a long time ago that what that means is that the Government shall not compel a man to give evidence against himself anywhere on any circumstances.

So why do we have to determine when the prosecution actually began?

The words of the amendment are that simple.

Mr. William A. Norris: Well --

Justice Hugo L. Black: And it's been construed as meaning what that means the Government mustn't compel a man to give evidence against himself of anywhere and anytime.

Mr. William A. Norris: And I would prefer Mr. Justice Black to avoid the question as to whether during secret police interrogation, it happened to be voluntary or not voluntary because I can conceive of some circumstances in which it might be involuntary or voluntary.

And if it is, then I see no more reason to exclude -- to admit the confession than -- than in the case of arraignment where he's asked to plead.

The difficulty I have is distinguishing White against Maryland and Escobedo.

Those who argue against Escobedo without regard to the question of compulsion, let's assume it's totally voluntary which I think is not the case here, but let's assume that it is.

You mean to tell me we're going to let the police effectively charge the man with crime one night and then interrogate him in the absence of a lawyer, and let him confess his guilt, and make a judgment as to whether he should talk, make a judgment for example as to whether or not he is not committing himself to taking the stand at trial as in the Carnley with the consequence results or -- but in the next --

Justice Hugo L. Black: As far as you -- as far as you were taken by the beliefs those who come down they're going to interrogate you about a murder and they thought you've filed the Committee.

They've number of policeman down -- took you down and interrogated you.

Do you think you need anymore compulsion then that show that it's compelled testimony?

Mr. William A. Norris: That's a hard question.

Justice Hugo L. Black: Aside from anyway --

Mr. William A. Norris: Yes, it's a hard question for all aside from any waiver but what right does he have to waive?

Can he right his -- waive his right to remain silent in the absence of counsel.

Justice Hugo L. Black: We have held many times that a man can knowingly and voluntarily waive a constitutional right.

Mr. William A. Norris: That's right, but I don't -- that's correct, Mr. Justice Black.

Justice Hugo L. Black: What you are going on the assumption is you've got to say we compel beyond all doubt to say that I believe you've got to plead of the counsel in that.

Those we compel beyond any adventure to say that, it is not compulsory or the Government dissented the police agents, take the man in with a large number of -- get him down into a little room by himself and then interrogate him about whether he's guilty or not.

Does not feel compulsion to you and compelling?

Mr. William A. Norris: What Mr. Justice Black he may waive that intelligently.

Justice Hugo L. Black: Well that's -- that's quite difficult, that don't have the waiver.

That's why I said maybe in the Escobedo case, if that was brought in because if the counsel was there and told him that -- that he could intelligently waive it but nevertheless it wouldn't keep it from being compulsive unless he made up his own mind that despite the fact that he's held there secret with these officers, I'm willing to go the limit and give the information.

Mr. William A. Norris: That's what I'm concerned about, Mr. Justice Black.

Justice Hugo L. Black: With my advice of counsel.

Mr. William A. Norris: Provided he had the advice.

Justice Hugo L. Black: No that would -- that would be enough to show it as a waiver.

Mr. William A. Norris: Well, I'd like to say my view is that -- that's the case of indistinguishable from White.

If we won't let him answer the judge's question as to whether he's guilty or not guilty without legal counsel we shouldn't let him confess the night before to police officers who have him in detention.

That's even more.

He had a greater need I should think for a counsel at that point, perhaps even of that arraignment.

Justice Tom C. Clark: [Inaudible]

Mr. William A. Norris: Mr. Justice Clark, I really don't think that follows from my position.

I'd like to discuss for a moment the consequences of --

Justice Tom C. Clark: [Inaudible]

Mr. William A. Norris: But that it seems to me is a choice for the police to make.

In my view, Escobedo does not require the State to provide lawyers in the police station.

What happens after he's arrested and after this process of interrogation began is determined by the State.

If the State wants to engage in that process, then he's accused of a crime, he's all practical purposes these of the defendant and he must be furnished with counsel but if it -- what the State must forgo and the practice that the Escobedo rule will end is the very practice that I think this Court should end and that is secret interrogation of a person accused of a crime by the police and in the absence of counsel.

Justice Potter Stewart: If we should adopt your rule -- your proposal as I understand your proposal then the controversy which shifts to the issue of the question of whether or not the investigatory process has ceased and the accusatory process had began whether the -- whether they're going to focus and certainly that's a very evanescent kind of a concept to try to pursue, isn't it?

