EXHIBIT 23 (The Illinois Law Review, owner of the copyright, has courteously granted permission to the Senate Constitutional Rights Subcommittee to reprint the following material as part of these hearings.) The Confession Dilemma in the Fred B. Inbau* several decisions during the past few years the United States Supreme Court has been attempting to effectuate an improvement in the criminal interrogation practices of both federal and state law enforcement officers. The objective, of course, has been a commendable one. In some respects, however, the ways and means invoked by the court are impractical and the results thus far achieved have been inimical to the best public interest. Moreover, as matters now stand, there is considerable uncertainty in the Court's various decisions and opinions as to just what rules of conduct the Court has been attempting to prescribe. Criminal interrogators, both federal and state, are in a quandry as to what is expected of them, and a similar difficulty is being encountered by the various state and lower federal courts when determining the admissibility of confessions. Furthermore, in the pending case of Upshaw v. United States,1 the Supreme Court is now confronted with its own confession dilemma. Prior to 1943 the Supreme Court applied the usual voluntarytrustworthy tests in reviewing both state and federal court convictions involving confessions.2 Briefly stated, the practice of the Professor of Law, Northwestern University. Author of De Detection and Criminal Interrogation, and a former Director of the Chicago Police Scientific Crime Detection Laboratory. 1168 F. (2d) 167 (1948). Certiorari granted June 14, 1948, 334 U. S. 842 (1948). 2 For illustrations of the application of the same tests in both federal and state cases, see Wilson v. United States, 162 U. S. 613 (1896) and Brown v. Mississippi, 297 Ú. S. 278 (1936). Although legal scholars differ somewhat as to which is the historically accurate test-the test of voluntariness or the test of trustworthiness—as a practical matter it seems to make little difference which of these two tests is applied. For example, the type of force, threat, or promise that would be considered sufficient to render a confession involuntary (by a court applying the test of voluntariness) would in all probability be declared sufficient to render a confession untrustworthy (by a court applying the test of trustworthiness); and vice versa. The late Dean Wigmore, in his treatise on Evidence, condemned the test of voluntariness as historically incorrect as well as inadequate. He contended that those who sponsor the test of voluntariness do so under the erroneous impression that there is an association between the confession rule and the privilege against selfincrimination, whereas the fact is that in point of time the origin of the confession rule and the privilege are widely separated. (The confession rule was enunciated about one hundred years after the recognition of the privilege against self-incrimination.) Moreover, the privilege against self-incrimination was designed to cover only statements in court under process as a witness, whereas the confession rule was intended to cover statements both in court and out. See Wigmore, Evidence (3d ed. 1940) §§823-827; 2266. On the other hand, Dean McCormick and others find a kinship between the confession rule and the privilege against self-incrimination, and they see in the test of voluntariness an indication that the rules restricting the use of confessions 28412 0-58-37 Court in such cases was to determine from the trial court record whether the court and jury acted reasonably in holding that the defendant's confession had not been "forced" out of him, or, stated somewhat differently, "had not been obtained in a manner which rendered it untrustworthy." If the Supreme Court decided that the evidence clearly indicated force, and therefore untrustworthiness, the due process clause of either the Fifth or the Fourteenth Amendment would be invoked and the case reversed. On the other hand, however, if the record did not clearly disclose coercion or untrustworthiness, the Court would accept as final the trial court's finding that the confession was voluntary or trustworthy. Although the Supreme Court had examined lower federal court confession cases at an earlier date, it was not until 1936 that a state confession case reached the Court for review. Not long thereafter, however, the Court was to have presented to it a steadily increasing number of state cases, most of which were to involve rather shocking examples of police abuses of accused persons, particularly Southern negroes charged with crimes against white victims. In every one of the latter group of cases the state law enforcement agencies had employed interrogation practices which no self-respecting officer can conscientiously defend. From a reading of the undisputed evidence