EXHIBIT 27 (The Stanford Law Review, owner of the copyright, has courteously granted permission to the Senate Constitutional Rights Subcommittee to reprint the following material, from vol. 5, Stanford Law Review, April 1953, pp. 459-479, as part of these hearings.) The Privilege Against Self Incrimination: Does It Exist in the Police Station? Two doctrines one a rule of evidence, the other a rule of constitutional law-may operate to exclude evidence obtained by the police in the informal setting of the police station. The rule of evidence is the confessions doctrine, which keeps out confessions which are not voluntary.' The rule of constitutional law is the notion of due process, which ordinarily preserves those things essential to a "scheme of ordered liberty." Each, in its own way, may help to discourage the "third degree." What of the privilege against self incrimination? Does this rule of constitutional law give the accused any protection in the police station? Assume that the privilege against self incrimination does exist in this informal environment. The confessions-doctrine would be raised to the stature of a constitutional rule. Moreover, it would no longer be necessary to draw a fine line between a confession and a mere admission. The constitutional privilege would operate to exclude either where coercion was involved. The distinction between a confession and an admission would be important, however, in at least two instances. First, where promises or inducements short of coercion evoke an incriminating statement, the privilege against self incrimination would probably be held to be waived. Since the privilege does not operate to keep out the evidence, it becomes important to differentiate an admission from a confession; for if the statement is a confession, it is involuntary and inadmissible. Second, the privilege would not operate where one unconnected with the government forces a person to make an involuntary statement. Again the distinction between confessions and admissions is vital, for if the statement amounts to a confession the evidence may be excluded. Extending the privilege against self incrimination to an informal setting would affect another evidentiary rule-the doctrine of implied admissions. It is doubtful that the silence of an ac 1. 3 WIGMORE, EVIDENCE §§ 815, 822 (3d ed. 1940). 2. U.S. CONST. AMENDS. V, XIV. 3. 3 WIGMORE, Evidence §§ 834-36 (3d ed. 1940). 4. 8 id. at 325. And see Barron v. Baltimore, 7 Pet. 243, 247 (U.S. 1833); ROTT SCHAEFER, CONSTITUTIONAL Law 724 (1939). 5. 3 WIGMORE, Evidence §§ 827-30 (3d ed. 1940). 6. 2 id. § 292; 4 id. §§ 1052, 1071. cused in the face of interrogation could be put into evidence to show an admission. Finally, the presence of the privilege in the police station would give a suspect a broader base for raising constitutional objections to the introduction of his statements in evidence. If a statement was offered under circumstances which violated due process notions, the same coercion would enable the prisoner to claim that his privilege against self incrimination had been violated. Here we shall attempt to discover whether or not the privilege does exist in an informal setting under present case law, with particular emphasis on California and federal law. The merits of the issue will also be explored. I. SETTING OF PROBLEM The privilege against self incrimination is ordinarily employed in some type of formal proceedings.' It usually comes into operation when a witness refuses to answer a question or when a criminal defendant refuses to take the stand. Contrast the use of the privilege in the informal setting of the police station. It is not needed to shield a reluctant suspect from the questioning of officers. The accused may simply remain silent in the face of interrogation. There is no legal sanction compelling him to talk comparable to the sanction of contempt which exists in the courtroom setting. How, then, does the privilege become important? may be vital in connection with statements the accused makes while under arrest. The privilege may prevent the use of these statements in evidence, where no other rule of evidence or of constitutional law would keep them out. It Often the confessions doctrine or the requirements of procedural due process will make it unnecessary to formulate the precise scope of the privilege against self incrimination. If a confession is involuntary, it will not be received in evidence because the exception to the hearsay rule admits only voluntary confessions. At some point, the procedural due process requirements of the Fifth and Fourteenth Amendments operate to exclude coerced confessions or admissions." In these instances the courts 7. See 8 WIGMORE, EVIDENCE § 2252 (3d ed. 1940). 