Mr. William A. Norris: Not as that evanescent, Mr. Justice Stewart as totality of the circumstances where you have to take into account the education of the accused, the qualities of the accused, his knowledge, his experience, and all the rest.

Justice Potter Stewart: Well that's not the totality of the circumstances, it isn't the rule.

A rule is that coerced confessions are inadmissible and you look at the evidence to see whether the confession was coerced and that's I suggest that at least as workable if not much more constitutionally supportable then trying to chase this will of the west of finding out when there had been a focus.

Mr. William A. Norris: Well Mr. Justice --

Justice Potter Stewart: And that -- and that would be the issue in the -- if your proposal should be accepted, is it not?

Mr. William A. Norris: That is -- that is true but I think of that is a more meaningful guideline than the test to voluntariness or involuntariness and I think that that it will be a more meaningful guideline to the police.

The practical effect of such view as I say will be to discourage secret police interrogation.

And I believe the core of the problem is the incompatibility of the process of detaining an accused purpose -- person for the purpose of secret interrogations.

I think that process is totally incompatible with the safeguard of our accusatorial adversary system.

And if you permit the police to engage in this process, it's so easy to circumvent all of those safeguards.

It becomes a mockery why the police -- the representatives of the states here have argued in effect, we must have the right to interrogate while if we don't interrogate them there, we certainly can't interrogate them in the court room in the absence of counsel.

Well I should say not and they shouldn't be permitted to so easily circumvent the safeguards.

Justice John M. Harlan: I wonder the simplest rule on that basis to be to adopt the English rule that no statement by the police can be used in evidence --

Mr. William A. Norris: Mr. Justice Harlan, that maybe the simplest rule but I do believe --

Justice John M. Harlan: English -- those are the two broad differences between I think it would have been much argued here for two days and what has exemplified because the difference in English practice and our practice.

There in no ways will permit now and we're being asked to the rule that they're very away from it.

Mr. William A. Norris: Well I believe that the California Supreme Court is trying to go down a sensible path somewhere between those two positions, Mr. Justice Harlan and perhaps that's the route we should take for the moment because the California Supreme Court is making a case by case determination.

And in some circumstances where there is a spontaneous confession to the police where there's a -- an effort to -- to explain some circumstances, California Supreme Court is just saying fine that those confessions or admissions are --

Justice Abe Fortas: Mr. Norris, that's exactly where I'm having little difficulty in understanding your position and it maybe that I am responsible for interrupting you so often.

But as I stand as to this point what you have said, you do not believe that the State's obliged to furnish counsel immediately upon the arrest.

Mr. William A. Norris: That's correct.

I think that is not a (Voice Overlap).

Justice Abe Fortas: Do you believe that if after an arrest, the police begin an interrogation.

But then at that stage, in order for the statements of the person in custody to be admissible, he asked to be furnished with the counsel.

Mr. William A. Norris: That is my position.

Yes, Mr. Justice Fortas.

Justice Abe Fortas: In every case -- but now you told us just a second ago that if the -- is valid, if the person in custody volunteers and then that's admissible even if he doesn't have counsel.

Mr. William A. Norris: I wouldn't qualify my response along that line.

I think the police must engage in this process of interrogation.

I think the police must engage that they did in this case in a little adversary proceeding where they're trying to extract from him a confession.

I think that there is nothing to protect an accused against compulsion from him -- within himself.

If he is walking back to his cell with the guard, he might say something that would just volunteer something.

So --

Justice Abe Fortas: You mean you're going to have to help me a little more.

Suppose the man is arrested.

He's not furnished with counsel.

Then the police said something to him along these lines, they say, “Well, did you do it?”

And he says, “Yes, I did.”

Nothing more happens than that except that he is in custody.

Now by giving you that sort of simple illustration, I'd like to see if I can clarify your position.

Mr. William A. Norris: Yes.

I would want to know more facts in -- in the Cutter case I believe it was decided by the California Supreme Court.

The fellow called up and said, “Gee, I just tried to kill someone and I'm going to be on a given corner, come and get me.”

And they arrived and said, “Here's the knife I've used.”

Justice Abe Fortas: Well that was before arrest, but take the same thing after arrest.

