ESCOBEDO vs ILLINOIS (378 US 478)

Syllabus:
Petitioner, a 22-year-old of Mexican extraction, was arrested with his sister and taken to police
headquarters for interrogation in connection with the fatal shooting, about 11 days before, of his
brother-in-law. He had been arrested shortly after the shooting, but had made no statement, and was
released after his lawyer obtained a writ of habeas corpus from a state court. Petitioner made several
requests to see his lawyer, who, though present in the building, and despite persistent efforts, was
refused access to his client. Petitioner was not advised by the police of his right to remain silent and,
after persistent questioning by the police, made a damaging statement to an Assistant State's Attorney
which was admitted at the trial. Convicted of murder, he appealed to the State Supreme Court, which
affirmed the conviction.
Held: Under the circumstances of this case, where a police investigation is no longer a general inquiry
into an unsolved crime but has begun to focus on a particular suspect in police custody who has been
refused an opportunity to consult with his counsel and who has not been warned of his constitutional
right to keep silent, the accused has been denied the assistance of counsel in violation of the Sixth and
Fourteenth Amendments, and no statement extracted by the police during the interrogation may be used
against him at a trial. Crooker v. California, 357 U.S. 433, and Cicenia v. Lagay, 357 U.S. 504,
distinguished, and, to the extent that they may be inconsistent with the instant case, they are not
controlling. Pp. 479-492.
Opinion
GOLDBERG, J., Opinion of the Court
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
The critical question in this case is whether, under the circumstances, the refusal by the police to honor
petitioner's request to consult with his lawyer during the course of an interrogation constitutes a denial
of "the Assistance of Counsel" in violation of the Sixth Amendment to the Constitution as "made
obligatory upon the States by the Fourteenth Amendment," Gideon v. Wainwright, 372 U.S. 335, 342,
and thereby renders inadmissible in a state criminal trial any incriminating statement elicited by the
police during the interrogation.
On the night of January 19, 1960, petitioner's brother-in-law was fatally shot. In the early hours of the
next morning, at 2:30 a.m., petitioner was arrested without a warrant and interrogated. Petitioner made
no statement to the police, and was released at 5 that afternoon pursuant to a state court writ of habeas
corpus obtained by Mr. Warren Wolfson, a lawyer who had been retained by petitioner.
On January 30, Benedict DiGerlando, who was then in police custody and who was later indicted for
the murder along with petitioner, told the police that petitioner had fired the fatal shots. Between 8 and
9 that evening, petitioner and his sister, the widow of the deceased, were arrested and taken to police
headquarters. En route to the police station, the police "had handcuffed the defendant behind his back,"
and "one of the arresting officers told defendant that DiGerlando had named him as the one who shot"
the deceased. Petitioner testified, without contradiction, that the "detectives said they had us pretty
well, up pretty tight, and we might as well admit to this crime," and that he replied, "I am sorry, but I
would like to have advice from my lawyer." A police officer testified that, although petitioner was not
formally charged, "he was in custody" and "couldn't walk out the door."
Shortly after petitioner reached police headquarters, his retained lawyer arrived. The lawyer described
the ensuing events in the following terms:
On that day, I received a phone call [from "the mother of another defendant"] and, pursuant to that
phone call, I went to the Detective Bureau at 11th and State. The first person I talked to was the
Sergeant on duty at the Bureau Desk, Sergeant Pidgeon. I asked Sergeant Pidgeon for permission to
speak to my client, Danny Escobedo. . . . Sergeant Pidgeon made a call to the Bureau lockup and
informed me that the boy had been taken from the lockup to the Homicide Bureau. This was between
9:30 and 10:00 in the evening. Before I went anywhere, he called the Homicide Bureau and told them
there was an attorney waiting to see Escobedo. He told me I could not see him. Then I went upstairs to
the Homicide Bureau. There were several Homicide Detectives around, and I talked to them. I
identified myself as Escobedo's attorney and asked permission to see him. They said I could not. . . .
The police officer told me to see Chief Flynn, who was on duty. I identified myself to Chief Flynn and
asked permission to see my client. He said I could not. . . . I think it was approximately 11:00 o'clock.
He said I couldn't see him because they hadn't completed questioning. . . . [F]or a second or two, I
spotted him in an office in the Homicide Bureau. The door was open, and I could see through the
office. . . . I waved to him and he waved back, and then the door was closed by one of the officers at
Homicide. There were four or five officers milling around the Homicide Detail that night. As to
whether I talked to Captain Flynn any later that day, I waited around for another hour or two and went
back again and renewed by [sic] request to see my client. He again told me I could not. . . . I filed an
