EXHIBIT 12 Syllabus. UNITED STATES v. CARIGNAN. 342 U.S. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 5. Argued October 8, 1951.-Decided November 13, 1951. 1. Having confessed that he assaulted a woman with intent to commit rape, respondent was arrested and duly committed on that charge on a Friday. While in lawful custody on that charge, he was questioned on Saturday and Monday (but not on Sunday) about the murder of another woman during an attempt to commit rape; and he confessed to the murder on Monday, without having been arrested, indicted or committed on that charge. There was no evidence of violence, persistent questioning or deprivation of food or rest. Respondent was told that he did not have to make a statement and that no promises could be made to him in one way or another. Prior to his confession, he was permitted to consult privately with a priest on two different occasions. Held: On the uncontradicted facts in this record, the confession of murder was not inadmissible in evidence under the principles of McNabb v. United States, 318 U. S. 332, and Upshaw v. United States, 335 U. S. 410. Pp. 37-45. (a) So long as no coercive methods by threats or inducements to confess are employed, constitutional requirements do not forbid police examination in private of those in lawful custody or the use as evidence of information voluntarily given. P. 39. (b) The McNabb doctrine was not intended as a penalty or sanction for violation of Rule 5 of the Federal Rules of Criminal Procedure. United States v. Mitchell, 322 U. S. 65. P. 42. (c) Respondent's confession of murder was not given during unlawful detention, because he was being lawfully detained on another charge although he had not been arrested for or charged with murder when the confession of murder was made. Pp. 43-44. (d) This Court declines to extend the McNabb doctrine to statements to police or wardens concerning other crimes while prisoners are legally detained on criminal charges. P. 45. 2. Issues which were in controversy in the Court of Appeals, but which that court did not decide, are available to a respondent in certiorari as grounds for affirmance of the judgment, even though the respondent did not petition for certiorari. P. 38, n. 1. 3. When the admissibility of respondent's confession was in issue in the trial court, the judge committed reversible error in refusing to 36 Opinion of the Court. permit respondent to testify in the absence of the jury to facts believed to indicate the involuntary character of his confession. P. 38. 4. The facts in this record surrounding the giving of the confession do not necessarily establish coercion, physical or psychological, so as to render the confession inadmissible. P. 39. 185 F. 2d 954, affirmed on other grounds. In the District Court for the Territory of Alaska, respondent was convicted of first degree murder in attempting to perpetrate a rape and was sentenced to death. The Court of Appeals reversed. 185 F. 2d 954. This Court granted certiorari. 341 U. S. 934. Affirmed on other grounds, p. 45. Philip Elman argued the cause for the United States. Solicitor General Perlman, Assistant Attorney General McInerney, Robert S. Erdahl and Beatrice Rosenberg filed a brief for the United States. Harold J. Butcher argued the cause and filed a brief for respondent. MR. JUSTICE REED delivered the opinion of the Court. Respondent Carignan was convicted in the District Court for the Territory of Alaska of first degree murder in attempting to perpetrate a rape. Alaska Compiled Laws Annotated, 1949, § 65-4-1. He was sentenced to death. The conviction was reversed by the United States Court of Appeals for the Ninth Circuit. Carignan v. United States, 185 F. 2d 954. The sole ground of the reversal was the admission of a confession obtained in a manner held to be contrary to the principles expounded by this Court in McNabb v. United States, 318 U. S. 332, and Upshaw v. United States, 335 U. S. 410. The case is here on writ of certiorari granted on the petition of the Government. 341 U. S. 934. The question presented by the petition was whether it was error to admit at the trial respondent's confession of the mur Opinion of the Court. 342 U.S. der. The confession was held inadmissible because given before arrest, indictment, or commitment on the murder charge. The confession was given after respondent had been duly committed to jail, Rule 5, Federal Rules of Criminal Procedure, under a warrant which charged that he had, at a time six weeks after the murder, perpetrated an assault with intent to rape. Respondent advances three additional issues to support the reversal of the conviction besides the above point on detention. First. Error, it is argued, was committed by the trial court in admitting the confession because it was obtained by secret interrogation and psychological pressure by police officers. Second. Further error, it is said, followed from a failure of the trial court to submit to the jury, as a question of