Mr. William A. Norris: I'm going to get into the police car.

He was in the police car and they said, “What really happened back there?”

And he said -- he told them that he made a detailed statement and then they interrogated him again at the police station more formal interrogation, the California Supreme Court held that a confession in the police car was admissible because the police hadn't yet engaged in the adversary process.

I --

Justice Abe Fortas: And you agree with that?

Mr. William A. Norris: I think I -- I think that's a -- that's a meaningful line, yes.

Justice Abe Fortas: What about -- suppose he had not telephoned then and then not in fact confessed at that time.

Suppose they'd picked him up on the in front of the house or the place where the crime was committed, put him in the police car and then he had just volunteered these statements?

Mr. William A. Norris: Just volunteered the statements, I think they're admissible just as they would be admissible if he volunteered him to the guard after he left the courtroom indeed and didn't have his lawyer with him.

Justice Abe Fortas: I suppose the police picked him up, put him in the police car and then said, “Did you do it, Joe?”

And then he said, yes.

How about that?

Mr. William A. Norris: It's a hardline Mr. Justice Fortas.

Justice Abe Fortas: I'm not trying to get you to answer the questions for that purpose.

I am trying to get as specifically as I can for my own benefit that what your position is.

Mr. William A. Norris: We were focusing on what I call the hard question and that I think is the hard case.

Justice Abe Fortas: Unhappily we have the hard question.

Mr. William A. Norris: And you have the hard question or it'd be very easy to draw the line at trial but Powell said no.

Sometime in advance of trial and indeed White and Hamilton said that it would be as early as arraignment and Messiah held that it didn't even have to be part of the formal judicial proceeding, that the adversary system was operating and I think that you can't draw the line so formally and that's hard.

Justice Potter Stewart: Beside -- beside excuse me.

I beg your pardon --

Mr. William A. Norris: Yes sir, excuse me.

Justice Potter Stewart: Well are you answering Mr. Justice Fortas' question?

I'm sorry, I didn't mean to interrupt you.

Mr. William A. Norris: I just wanted to say that it would be easier to – simpler to draw the line at one of these cut-off points but I don't think it would be meaningfully because you would so easily permit the police to circumvent all of the safeguards of our society.

Justice Abe Fortas: Well then you are sort of a totality of circumstances man or sort of a sub-totality of sub-circumstances.

Mr. William A. Norris: In the sense that the line will be hard to drop but it doesn't get into all of the factors and the tough factors that turn on the particular individual.

That's what the police are doing and what -- what the process that they're engaged in which becomes the important process.

Yes.

Excuse me, Mr. Justice Stewart.

Justice Potter Stewart: [Inaudible]

Mr. William A. Norris: I'm sorry.

Well --

Justice Tom C. Clark: Well, [Inaudible] standpoint.

Mr. William A. Norris: Well I think the only practical effect of the rule that I think is the Escobedo rule would be to --

Justice Tom C. Clark: [Inaudible]

Mr. William A. Norris: Yes.

The only practical consequence as I believe Mr. Justice Clark, would be to put an end to the practice of interrogating persons accused of crime in a police station in secret without the advice of counsel and I think that practice should be discouraged.

Justice Tom C. Clark: Well if that is in a rural area, I think it come down [Inaudible] lawyer in the whole county.

Mr. William A. Norris: Well, I think the avenue open to the police is not to interrogate him but to take him before a magistrate at the earliest possible time.

I believe it is incompatible with our system to give the police the power to take a man and hold him in secret and interrogate him.

Justice Tom C. Clark: What would you say about a warning of interrogating a lawyer [Inaudible]

Mr. William A. Norris: That would come to a question of waiver Mr. Justice Clark.

I think for a one man, a warning might be effective.

For another man, an experience criminal lawyer, a warning might be unnecessary.

Still for another man who really isn't incapable of making a judgment even with the warning, a warning may not be enough.

I think that's a factor to take into account in determining whether he has made the knowledgeable and intelligent waiver of this (Voice Overlap) --

Justice Tom C. Clark: I'm not taking into account [Inaudible]

Mr. William A. Norris: In my view, that would not be enough.

That would not be enough.

Justice Tom C. Clark: How about by the way you have to do it?