official complaint with Commissioner Phelan of the Chicago Police Department. I had a conversation
with every police officer I could find. I was told at Homicide that I couldn't see him and I would have
to get a writ of habeas corpus. I left the Homicide Bureau and from the Detective Bureau at 11th and
State at approximately 1:00 A.M. [Sunday morning]. I had no opportunity to talk to my client that
night. I quoted to Captain Flynn the Section of the Criminal Code which allows an attorney the right to
see his client.
Petitioner testified that, during the course of the interrogation, he repeatedly asked to speak to his
lawyer, and that the police said that his lawyer "didn't want to see" him. The testimony of the police
officers confirmed these accounts in substantial detail.
Notwithstanding repeated requests by each, petitioner and his retained lawyer were afforded no
opportunity to consult during the course of the entire interrogation. At one point, as previously noted,
petitioner and his attorney came into each other's view for a few moments, but the attorney was quickly
ushered away. Petitioner testified "that he heard a detective telling the attorney the latter would not be
allowed to talk to [him] ‘until they were done,'" and that he heard the attorney being refused permission
to remain in the adjoining room. A police officer testified that he had told the lawyer that he could not
see petitioner until "we were through interrogating" him.
There is testimony by the police that, during the interrogation, petitioner, a 22-year-old of Mexican
extraction with no record of previous experience with the police, "was handcuffed" in a standing
position and that he "was nervous, he had circles under his eyes, and he was upset" and was "agitated"
because "he had not slept well in over a week."
It is undisputed that, during the course of the interrogation, Officer Montejano, who "grew up" in
petitioner's neighborhood, who knew his family, and who uses "Spanish language in [his] police work,"
conferred alone with petitioner "for about a quarter of an hour. . . ." Petitioner testified that the officer
said to him "in Spanish that my sister and I could go home if I pinned it on Benedict DiGerlando," that
he would see to it that we would go home and be held only as witnesses, if anything, if we had made a
statement against DiGerlando . . . that we would be able to go home that night.
Petitioner testified that he made the statement in issue because of this assurance. Officer Montejano
denied offering any such assurance.
A police officer testified that, during the interrogation, the following occurred:
I informed him of what DiGerlando told me, and, when I did, he told me that DiGerlando was [lying],
and I said, "Would you care to tell DiGerlando that?" and he said, "Yes, I will." So I brought . . .
Escobedo in and he confronted DiGerlando and he told him that he was lying and said, "I didn't shoot
Manuel, you did it."
In this way, petitioner for the first time admitted to some knowledge of the crime. After that, he made
additional statements further implicating himself in the murder plot. At this point, an Assistant State's
Attorney, Theodore J. Cooper, was summoned "to take" a statement. Mr. Cooper, an experienced
lawyer who was assigned to the Homicide Division to take "statements from some defendants and
some prisoners that they had in custody," "took" petitioner's statement by asking carefully framed
questions apparently designed to assure the admissibility into evidence of the resulting answers. Mr.
Cooper testified that he did not advise petitioner of his constitutional rights, and it is undisputed that no
one during the course of the interrogation so advised him.
Petitioner moved both before and during trial to suppress the incriminating statement, but the motions
were denied. Petitioner was convicted of murder, and he appealed the conviction.
The Supreme Court of Illinois, in its original opinion of February 1, 1963, held the statement
inadmissible and reversed the conviction. The court said:
[I]t seems manifest to us, from the undisputed evidence and the circumstances surrounding defendant at
the time of his statement and shortly prior thereto, that the defendant understood he would be permitted
to go home if he gave the statement, and would be granted an immunity from prosecution.
Compare Lynumn v. Illinois, 372 U.S. 528. The State petitioned for, and the court granted, rehearing.
The court then affirmed the conviction. It said:
[T]he officer denied making the promise and the trier of fact believed him. We find no reason for
disturbing the trial court's finding that the confession was voluntary.
28 Ill.2d 41, 45-46, 190 N.E.2d 825, 827. The court also held, on the authority of this Court's decisions
in Crooker v. California, 357 U.S. 433, and Cicenia v. Lagay, 357 U.S. 504, that the confession was
admissible even though "it was obtained after he had requested the assistance of counsel, which request
was denied." 28 Ill.2d at 46, 190 N.E.2d at 827. We granted a writ of certiorari to consider whether the
petitioner's statement was constitutionally admissible at his trial. 375 U.S. 902. We conclude, for the
reasons stated below, that it was not and, accordingly, we reverse the judgment of conviction.
In Massiah v. United States, 377 U.S. 201, this Court observed that

