Report No. 69
10.41. Discretionary basis.-
During the late nineteenth century, the Courts had shown great distrust of the police, and were apparently inclined to reject automatically any confession made in police custody.1 But, in 1909, the Court of Criminal Appeal decisively rejected a strict exclusionary rule2 and since that time, despite the adoption of the Judges' Rules, the courts have adhered to the principle of excluding confessions only on a discretionary basis. Where the basis of exclusion is discretionary, it is natural that there will be a diversity-apparent or real-in approach. In some cases, confessions have been admitted even though the circumstances under which they were obtained prompted strong disapproval.3
On the other hand, in some cases confessions have been excluded, because the caution was omitted.4 But courts have often admitted statements even when the caution was lacking, either as a matter of discretion,5 or on the ground that the rules were not violated.- when, for example, a suspect was "invited" to the police station and therefore not technically "in custody"6 In one study the proposition7 was stated that "it is no longer the practice to exclude evidence obtained by questioning in custody." Nevertheless, now that the rules have been clarified, one may expect that the judges will become less willing to overlook violations8 of the rules.
1. See e.g., Reg. v. Male, 16 Cox Cr Cas 689 (Oxford Cir); Reg. v. Gavin, (1885) 15 Cox Cr Cas 656 (Northern Cir).
2. King v. Best, (1909) 1 KB 692 (CCA).
3. See e.g., Rex v. Mills, (1947) 1 KB 297; Rex v. Gardner, (1915) 11 Cr App R 265.
4. Eg., Rex v. Dwyer, (1932) 23 Cr App R 156.
5. R. v. Smith, (1961) 3 All ER 972 (Ct Cr App).
6. Regina v. Watton, (1952) 36 Cr App R 72.
7. Williams Questioning by the police: Some Practical Considerations, 1960 Cr L Rev (Eng) 32E (331).
8. J.C. Smith The New Judges' Rules-A Lawyer's View, 1964 Cr L Rev (Eng) 176 (182).
10.42. Law in the U.S.A.-
Various sources.-In the United States, the rules under which a confession is to be excluded are derived not from one, but from several sources. At one time or other, each of these has assumed prominence.
(a) In the first place, there is the constitutional privilege against self-incrimination.1Historically, this has some importance, it being a view widely held that the rule against "coerced confessions" is fundamentally linked up with the privilege against self-incrimination. This is of importance in relation to cases coming from Federal courts.
(b) In the second place, there is the due process clause of the Constitution.2 This has proved to be the most fertile source of controversies in the last decade or so,3 in cases coming from State Courts.
(c) In the third place, there is the constitutional right to counsel, as judicially interpreted."4-5
(d) In the fourth place, there is the guarantee against unreasonable search and seizure.6
(e) In the fifth place. there is the equality clause of the Constitution, which is of some relevance where counsel was not provided by the State.
(f) Sixthly, there are the Federal Rules of Criminal Procedure imposing the requisite safeguards.
In many cases, more than one of these constitutional and other provisions co-operate, and their combined effect may have to be considered.
1. Fifth Amendment.
2. 14th Amendment (cited, infra), read with 5th Amendment.
3. Set Malboy v. Hogan, and later cases.
4. Sixth Amendment.
5. See Gideon's case, infra.
6. Fourth Amendment.
10.43. Thus, a number of constitutional prescriptive directives to protect the accused, become relevant. For example, the rule excluding from evidence the fruit of unlawful searches or seizures is implied from the fourth and fifth amendments.1 The protections furnished by the due process clause of the fourteenth amendment against the use of "coerced" confessions2 and against the use of evidence obtained through brutality which offends a sense of justice3, are made available by the fifth amendment4 to the accused on trial in a federal court.
1. Weeks v. United States, (1914) 232 US 383.
2. Brown v. Mississippi, (1936) 297 US 278 (1936).
3. (a) Rochin v. California, (1952) 342 US 165;
(b) Cf. Schmerber v. California, (1966) 384 US 757 (770-771) (blood test could deprive the accused of due process).
4. Lane v. United States, 321 F 2d 573 (576) (5th Cir 1963) (dictum), cert. denied: (1964) 377 US 936; Blackford v. United States, 247 F 2d 745 (753) (9th Cir 1957) (dictum), cert. denied: (1958) 356 US 914.
10.44. In addition to these constitutional provisions, there is, of course, the general rule that1 a confession must be excluded from evidence, if it is not voluntary. It is a cardinal principle of American criminal justice that the accused cannot be forced to aid the Government in making the case against him. The guarantees in the Bill of rights emphasise this principle in the constitutional sphere, but the principle would be valid even apart from the constitutional provisions.
1. Cf legislative recognition of this principle in a federal statute passed recently-18 U.S. Code section 3501(a) and (b); see, infra.
10.45. Supreme Court decisions (U.S.A.).-
The case law in the U.S.A. as to confessions is so prolifi.- particularly, recent cases-that even a short review of the decisions of the Supreme Court of the United States would occupy pages. And it must be remembered that the Supreme Court is not a court of general appellate jurisdiction.