Mr. William A. Norris: Well because I -- my experience with this is in the District Court and I have watched Judge Hall for example interrogate indigents about their rights and it's very tough to waive your right to counsel before Judge Hall and I think it should be.

I think that you have to have evidence of a -- that that man knew what he was doing.

You can't force upon him a right to counsel.

You can't force upon him any of his constitutional rights, but that's a -- that's a -- that is a hard question and that is a totality of the circumstances question it seems to me.

Justice Tom C. Clark: Those who put it [Inaudible]

Mr. William A. Norris: Yes, excuse me.

Justice Tom C. Clark: [Inaudible]

Mr. William A. Norris: Well --

Justice Tom C. Clark: And that the same circumstances occur.

Mr. William A. Norris: Then I think, you may have -- you have essentially the same question.

It's a question of waiver and it may not be --

Justice Tom C. Clark: [Inaudible]

Mr. William A. Norris: Well that's why I would prefer to keep away from the Fifth Amendment because I think it ought to be as under White against Maryland.

It just ought to be whether he had the protection of counsel in making the judgment about whether --

Justice Tom C. Clark: But what it take California to [Inaudible] for investigation purposes.

Apparently, I thought it would be a reason for that, then that means to say that they were [Inaudible]

Mr. William A. Norris: No, Mr. Justice Clark, I would simply require the police to take him before -- take him before a magistrate forthwith.

Justice Tom C. Clark: Without questioning him at all?

Mr. William A. Norris: Without question, that is correct.

Justice Tom C. Clark: Then the entire counsel [Inaudible]

Mr. William A. Norris: Well that's -- that's a judgment for the -- for the individual to make if he feels that he can give a good explanation why he's not guilty.

I should think he could do that pretty easy.

Justice Tom C. Clark: To get back to the very thing I asked him, [Inaudible] counsel, wouldn't that be a matter of judgment and for them they went all assuming with the normal person.

Mr. William A. Norris: I think that's right and as I say, there's no way to keep a man from volunteering a statement.

Justice Tom C. Clark: I was trying to part with counsel and that they just had [Inaudible] then he has made a judgment.

Mr. William A. Norris: Alright, and that -- that maybe a fair position but I think it should turn on whether he's made the kind of waiver of constitutional rights that this Court requires in order to be effective and that very well maybe the practical result.

Chief Justice Earl Warren: Wouldn't the question of whether or not there was a waiver depend to some extent at least upon on the kind of warning that he was given.

Let's take two extremes.

Let's take one where a District Attorney has been arrested for crime and the police said to him now, “Mr. so and so, you -- you know what your constitutional rights are.

You know you don't have to testify and so forth, that would be one situation.

On the other hand, if you take a poor illiterate fellow who couldn't read nor write and who had no friends available or family available and they just went to him and said, “You know what your constitutional rights are.

You don't have to testify and if you do, we can use against you and so forth.”

That in the exact quarters that they -- that they spoke to the District Attorney.

There might be a great difference there, might there not, as to whether there was a waiver if the man after that said answered the questions when they started speaking to him.

Mr. William A. Norris: I would agree with that Mr. Chief Justice and that's why I believe that you can't automatically from the words of the warning.

I think you have to take into account the qualities and the capacity and the education of the accused person himself.

Justice Tom C. Clark: [Inaudible]

Mr. William A. Norris: Well on the -- I'm not quite sure.

I'm never quite sure what that means, Mr. Justice Clark.

I must admit but it -- excuse me.

Justice Hugo L. Black: [Inaudible] on waiver.

Mr. William A. Norris: On waiver, what I -- it does mean certainly that you have to take into account the age, the experience etcetera of the accused, and if that is what is meant by totality of circumstances, yes that must be taken into account.

On the question of waiver, not however on the question as to whether we have effectively reached the accusatorial stage which is just another way of saving -- saying that we have reached the point where the person stands accused of a crime by the forces of the State and that's I believe -- the time I believe when he's entitled to all of his constitutional rights including his right to counsel at anytime that the State proceeds against him in an adversary way.

I have argued as an alternative ground that the judgment should be affirmed because the confession was elicited during a period of illegal detention and I will just state that point because I really think these two arguments tend to run together in terms of their practical effect.

The fact is that Roy Stewart was held for 116 hours before being taken before a magistrate as were four others and we don't know the realms upon which they were arrested.

We do have a rather remarkable line in the record.