a Constitution which guarantees a defendant the aid of counsel at . . . trial could surely vouchsafe no
less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding.
Anything less . . . might deny a defendant "effective representation by counsel at the only stage when
legal aid and advice would help him."
Id. at 204, quoting DOUGLAS, J., concurring in Spano v. New York, 360 U.S. 315, 326.

The interrogation here was conducted before petitioner was formally indicted. But in the context of this
case, that fact should make no difference. When petitioner requested, and was denied, an opportunity to
consult with his lawyer, the investigation had ceased to be a general investigation of "an unsolved
crime." Spano v New York, 360 U.S. 315, 327 (STEWART, J., concurring). Petitioner had become the
accused, and the purpose of the interrogation was to "get him" to confess his guilt despite his
constitutional right not to do so. At the time of his arrest and throughout the course of the interrogation,
the police told petitioner that they had convincing evidence that he had fired the fatal shots. Without
informing him of his absolute right to remain silent in the face of this accusation, the police urged him
to make a statement. As this Court observed many years ago:

It cannot be doubted that, placed in the position in which the accused was when the statement was
made to him that the other suspected person had charged him with crime, the result was to produce
upon his mind the fear that, if he remained silent, it would be considered an admission of guilt, and
therefore render certain his being committed for trial as the guilty person, and it cannot be conceived
that the converse impression would not also have naturally arisen, that, by denying there was hope of
removing the suspicion from himself.
Bram v. United States, 168 U.S. 532, 562. Petitioner, a layman, was undoubtedly unaware that, under
Illinois law, an admission of "mere" complicity in the murder plot was legally as damaging as an
admission of firing of the fatal shots. Illinois v. Escobedo, 28 Ill.2d 41, 190 N.E.2d 825. The "guiding
hand of counsel" was essential to advise petitioner of his rights in this delicate situation. Powell v.
Alabama, 287 U.S. 45, 69. This was the "stage when legal aid and advice" were most critical to
petitioner. Massiah v. United States, supra, at 204. It was a stage surely as critical as was the
arraignment in Hamilton v. Alabama, 368 U.S. 52, and the preliminary hearing in White v.
Maryland, 373 U.S. 59. What happened at this interrogation could certainly "affect the whole
trial," Hamilton v. Alabama, supra, at 54, since rights "may be as irretrievably lost, if not then and there
asserted, as they are when an accused represented by counsel waives a right for strategic
purposes." Ibid. It would exalt form over substance to make the right to counsel, under these
circumstances, depend on whether, at the time of the interrogation, the authorities had secured a formal
indictment. Petitioner had, for all practical purposes, already been charged with murder.
The New York Court of Appeals, whose decisions this Court cited with approval in Massiah, 377 U.S.
201, at 205, has recently recognized that, under circumstances such as those here, no meaningful
distinction can be drawn between interrogation of an accused before and after formal indictment.
In People v. Donovan, 13 N.Y.2d 148, 193 N.E.2d 628, that court, in an opinion by Judge Fuld, held
that a
confession taken from a defendant, during a period of detention [prior to indictment], after his attorney
had requested and been denied access to him

