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DOUGLAS, J., concurring.

unlawful detention. Such detention was thought to give opportunity for improper pressure by police before the accused had the benefit of the statement by the commissioner. Rule 5 (b), supra, note 8. Upshaw v. United States, supra, 414; McNabb v. United States, supra, 344. Carignan had received that information at his commitment for the assault.

Another extension of the McNabb rule would accentuate the shift of the inquiry as to admissibility from the voluntariness of the confession to the legality of the arrest and restraint. Complete protection is afforded the civil rights of an accused who makes an involuntary confession or statement when such confession must be excluded by the judge or disregarded by the jury upon proof that it is not voluntary. Such a just and merciful rule preserves the rights of accused and society alike. It does not sacrifice justice to sentimentality. An extension of a mechanical rule based on the time of a confession would not be a helpful addition to the rules of criminal evidence. We decline to extend the McNabb fixed rule of exclusion to statements to police or wardens concerning other crimes while prisoners are legally in detention on criminal charges.

The decision of the Court of Appeals is modified and, as modified by this opinion, the judgment is

Affirmed.

MR. JUSTICE MINTON took no part in the consideration or decision of this case.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER join, concurring.

I agree that the judgment of conviction was properly set aside. But my reason strikes deeper than the one on which the Court rests its opinion. There are timehonored police methods for obtaining confessions from an

DOUGLAS, J., concurring.

342 U.S.

accused. One is detention without arraignment, the problem we dealt with in McNabb v. United States, 318 U. S. 332. Then the accused is under the exclusive control of the police, subject to their mercy, and beyond the reach of counsel or of friends. What happens behind doors that are opened and closed at the sole discretion of the police is a black chapter in every country-the free as well as the despotic, the modern as well as the ancient. In the McNabb case we tried to rid the federal system of those breeding grounds for coerced confessions.

Another time-honored police method for obtaining confessions is to arrest a man on one charge (often a minor one) and use his detention for investigating a wholly different crime. This is an easy short cut for the police. How convenient it is to make detention the vehicle of investigation! Then the police can have access to the prisoner day and night. Arraignment for one crime gives some protection. But when it is a pretense or used as the device for breaking the will of the prisoner on long, relentless, or repeated questionings, it is abhorrent. We should free the federal system of that disreputable practice which has honeycombed the municipal police system in this country. We should make illegal such a perversion of a "legal" detention.

The rule I propose would, of course, reduce the "efficiency" of the police. But so do the requirements for arraignment, the prohibition against coerced confessions, the right to bail, the jury trial, and most of our other procedural safeguards. We in this country, however, early made the choice-that the dignity and privacy of the individual were worth more to society than an allpowerful police.

*See, for example, 29 City Club Bulletin of Portland, Oregon, No. 7, June 18, 1948.

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DOUGLAS, J., concurring.

We are framing here a rule of evidence for criminal trials in the federal courts. That rule must be drawn in light not of the facts of the particular case but of the system which the particular case reflects. Hence, the fact that the charge on which this respondent was arraigned was not a minor one nor one easily conceived by the police is immaterial. The rule of evidence we announce today gives sanction to a police practice which makes detention the means of investigation. Therein lies its vice. Hence, we do not reach the question whether a confession so obtained violates the Fifth Amendment.

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MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

Petitioner was convicted of rape in the United States District Court for the District of Columbia, and, as authorized by the District Code, the jury imposed a death sentence. The Court of Appeals affirmed, one judge dissenting. 236 F. 2d 701. Since an important question involving the interpretation of the Federal Rules of Criminal Procedure was involved in this capital case, we granted the petition for certiorari. 352 U. S. 877.

The rape occurred at six p. m. on April 7, 1954, in the basement of the apartment house inhabited by the victim. She had descended to the basement a few minutes previous to wash some laundry. Experiencing some difficulty in detaching a hose in the sink, she sought help from the janitor, who lived in a basement apartment with his wife, two grown sons, a younger son and the petitioner, his nineteen-year-old half-brother. Petitioner was alone in the apartinent at the time. He detached the hose and returned to his quarters. Very shortly thereafter, a masked man, whose general features were identified to resemble those of both petitioner and his two grown nephews, attacked the woman. She had heard no one descend the wooden steps that furnished the only means of entering the basement from above.

Petitioner and one of his grown nephews disappeared from the apartment house shortly after the crime was committed. The former was apprehended the following afternoon between two and two-thirty p. m. and was taken, along with his older nephews, also suspects, to police headquarters. At least four officers questioned him there in the presence of other officers for thirty to forty-five minutes, beginning the examination by telling him, according to his testimony, that his brother had said that he was the assailant. Petitioner strenuously denied his guilt. He spent the rest of the afternoon at headquarters, in the company of the other two suspects and his brother a good part of the time. About four p. m. the three suspects were asked to submit to "lie detector" tests, and they agreed. The officer in charge of the polygraph machine was not located for almost two hours, during which time the suspects received food and drink. The nephews were then examined first. Questioning of petitioner began just after eight p. m. Only he and the polygraph operator were present in a small room, the door to which was closed.

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Following almost an hour and one-half of steady interrogation, he "first stated that he could have done this crime, or that he might have done it. He finally stated that he was responsible. . (Testimony of polygraph operator, R. 70.) Not until ten p. m., after petitioner had repeated his confession to other officers, did the police attempt to reach a United States Commissioner for the purpose of arraignment. Failing in this, they obtained petitioner's consent to examination by the deputy coroner, who noted no indicia of physical or psychological coercion. Petitioner was then confronted by the complaining witness and "[p]ractically every man in the Sex Squad," and in response to questioning by three officers, he repeated the confession. Between eleven-thirty p. m. and twelvethirty a. m. he dictated the confession to a typist.

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