The sergeant testified that the other four were released, including Stewart's wife following his confession on the fifth day because there was no evidence to connect them with any crime.

Our view is that under the California law, they must be taken before a magistrate without unnecessary delay.

The State argues a 48-hour maximum in terms to permit a 116 hours.

I think that is -- that you can't possibly reach that conclusion under California law.

Without unnecessary delay means without unnecessary delay and they must explain why he was held all day Friday when the courts were opened then all day Saturday, all day Sunday, all day Monday when the courts were open and they finally got their confession out of them on Tuesday morning and took him before a magistrate that afternoon.

Our position is that the State must establish reasonable ground rules to authorize police to arrest persons and to hold them for a reasonable period until they can get them before a magistrate.

A valid purpose of such a statute may not in our view be to hold him for the purpose of interrogation.

Now if the State -- if the police do not operate pursuant to these ground rules, then the police are operating beyond the law and that we submit is clearly a deprivation of liberty without any process of law much less due process of law and we think therefore that applying Wong Sun the exclusionary rule of McNabb that this confession obtained during a period of illegal detention must be excluded.

Chief Justice Earl Warren: What community was this arrest made?

Mr. William A. Norris: In downtown Los Angeles --

Chief Justice Earl Warren: Downtown Los Angeles.

Mr. William A. Norris: In the Watts area, Mr. Chief Justice in the area of the Watts.

Chief Justice Earl Warren: It's only the -- adjourning of two three minutes you have it (Voice Overlap) --

Mr. William A. Norris: Thank you Mr. Chief Justice.

I would like to include by pointing out that there are issues remaining and since one of the -- this is -- we do not conceive the voluntariness of this confession.

The voluntariness was challenged at trial, instructions were given.

It appears that the requirements of Jackson against Denno were not satisfied.

The California Supreme Court expressly reserved that question for a retrial.

I wanted to point that out.

There is also a question under Griffin against California since the prosecutor commented on his failure to testify on some of the counts.

And in conclusion I would like to say that we must make a choice it seems to me between the adversary accusatorial system or the inquisitorial system and I think those who argue against Escobedo are caught between them.

I think we must recognize that this practice of secret police interrogation why they conducted a little pretrial procedure here against Roy Stewart complete with tape recorders which they turned on at their convenience, complete with an accusing witness, complete with a statement that the handwriting expert testified that -- or had stated that he had signed the checks.

They tried him in the back room of the police station and held him as long as they needed to, to get finally get the confession.

And when he did confess, he confessed to a simple act of purse snatching.

He was very careful to avoid in his confession saying that he had anything to do with any of the other crimes.

He confessed that he run up and he took a purse and he said, he was asked whether he kick her and he said, “I'm not sure, she fell I think and well apparently she hit her head and there was no evidence that this was an intentional beating.

He didn't know the consequences of the felony murder doctrine.

He certainly didn't need a lawyer at that time.

What he confessed to was a single act but he didn't understand what a legal consequence is.

Thank you, Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Ringer, you may proceed with your argument.

Rebuttal of Gordon Ringer

Mr. Gordon Ringer: Thank you, Mr. Chief Justice.

I would like to begin by making one preliminary point which has no relevance whatever to the case, I think, but it was not injected by Mr. Norris, the crimes nor the arrest of Mr. Stewart occurred in the Watts area, so I don't think we find in this case the emotional aura that is associated with that subject.

This was some six miles north of Watts. Secondly, I think we should bear in mind that when the officers arrived at Mr. Stewart's house, they found a house full of stolen goods which were not limited to the exhibits which were introduced in evidence at this trial.

It's been conceded by Mr. Norris that Stewart was arrested on probable cause and it's quite clear from the record that Lillian Lara were arrested on probable cause at the very moment.

Now it's true that the record as to the other three men is totally indeterminate as to -- from the existence of probable cause although they were in a house which is full of stolen goods but this would seem to follow the record being indeterminate precisely because it was Stewart who was on trial and not these other people.

And so there was no occasion to go into the – no occasion, to go into the other circumstances involving them.

Out of this 116 hours delay before the taking of Mr. Stewart, before the magistrate, we've already pointed out the total time of interrogation, consumed was less than three hours, according to the testimony of the investigating officers, all of the other persons involved were questioned about these exhibits as well as the other exhibits that were found in the house.