10.46. Decisions of the Supreme Court of the U.S.A. in regard to confessions, fall under two broad heads. One line of cases arises from the supervision exercised by the Court over federal officers and inferior federal courts. The second line of cases concerns State Courts. The distinction was important for sometime, though its practical importance has now diminished because of the decisions on the Due Process Clause and its application to the States.
10.46A. Cases from Federal Courts.-
So far as cases coming from the Federal Courts are concerned, a confession might be rendered inadmissible because of violation of the Federal Rules of Criminal Procedure one of which1 requires the arresting officer to take such suspects to the magistrate without unnecessary delay. Confessions secured by Federal officers during the periods of detention were held to be inadmissible in Federal criminal trials, in the case of Mc Nabb v. United States, (1943) 318 US 332. This was followed in the later case of Mallory v. United States. (1957) 354 US 449. For a long time, the "Mc Nabb-Mallory" rule was a favourite topic of discussion.
1. Rule 5(a), Federal Rules of Criminal Procedure.
10.47. Cases from State Courts.-
As to cases from State Courts, the Supreme Court began to deal with the problem of coerced confessions from the point of view of the Due Process Clause (Fourteenth Amendment), and the first important case in this context was of Brown v. Mississippi, (1936) 297 US US 278 (see infra), where the confessions had been secured through physical torture and beating. In Ashcraft v. Tennessee, (1944) 322 US 143, the confessions were obtained through psychological coercion, and the same principle was applied. In Brown v. Mississippi, (1936) 297 US US 278, the Supreme Court quashed the conviction of three negroes by a Mississippi Court.
The confession which had been admitted by the trial court had been obtained by physical torture. Hughes C.J. stated that a trial was a mere pretence when the State authorities secured a conviction depending entirely on confessions obtained by violence. The Supreme Court1 has also quashed convictions in cases where confessions had been obtained by other techniques inspiring fear, such as the threat of mob violence.
The invocation of the due process clause in such cases has been explained on the footing that the admission of confessions so obtained would violate 'the fundamental fairness essential to the very concept of justice'.2 Confessions obtained in this manner carry a very real risk of untrustworthiness,3 but the Supreme Court does not, in such cases, inquire into the effect that the violence or threat had upon the particular prisoner. Demonstration of the means used to extract the confession suffices to exclude it.4
1. White v. TexaS, (1940) 310 US 530.
2. Lisemba v. California, (1941) 314 US 219 (236).
3. Stein v. New York, (1953) 346 US 156 (182) (Jackson J.).
4. Stein v. New York, (1953) 346 US 156.
10.48. In 1964, the Fifth Amendment was held1to apply to the States by virtue of the Fourteenth Amendment. In the famous case of Gideon vs. Wainwright, (1963) 372 US 335" the Sixth Amendments' guarantee of the right to counsel was also held to be applicable to the States, under the Fourteenth Amendment. After these developments, the scope of interference is expanded. Thus, the second line of decisions rests upon the constitutional control of the Supreme Court over State tribunals-in cases in which it is argued that the admission of a confession violates the due process clause of the Fourteenth Amendment2 to the United States Constitution, in relation to cases from State Courts.
1. Mattoy v. Hogen, (1964) 378 US 1.
2. 14th Amendment- nor shall any State deprive any person of life, liberty, or property without due process of law.'
10.49. Recent developments.-
There have been a number of important developments in recent years in the U.S.A., bearing on the admissibility of a pretrial confession in a criminal case. Two decisions Escobedo1 and Miranda2-were pronounced during the sixties. The case of Miranda3 required, as an absolute federal constitutional pre-requisite of the admissibility, in a criminal case, of a confession or other incriminating statement made by an accused in custody to the police, that the police must inform him, prior to interrogation-(i) that he has a right to remain silent, (ii) that any statement which he makes may be used as evidence against him, and (iii) that he has a right to engage counsel. There were four dissenting judgments. It was one of the first rulings of the Warren Court to be slightly modified later. But a substantial part of the propositions laid down still holds good. We shall discuss these cases in some detail.
1. Escobedo v. Illinois, (1964) 12 Lawyers' Edn. 2nd 977 (see infra).
2. Miranda v. Arizona, (1966) 16 Lawyers' Edn. 2nd 694 (see infra).
3. Miranda v. Arizona, (1966) 16 Lawyers' Edn. 2nd 695.
10.50. In the case of Escobedo v. Illinois, (1964) 378 US 478: 12 Lawyers, the accused was taken into custody by the Chicago police, and interrogated about the murder of his brother-in-law. Permission to consult his attorney, though requested, was refused. Subsequently, the accused confessed; and this confession was admitted at the trial, where he was convicted of murder. On appeal to the Supreme Court, the conviction was reversed on the ground that the refusal to allow him to consult his attorney had denied him his right to counsel under the Sixth and Fourteenth Amendments. The confession was, therefore, inadmissible. Speaking for the majority of the Court, Goldberg, J. observed:-
"Where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogation that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as made obligatory upon the States by the Fourteenth Amendment' and that no statement elicited by the police during the interrogation may be used against him at a criminal trial."