fact, the voluntary or involuntary character of the confession. Third. Error occurred when the trial court refused to permit respondent to take the stand and testify in the absence of the jury to facts believed to indicate the involuntary character of the confession.' The United States concedes in regard to the third issue that the better practice, when admissibility of a confession is in issue, is for the judge to hear a defendant's offered testimony in the absence of the jury as to the surrounding facts. Therefore, the Government makes no objection to the reversal of the conviction on that ground. We think it clear that this defendant was entitled to such an opportunity to testify. An involuntary confession is inadmissible. Wilson v. United States, 162 U. S. 613, 623. Such evidence would be pertinent to the inquiry on admissibility and might be material and determinative. The refusal to admit the testimony was reversible error. 1 Since these issues were in controversy below, they are available to respondent as grounds for affirmance of the Court of Appeals. Langnes v. Green, 282 U. S. 531, 535, 538; United States v. CurtissWright Corp., 299 U. S. 304, 330. 36 Opinion of the Court. As this error makes necessary a new examination into the voluntary character of the confession, there is no need now to pursue on this record the first and second issues brought forward by respondent, except to say that the facts in this record surrounding the giving of the confession do not necessarily establish coercion, physical or psychological, so as to render the confession inadmissible. The evidence on the new trial will determine the necessity for or character of instructions to the jury on the weight to be accorded the confession, if it is admitted in evidence. Cf. United States v. Lustig, 163 F. 2d 85, 88-89. McNabb v. United States, 318 U. S. 332, 338, note 5. So long as no coercive methods by threats or inducements to confess are employed, constitutional requirements do not forbid police examination in private of those in lawful custody or the use as evidence of information voluntarily given." The following summary of the uncontradicted facts discloses the circumstances leading to the confession. Respondent Carignan was detained by the Anchorage police in connection with the subsequent assault case from about 11 a. m., Friday, September 16, 1949. He was identified in a line-up by the victim, and confessed to the assault. Around 4 p. m. on the same day he was arrested and duly committed for the assault. His trial on the assault charge took place subsequent to this confession. During the time between his detention and commitment for the assault, respondent was questioned by the police about the murder which was the basis of the conviction now under review. A witness who had seen the man involved in the murder and his victim together at the scene of the crime was brought to the police station during this time. From a line-up he picked out respond 2 Ziang Sung Wan v. United States, 266 U. S. 1, 14; Lisenba v. California, 314 U. S. 219, 239; McNabb v. United States, 318 U. S. 332, 346. Cf. Hardy v. United States, 186 U. S. 224, 228. Opinion of the Court. 342 U.S. ent Carignan as one appearing to be the person that he saw on that occasion. Carignan did not give any information about his activities on the day the murder was committed. The night of Friday, September 16, Carignan was lodged in the city jail. The next morning, Saturday, Herring, the United States Marshal, undertook to question respondent in regard to the earlier crime of murder. No evidence appears of violence, of persistent questioning, or of deprivation of food or rest. Respondent was told that he did not have to make a statement, and that no promises could be made to him one way or another. There were pictures of Christ and of various saints on the walls of the office in which the conversation occurred. The Marshal evidently suggested to him that his Maker might think more of him if he told the truth about the crime. The evidence also shows that the Marshal told Carignan that he, the Marshal, had been in an orphan asylum as a youth, as had Carignan. On respondent's request a priest was called. The accused talked to the priest alone for some time and later told the Marshal he would give him a statement. After his return to the jail about 5 p. m. on Saturday, he was left undisturbed. On Sunday he was not questioned, and on Monday morning the Marshal again took respondent out of jail and into the grand jury room in the courthouse. Upon the Marshal's inquiry if he had any statement to make, respondent answered that he had but that he wished to see the priest first. After talking to the priest again for some time, he gave the Marshal a written statement. The statement was noncommittal as to the murder charge. Two other police officers who were with the Marshal and Carignan then suggested that perhaps Carignan would rather talk to the Marshal alone. They withdrew. The Marshal |