The ultimate question in this and I think in any case involving the introduction and evidence of a confession or incriminating statement of the accused is whether it was coerced.

I mentioned at the opening argument there was an issue at trial with coercion which was strictly limited to a claim that the officers have promised to release Lillian and return for his confession after he confessed and that she was released and that this was rebutted.

The other claims that have been made by Mr. Norris, I think, are as follows.

That fundamentally, that this man was -- this man made a confession which should not have been received in evidence against him because the right to counsel attached even upon arrest.

We have already stated our views as to the Escobedo decision.

We understand of course that there is a conflict in opinion among the various jurisdictions as to the meaning and scope of Escobedo.

We suggest, however, that our interpretation of it, that it's a totality of the circumstances case is the proper and the correct one.

The next point I'd like to bring out is this.

That the -- this case differs from the other four that were before this Court, in that in each of the other cases, when the police a man they arrested him because of a certain specific crime and any statement that was taken was about a certain specific crime that they've arrested him for.

The officers went here having prob -- went to his house have probable cause, they believe that he committed at least before jury of the Whales check.

They discovered all of these other property which led an envisioned the thought of his possible implication in the series of other brutal crimes, including murder.

Had they not questioned him, there would have been no way to bring home to him or to anyone else in the world these crimes and the police would have been required simply to do this to take the exhibits which were found, return them to the victims and to say, we think or we have a suspicion that your act was murdered by this gentleman, that you were beaten by this gentleman, and that would an end of the case.

There would be a certain social cause, a considerable social cause.

You're dealing in this type of case was an unwitnessed homicide where there are no fingerprints, no technical leads, no magnetic evidence, no electronic evidence, no scientific evidence of any kind and there are certain kinds of crimes which can only be solved by asking questions.

I'm not suggesting that whatever rule that Your Honors will adopt will be one for unwitnessed crimes and another for witnessed crimes, but I'm suggesting that in determining further Stewart's conviction was properly obtained and whether Stewart's confession was properly received in evidence that these factors should be taken into account.

As for the emphasis of Mr. Norris upon the secrecy of the interrogation, I think we can take the word secrecy too far.

This man was in jail.

There's no question about it and he wasn't invited by seven armed officers.

He was arrested and taken into jail.

But there's no -- nothing in the record and no claim made here that he was not allowed to see anybody he wanted to see.

In fact, he wanted to see Lillian Lara, his girlfriend or his wife, whatever you want to call her.

He wanted to, he asked to and he did.

And he even claimed that she came to see him a second time which the officers denied having incurred.

There was we submit on the facts of this case no compulsion in the constitutional sense whether we look at it from the point of view of coercion or from the point of view of -- of the point of view of the -- of the point of view of Fifth Amendment.

With respect to the state statute, we submit the statute was complied within this case, was complied within this case and to hold it was not where you would take a rather giant leap.

The argument is based on Wong Sun versus the United States and this is -- I would suppose a -- a rather muted, a rather muted argument under McNabb and Mallory.

The Mallory rule is, I think, is generally recognized, it's a rule arising under the super Missouri jurisdiction of this Court.

It's never been suggested in any opinion in this Court that it's a rule of constitutional dimension.

So you -- in order to apply it to the State, you would have to take pretty giant step and then of course, it's a decision for you as to make.

It's for mine perhaps to contravene and say it should not be done for Mr. Norris to urge, that's your decision.

It's a pretty giant step to take.

Justice Abe Fortas: Mr. Ringer --

Mr. Gordon Ringer: Yes.

Justice Abe Fortas: Is there any point prior to the signature of the written confession at which you think the Right to Counsel would attest.

Mr. Gordon Ringer: In this case?

Justice Abe Fortas: Well in this case generally.

Mr. Gordon Ringer: Well --

Justice Abe Fortas: You got to say in this case but it didn't -- what are your general observations?

Mr. Gordon Ringer: Well my view is that there is no generalized Sixth Amendment's right to counsel.

There was a denial of assistance who counsel in Escobedo because the State did affirmatively deny him counsel.

Justice Abe Fortas: Well is there a point prior to the signature of the written confession in which your warning should be given?

I'm talking about all of this of course as bearing upon the admissibility of the confession.