could not be used against him in a criminal trial. Id. at 151, 193 N.E.2d at 629. The court observed that
it
would be highly incongruous if our system of justice permitted the district attorney, the lawyer
representing the State, to extract a confession from the accused while his own lawyer, seeking to speak
with him, was kept from him by the police.
Id. at 152, 193 N.E.2d at 629.
In Gideon v. Wainwright, 372 U.S. 335, we held that every person accused of a crime, whether state or
federal, is entitled to a lawyer at trial. The rule sought by the State here, however, would make the trial
no more than an appeal from the interrogation, and the
right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the
conviction is already assured by pretrial examination.
In re Groban, 352 U.S. 330, 344 (BLACK, J., dissenting).

One can imagine a cynical prosecutor saying: "Let them have the most illustrious counsel now. They
can't escape the noose. There is nothing that counsel can do for them at the trial."
Ex parte Sullivan, 107 F.Supp. 514, 517-518.
It is argued that, if the right to counsel is afforded prior to indictment, the number of confessions
obtained by the police will diminish significantly, because most confessions are obtained during the
period between arrest and indictment, and "any lawyer worth his salt will tell the suspect in no
uncertain terms to make no statement to police under any circumstances." Watts v. Indiana, 338 U.S.
49, 59 (Jackson, J., concurring in part and dissenting in part). This argument, of course, cuts two ways.
The fact that many confessions are obtained during this period points up its critical nature as a "stage
when legal aid and advice" are surely needed. Massiah v. United States, supra, at 204; Hamilton v.
Alabama, supra; White v. Maryland, supra. The right to counsel would indeed be hollow if it began at a
period when few confessions were obtained. There is necessarily a direct relationship between the
importance of a stage to the police in their quest for a confession and the criticalness of that stage to the
accused in his need for legal advice. Our Constitution, unlike some others, strikes the balance in favor
of the right of the accused to be advised by his lawyer of his privilege against self-
incrimination. See Note, 73 Yale L.J. 1000, 1048-1051 (1964).
We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement
which comes to depend on the "confession" will, in the long run, be less reliable and more subject to
abuses than a system which depends on extrinsic evidence independently secured through skillful
investigation. As Dean Wigmore so wisely said:
[A]ny system of administration which permits the prosecution to trust habitually to compulsory self-
disclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely
mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources.
The exercise of the power to extract answers begets a forgetfulness of the just limitations of that power.
The simple and peaceful process of questioning breeds a readiness to resort to bullying and to physical
force and torture. If there is a right to an answer, there soon seems to be a right to the expected answer
-- that is, to a confession of guilt. Thus, the legitimate use grows into the unjust abuse; ultimately, the
innocent are jeopardized by the encroachments of a bad system. Such seems to have been the course of
experience in those legal systems where the privilege was not recognized.
8 Wigmore, Evidence (3d ed.1940), 309. (Emphasis in original.) This Court also has recognized that
history amply shows that confessions have often been extorted to save law enforcement officials the
trouble and effort of obtaining valid and independent evidence. . . . Haynes v. Washington, 373 U.S.
503, 519.