of police abuses in these various state cases one can find an explanation for the development of the Supreme Court's critical attitude as it was soon to be expressed in the decisions and opinions in the now famous cases of McNabb v. United States and Ashcraft v. Tennessee. In fact, the impression is clear in the first of these two cases that the Court, or at least the justice who authored the opinion, had been waiting impatiently for an early opportunity to invoke some very drastic measures in an effort to curb police interrogation abuses. Since the Court's supervisory power over lower federal courts and federal law enforcement officers afforded the Court greater latitude in imposing its sanctions, the opportune moment to embark upon its crusade would be in a federal rather than a state case, even though the are prompted by a desire to protect the subiect against torture, as well as by a desire to safeguard the trustworthiness of the evidence. For an excellent discussion of the relative merits of these two views, see McCormick. The Scope of Privilege in the Law of Evidence (1938) 16 Texas L. Rev. 447, 452-457. Also see McCormick's very interesting article. Some Problems and Developments in the Admissibility of Confessions (1946) 24 Texas L. Rev. 239. 8 Brown v. Mississippi, 297 U. S. 278 (1936). 4 Chambers v. Florida, 309 U. S. 227 (1940); White v. Texas, 310 U. S. 530 (1940); Ward v. Texas, 316 U. S. 547 (1942). 5 318 U. S. 332 (1943). Also, to the same effect, see the companion case of Anderson v. United States, 318 U. S. 350 (1943), decided on the same day as McNabb v. United States. 6 322 U. S. 143 (1944). latter type of case involved far more frequent instances of police abuses. Then along came McNabb v. United States." In an investigation into the killing of an agent of the Alcohol Tax Unit of the Bureau of Internal Revenue, investigators from that Bureau apprehended five members of the McNabb family. As each of the McNabb brothers was arrested the officers proceeded to interrogate him regarding the killing. Five or six hours after the last McNabb was arrested he confessed upon being told that his brothers had accused him of firing the fatal shot. Later on two others confessed their implication in the crime. A federal court trial resulted in a verdict of guilty, and the defendants ultimately appealed to the United States Supreme Court, alleging that the confessions were improperly admitted into evidence. The Government contended that the confessions were voluntarily given and therefore properly admitted. Ordinarily an issue of the sort raised in the McNabb appeal would have been resolved on the basis of a due process inquiry. Here, however, the Court conceded that since the defendants had not been threatened, abused, or otherwise coerced, there was no problem of constitutional law respecting the confessions and their admissibility, but stated that its reviewing power in federal cases was not confined to the ascertainment of constitutional validity. Mr. Justice Frankfurter, in speaking for the majority of the Court, said that "judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence," and that such standards “are not satisfied merely by observance of those minimal historic safeguards . . . . summarized as 'due process of law'." The Court then explained that upon arresting the McNabb brothers the officers put them in "barren cells" and kept them there for many hours of "unremitting questioning," instead of taking them "before a United States commissioner or a judicial officer, as the law requires, in order to determine the sufficiency of the justification for their detention." Because of this supposed infraction of the law by the officers, the Court held that the confessions obtained during the delay in arraignment should not have been admitted in evidence, and the convictions were accordingly set aside. The Court considered the officers' conduct a "flagrant disregard" of federal laws and expressed the view that if the convictions were upheld the Court would become an accomplice to the wilful dis 7 Supra note 5. 8 318 U. S. 332, 340 (1943). Id. at 344-345. .... obedience of the law; and that although Congress had not explicitly forbidden the use of evidence so procured, if the courts permitted such evidence to stand they would stultify the policy which Congress enacted into law. In opposition to this view, Mr. Justice Reed in his dissent objected to "broadening the possibilities of defendants escaping punishment by these more vigorous technical requirements in the administration of justice." "If these confessions are otherwise voluntary," said Justice Reed, "civilized standards. . . . are not advanced by setting aside these judgments because of acts of omission which are not shown to have tended toward coercing the admissions."10 A rather amazing feature of the McNabb case is the fact that the defendants actually had been