Mr. Gordon Ringer: What I'm -- what I wish to say in reply to your question, I hope you will not construe as a sort of getting away from it.

What I say is in determining the inadmissibility of this confession whether or not a warning was given as a factor among the totality of the circumstances.

This is a test proposed by the -- proposed by the Solicitor General in his brief.

But I do not mean to concede or to suggest that that would be the dispositive factor.

It would simply be a factor in determining voluntariness because the ultimate test is one of (Voice Overlap).

Justice Abe Fortas: Voluntariness of what?

Mr. Gordon Ringer: Of the statements --

Justice Abe Fortas: In short, what I'd like to do --

Mr. Gordon Ringer: The voluntariness of a statement made by the -- of a statement made by a person to the arresting or investigating officer.

Justice Abe Fortas: I'm asking your help.

I'm trying to refine these concepts a bit.

The statements are voluntary let us assume or not involuntary let us assume in the sense that the arrested person was not beaten and he was not mistreated or subject to any psychological torture --

Mr. Gordon Ringer: Correct.

Justice Abe Fortas: -– at all, but he was there and he was being interrogated and he did not have counsel --

Mr. Gordon Ringer: That is true.

Justice Abe Fortas: Now is it your position that only if involuntariness of the confession in the sense that there be there psychological or physical maltreatment that that's the only kind of -- that those are the only circumstances that would make a confession involuntary for the relevant purposes.

Mr. Gordon Ringer: Well there are -- may I meditate on that for a moment.

The typical indeed the only cases of the coerced confession that we're familiar with in the records of this Court or in the records of our own courts are cases in which the police did something whether physically or psychologically which under the traditional concept of due process broke this man's will or whatever other formulation maybe chosen to use in a particular case and what I'm suggesting is that certainly the absence of a warning or the absence of counsel would not standing alone render a confession involuntary in the classic sense, but I think it would depend upon the particular facts of the case.

Justice Abe Fortas: I know, but what I'm trying to get at is this.

In your view is the totality of circumstances merely a new way or a special way of saying the -- of asserting the coerced confession rule?

In other words when you say that the rule ought to be totality of circumstances, are you saying anything more than that a confession ought to be admitted unless it is a coerced confession in the traditional sense.

Do we get anywhere by saying totality of circumstances --

Mr. Gordon Ringer: Well totality --

Justice Abe Fortas: Since we've already submitted to the old coerced confession --

Mr. Gordon Ringer: Totality of circumstances is a catch phrase which means that the Court looks at all of the facts.

And I suppose you can attach too much significance to the particular use a catch phrase.

But what I wish to say is simply that the usual test of the coerced confession, the usual test of admissibility is one of coercion and that unless you can say before some specific statement is made as in this case or in some other case, the Sixth Amendment right to counsel is specifically attached then the test does remain one of voluntariness in the traditional sense.

Justice Abe Fortas: Well I'm a bit afraid that what we're -- the issue as personally drawn it seems to me maybe one between the exclusion of admissions on the ground of physical or psychological pressure punishment in the traditional sense.

Or the asserted presence of pressure or force, you know, whatever one might want to call it which flows from the very fact of the arrest, in the absence of counsel and I'm afraid that perhaps that -- perhaps when you say the rule ought to be a totality of circumstances rule than advances much beyond a fact that it is a reassertion of the traditional coerced question rule.

Mr. Gordon Ringer: Well it's not this of the rule which is propounded in the Solicitor's brief in which I am suggesting you.

It's not necessarily in advance and whether -- whether there should be an advance or a stand -- certainly no one claims there should be retreat, but the question is whether there should be an advance or whether the rule is compendiously formulated there is the proper one.

Justice Abe Fortas: Now well all I'm trying to do is to clarify my own mind with your help whether the issue really may not be one of the -- except the pre Escobedo rule in the cases where there's no specific request for counsel or whether Escobedo has some implications that carry the problem beyond the pre-Escobedo rule of coerced confessions.

Mr. Gordon Ringer: Well if it please the Court, I can't deny that there are men of great honor and integrity, men in my Court to believe it does have implications and there is of course, a difference of opinion as to what implications it has.

But we do regard the Escobedo case as having said what it meant and meant what it said.

Whether we do regard the rule contended for by Mr. Norris as an extension and if you believe it should be extended, you sit here as a court to extend it if the question is whether it should be.