8. See 3 id. §§ 815, 822. 9. For examples of conduct considered to be in violation of the procedural due process requirements of the Fourteenth Amendment, see Harris v. South Carolina, 338 U.S. 68 are able to avoid discussion of the privilege, for it is unnecessary to reach the question. But in other situations the precise scope of the privilege can be vital. Many courts draw a fine distinction between a confession and an admission.10 While definitions of a confession vary," some would limit its meaning to an acknowledgment of guilt of some essential element of the crime;12 an admission is the disclosure of other incriminating facts from which guilt may be inferred." This distinction is important because many courts say that the requirement of a preliminary showing of voluntariness applies only to confessions. There is no need for a preliminary showing that an admission is voluntary. 14 Suppose a situation in which a prisoner is given the "third degree." After a period of protracted questioning, he admits an incriminating fact which would not constitute a technical confession; it is a mere admission. The questioning is of such a nature that it does not "shock the conscience" so as to violate notions of procedural due process. If the privilege against self incrimination is available, the evidence may nevertheless be excluded at a subsequent trial. In another common fact situation, the arrested suspect is asked a series of accusatory questions and either refuses to answer or gives an evasive response. The state wants to introduce evidence of the conduct of the accused for the purpose of imputing an admission. This type of evidence-an "implied admission"—is rec (1949); Turner v. Pennsylvania, 338 U.S. 62 (1949); Watts v. Indiana, 338 U.S. 49 (1949); Haley v. Ohio, 332 U.S. 596 (1948); Malinski v. New York, 324 U.S. 401 (1945); Ashcraft v. Tennessee, 322 U.S. 143 (1944); Ward v. Texas, 316 U.S. 547 (1942); Vernon v. Alabama, 313 U.S. 547 (1941); Lomax v. Texas, 313 U.S. 544 (1941); White v. Texas, 310 U.S. 530 (1940); Canty v. Alabama, 309 U.S. 629 (1940); Chambers v. Florida, 309 U.S. 227 (1940); Brown v. Mississippi, 297 U.S. 278 (1936); cf. Rochin v. California, 342 U.S. 165 (1952). For conduct which the Court felt did not violate the Fourteenth Amendment, see Stroble v. California, 343 U.S. 181 (1952); Lyons v. Oklahoma, 322 U.S. 596 (1944); Lisenba v. California, 314 U.S. 219 (1941). Similar tests would apply in cases where the Fifth Amendment was applicable. 10. 4 WIGMORE, Evidence § 1050 (3d ed. 1940). 11. See, e.g., Commonwealth v. Haywood, 247 Mass. 16, 18, 141 N.E. 571, 572 (1923) ("a direct acknowledgment of guilt”); cf. Wilson v. State, 84 Ala. 426, 427, 4 So. 383 (1887) ("narratives of the facts . . . which tend to implicate the defendant in the crime"). [Emphasis added.] 12. 3 WIGMORE, EVIDENCE § 821 (3d ed. 1940). 13. 4 id. §§ 1048, 1050. 14. Whitehead v. State, 16 Ala. App. 427, 428, 78 So. 467, 468 (1918); State v. Romo, 66 Ariz. 174, 186, 185 P.2d 757, 765 (1947); State v. Garney, 45 Idaho 768, 773, 265 Pac. 668, 670 (1928); State v. Masato Karumai, 101 Utah 592, 602, 126 P.2d 1047, 1052 (1942); 3 WIGMORE, EVIDENCE §§ 821, 860 (3d ed. 1940). 16 ognized under the admissions exception to the hearsay rule." Not all courts admit such evidence: The mere fact of arrest is said to negative the duty to respond, so that it becomes illogical to infer an admission. Other courts say that arrest is merely one circumstance to be considered in determining if the prisoner's conduct shows acquiescence in the truth of the statement." But what of the privilege against self incrimination? If it exists in this informal environment, would it not, if invoked, compel all courts to exclude such evidence entirely apart from the logic of inferring an admission? If the privilege is found to extend to the police station, and some courts have said that it does," the further inquiry is obvious: when is the privilege waived? It seems clear that there should be no waiver if the prisoner is forced by physical or mental coercion to make incriminating disclosures. But what of slight coercion, physical