arraigned promptly, but the trial court record did not disclose the arraignment and the Supreme Court erroneously assumed that no arraignment had occurred until after the confessions had been obtained.11 Moreover, the fact of actual arraignment was even called to the Court's attention in the Government's petition for a rehearing, but to no avail.12 A retrial of the case resulted in a second conviction which was affirmed by the Circuit Court of Appeals and the case ended there.13 In addition to the Court's mistaken interpretation of the factual situation in the McNabb case, the federal statute relied upon by the Court as embodying a policy which it thought an affirmance of the case would "stultify" was actually enacted for distinctly other reasons than the one assumed by the Court. Its legislative history, to be subsequently discussed in further detail, reveals that the sole purpose of the act was to suppress a practice whereby federal commissioners and marshals were cheating the Government in the matter of fees and mileage expense charges. The issue of interrogation practices and confessions was entirely without Congressional consideration. One year after the Court promulgated its "civilized standards" doctrine for federal cases, a somewhat similar attempt was made regarding state law enforcement practices. In Ashcraft v. Tennessee1 the defendant had been taken late one afternoon to a 10 Id. at 349. The majority of the Court may have been affected by a consideration of the Federal rule regarding the nullification of evidence seized in violation of a constitutional mandate. In the McNabb case situation, however, there was no violation of a constitutional prohibition but only a statutory one. Even assuming, therefore, that the Federal rule excluding illegally obtained evidence is a good one, the same quality of argument cannot be voiced regarding the indirect enforcement of statutory provisions. 11 See Circuit Court of Appeals' decision affirming the conviction of the McNabbs upon their second trial: 142 F. (2d) 904 (C.C.A. 6th, 1944). 12 319 U. S. 784 (1942); also, supra note 11, and 90 Cong. Rec. 9199 (1944). 13 Supra note 11. 14 322 U. S. 143 (1944). morgue where he identified as his wife the body of a woman who had been beaten to death. From the morgue Ashcraft was escorted to the county jail and questioned for several hours, after which he was released without having been placed under formal arrest. Nine days later he was arrested and taken to jail for further questioning. He was then interrogated intermittently for 28 hours, whereupon he told the officers a man named Ware had killed his wife. Ware, who had not been suspected previously, was arrested and he promptly admitted the killing, stating further that Ashcraft had hired him to do it. Ashcraft was confronted with Ware's confession and the interrogation continued for another 8 hours, at the end of which time Ashcraft admitted his guilt but refused to sign a written confession. He repeated his admission of guilt to two business men and to his own family physician, who were called in to witness the confession. The doctor also examined Ashcraft and found him free from any signs of physical abuse. His oral confession was admitted in evidence and his conviction in the trial court was affirmed by the Supreme Court of Tennessee. Upon appeal to the United States Supreme Court, however, that Court, in a six to three decision, reversed the conviction on the ground that the holding of Ashcraft incommunicado, without sleep or rest, for 36 hours of interrogation, was "inherently coercive" and a violation of the "due process" of law provision of the Fourteenth Amendment. In its consideration of the Ashcraft case the majority of the Court made what appears to be an abstract psychological appraisal of a thirty-six hour interrogation and decided that an interrogation of that duration was "inherently coercive," for which reason the confession would be held inadmissible regardless of the effect of the police practices upon the particular defendant and regardless of the otherwise trustworthiness of the confession. The principal objection to the Ashcraft case has been directed not so much to the result in the particular case, but to the general rule laid down in the majority opinion. For instance, in his dissenting opinion in the Ashcraft case, Mr. Justice Jackson severely criticized the majority opinion for excluding a confession "on an irrebuttable presumption that custody and examination 'are inherently coercive' if of some unspecified duration within thirty-six hours." In his analysis of the case, Justice Jackson expressed the view that "despite the 'inherent coerciveness' of the circumstances of Ashcraft's examination, the confession when made was delivered free, and voluntary in the sense in which that term is used in criminal law." In further criticism of the majority opinion of the Court, Jus |