Chief Justice Earl Warren: Well Mr. Ringer, isn't there in this rather classical case as to what can happen to people when they're just brought in for investigation and interrogated?

In this case as I understand it, the police went to the home of this man and there happened to be some neighbors or visitors there in the home at the time.

They found some stolen goods in his house and they put everybody in the house in jail and they held him there for five days.

Mr. Gordon Ringer: Yes, they did.

Chief Justice Earl Warren: Just a moment, let me finish please, held him there for five days until one of them confessed and that being Stewart.

Mr. Gordon Ringer: That's correct.

Chief Justice Earl Warren: And when he confessed and only when he confessed did they release the other five who spent five long days and nights in jail because of your interpretation, that under our Constitution, the police have the right to arrest people and hold them on suspicion perhaps and hold them until they get ready to let them go.

Mr. Gordon Ringer: Well if Your Honor please, as I deter to point out, Stewart and Lillian were arrested on probable cause and as to the others we have an indeterminate record.

Chief Justice Earl Warren: I beg your pardon.

Mr. Gordon Ringer: We have an indeterminate record as to the other three people.

I can't make any assertion one way or another.

What grounds of suspicion of these three people the officers had when they went there or got when they talked to these people or did whatever they did at the premises.

You see, I don't know the answers to those questions.

Chief Justice Earl Warren: I understood that we tried the theory, they didn't seem they have no knowledge of these other people, didn't even know they were to be there or anything else.

They just knew that this fellow had passed a check belong to a woman who is killed.

Mr. Gordon Ringer: As that may well be true Your Honor, I'm simply in no position to affirm or deny because I don't know and the record doesn't tell us.

Chief Justice Earl Warren: Yes.

Mr. Gordon Ringer: I would assume that case -- California had an exclusionary --

Chief Justice Earl Warren: But wouldn't you think that the police have any right to do that if the facts were as I stated, that they went there to be -- to get this man because he had passed that check and then they arrested everybody in the house and kept them in jail for five days for investigation.

Mr. Gordon Ringer: If Your Honor please, I believe as you believe, as we all believe that an arrest must be based on probable cause.

Chief Justice Earl Warren: Yes.

Mr. Gordon Ringer: The last time I was here three years ago in Kerr California that was the precise question before the Court, the principle of which everyone agreed upon.

All I say is that California has the exclusionary rule or at least diversion of the exclusionary rule which is quite similar to that rule many years before Kerr and before Mapp and before Kerr.

The record does not show anything other than that they were there and that this house was full of property.

And I can draw no presumption one way or the other as to that because the issue was not explored at trial.

This was the trial of Stewart and the trial whatever the investigation did the trial focus on him to the exclusion of the others except as counsel for either side might have chosen to bring out those of the facts which they wished to.

And so I can't -- I can accept the principle but I have no way of prejudging or post judging the facts.

Chief Justice Earl Warren: Very well.

Mr. Gordon Ringer: I believe that my time is expired but I wish to say one word.

Chief Justice Earl Warren: You may.

Mr. Gordon Ringer: This case is unprecedented.

It is unprecedented because this is the first time that this Court has consented at the request of the State to review a judgment of reversal in a state criminal case involving questions other than statutory of constitutional construction.

It's not normally the practice of counsel who thank the Court for taking over the case.

But this is the first time that's been done to my knowledge in 200 years and I should -- I should thank the Court for hearing our side and contemplating the position which we advanced.

Chief Justice Earl Warren: Well before calling the next case, I would like to thank counsel for -- on both sides for having presented very strongly arguments in all of these cases and I would like particularly to express our appreciation to those who took these cases as charity cases or were assigned to them by the courts below.

Mr. Norris, I know you were appointed by this Court because of indigency of this man and we are very grateful to you for assuming that obligation, it's a public service in our opinion.

Mr. Fawcett, I don't know whether Mr. Fawcett is still here or not but he was appointed by the Court of Appeals in Number 761 and we thank him also and Mr. Earle was appointed through the Legal Aid Society which we asked to argue the case and our thanks go to him.

I'm sure that Mr. Frank and Mr. Flynn in 759 also were doing this as a work of charity and I'd like to express our appreciation to all of them and of course, our appreciation to those who represent the interests of the states.

It's been a good job and of course have been of very much help.

Thank you, gentlemen.