or mental? What of mere promises or other inducements, conduct which would normally render a confession involuntary? Is it material that the accused has not been warned that "anything you say may be used against you"? The precise factual predicate for a waiver is less obvious in these situations. Even assuming that the privilege against self incrimination exists and has not been waived, there is an additional issue. Normally the fact that evidence is obtained illegally does not make it less probative, and many courts admit such evidence." The Weeks doctrine," which excludes evidence obtained by unreasonable search and seizure in violation of the Fourth Amendment, is not generally accepted by state courts." Assume that the accused is forced to make an incriminating admission in violation of his con 15. See 2 WIGMore, Evidence § 292 (3d ed. 1940); 4 id., §§ 1052, 1071. 16. Yep v. United States, 83 F.2d 41 (10th Cir. 1936); State v. Battles, 357 Mo. 1223, 212 S.W.2d 753 (1948); People v. Rutigliano, 261 N.Y. 103, 184 N.E. 689 (1933); Moree v. State, 147 Tex. Cr. 564, 183 S.W.2d 166 (1944); 4 Wigmore, Evidence § 1072 (3d ed. 1940). 17. Muse v. State, 29 Ala. App. 271, 196 So. 148 (1940); People v. Simmons, 28 Cal.2d 699, 172 P.2d 18 (1946); Emmett v. State, 195 Ga. 517, 25 S.E.2d 9 (1943); State v. Sorge, 125 N.J.L. 445, 15 A.2d 776 (Ct. Err. & App. 1940); 4 WIGMORE, EVIDENCE § 1072 (3d ed. 1940). 18. See discussion pp. 464-67 infra. 19. People v. One 1941 Mercury Sedan, 74 Cal. App.2d 199, 168 P.2d 443 (1st Dist. 1946); State ex rel. Kuble v. Bisignano, 238 Iowa 1060, 28 N.W.2d 504 (1947); State v. Addy, 210 S.C. 353, 42 S.E.2d 585 (1947). 8 Wigmore, Evidence § 2183 (3d ed. 1940); Note, 19 ILL. L. REV. 303, 307 (1925). 20. Weeks v. United States, 232 U.S. 383 (1914). See Fraenkel, Concerning Searches and Seizures, 34 Harv. L. Rev. 361, 372 (1921). 21. See People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926); 8 WIGMORE, EVIDENCE 2183 (3d ed. 1940). stitutional privilege. Would the many state courts which have rejected Weeks allow the admission to go into evidence despite violation of the accused's privilege? In almost every jurisdiction the privilege against self incrimination is on a constitutional plane." Conceivably, individual states may differ as to the scope of the privilege. In some, the privilege may be restricted to formal legislative, executive, or judicial proceedings; in others, the privilege may extend to any governmental inquiry. The states have a free hand in determining the content of the privilege. It is well settled that the Fifth Amendment applies only to the Federal Government." It is equally established that the Fourteenth Amendment, which does apply to the states, does not incorporate the self-incrimination provision of the Fifth Amendment." II. THE AUTHORITIES While some courts have squarely come to grips with the scope of the privilege against self incrimination, most of the cases whose facts raise the inquiry are decided upon other grounds. The evidence is excluded for other reasons, making it unnecessary to consider the privilege, or the court simply assumes that the privilege is inapplicable and admits the evidence. It is therefore necessary to look at the results reached in the cases in order to appraise the vitality of the privilege in an informal setting. The leading case is Bram v. United States," decided by the Supreme Court of the United States in 1897. The accused was questioned by a detective in the detective's office, where he was accused of homicide. He made an admission under circumstances that were found to be involuntary. The Court said: In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the 22. See 8 WIGMore, Evidence § 2252 (3d ed. 1940). 23. Barron v. Baltimore, 7 Pet. 243 (U.S. 1833); United States v. Lanza, 260 U.S. 377, 382 (1922). See Fairman and Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? 2 STAN. L. REV. 5, 140 (1949). 24. The self-incrimination privilege contained in the Fifth Amendment does not apply to the states either on the theory that the Fourteenth Amendment incorporates it or because the privilege is an essential requirement under procedural due process. Adamson v. California, 332 U.S. 46 (1947); Twining v. New Jersey, 211 U.S. 78 (1908); see Palko v. Connecticut, 302 U.S. 319, 323 (1937). For a general discussion of the problem, see Fairman and Morrison, supra note 23. 25. 168 U.S. 532 (1897). |