We have also learned the companion lesson of history that no system of criminal justice can, or should,
survive if it comes to depend for its continued effectiveness on the citizens' abdication through
unawareness of their constitutional rights. No system worth preserving should have to fear that, if an
accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. If the
exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there
is something very wrong with that system.
We hold, therefore, that 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 interrogations 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," Gideon v. Wainwright, 372 U.S. at 342, and
that no statement elicited by the police during the interrogation may be used against him at a criminal
trial.
Crooker v. California, 357 U.S. 433, does not compel a contrary result. In that case, the Court merely
rejected the absolute rule sought by petitioner, that
every state denial of a request to contact counsel [is] an infringement of the constitutional right without
regard to the circumstances of the case.
Id. at 440. (Emphasis in original.) In its place, the following rule was announced:
[S]tate refusal of a request to engage counsel violates due process not only if the accused is deprived of
counsel at trial on the merits, . . . but also if he is deprived of counsel for any part of the pretrial
proceedings, provided that he is so prejudiced thereby as to infect his subsequent trial with an absence
of "that fundamental fairness essential to the very concept of justice. . . ." The latter determination
necessarily depends upon all the circumstances of the case.
357 U.S. at 439-440. (Emphasis added.) The Court, applying "these principles" to "the sum total of the
circumstances [there] during the time petitioner was without counsel," id. at 440, concluded that he had
not been fundamentally prejudiced by the denial of his request for counsel. Among the critical
circumstances which distinguish that case from this one are that the petitioner there, but not here, was
explicitly advised by the police of his constitutional right to remain silent and not to "say anything" in
response to the questions, id. at 437, and that petitioner there, but not here, was a well educated man
who had studied criminal law while attending law school for a year. The Court's opinion in Cicenia v.
Lagay, 357 U.S. 504, decided the same day, merely said that the "contention that petitioner had a
constitutional right to confer with counsel is disposed of by Crooker v. California. . . ." That case adds
nothing, therefore, to Crooker. In any event, to the extent that Cicenia or Crooker may be inconsistent
with the principles announced today, they are not to be regarded as controlling.
Nothing we have said today affects the powers of the police to investigate "an unsolved crime," Spano
v. New York, 360 U.S. 315, 327 (STEWART, J., concurring), by gathering information from witnesses
and by other "proper investigative efforts." Haynes v. Washington, 373 U.S. 503, 519. We hold only
that, when the process shifts from investigatory to accusatory -- when its focus is on the accused and its
purpose is to elicit a confession -- our adversary system begins to operate, and, under the circumstances
here, the accused must be permitted to consult with his lawyer.
The judgment of the Illinois Supreme Court is reversed, and the case remanded for proceedings not
inconsistent with this opinion.
Reversed and remanded.

Dissent
HARLAN, J., Dissenting Opinion
MR. JUSTICE HARLAN, dissenting.
I would affirm the judgment of the Supreme Court of Illinois on the basis of Cicenia v. Lagay, 357 U.S.
504, decided by this Court only six years ago. Like my Brother WHITE, post, p. 495, I think the rule
announced today is most ill-conceived, and that it seriously and unjustifiably fetters perfectly legitimate
methods of criminal law enforcement.

STEWART, J., Dissenting Opinion

MR. JUSTICE STEWART, dissenting.
I think this case is directly controlled by Cicenia v. Lagay, 357 U.S. 504, and I would therefore affirm
the judgment.
Massiah v. United States, 377 U.S. 201, is not in point here. In that case, a federal grand jury had
indicted Massiah. He had retained a lawyer and entered a formal plea of not guilty. Under our system of
federal justice, an indictment and arraignment are followed by a trial, at which the Sixth Amendment
guarantees the defendant the assistance of counsel.[*] But Massiah was released on bail, and thereafter
agents of the Federal Government deliberately elicited incriminating statements from him in the
absence of his lawyer. We held that the use of these statements against him at his trial denied him the
basic protections of the Sixth Amendment guarantee. Putting to one side the fact that the case now
before us is not a federal case, the vital fact remains that this case does not involve the deliberate
interrogation of a defendant after the initiation of judicial proceedings against him. The Court
disregards this basic difference between the present case and Massiah's, with the bland assertion that
"that fact should make no difference." Ante, p. 485.
It is "that fact," I submit, which makes all the difference. Under our system of criminal justice, the
institution of formal, meaningful judicial proceedings, by way of indictment, information, or
arraignment, marks the point at which a criminal investigation has ended and adversary proceedings
have commenced. It is at this point that the constitutional guarantees attach which pertain to a criminal
trial. Among those guarantees are the right to a speedy trial, the right of confrontation, and the right to
trial by jury. Another is the guarantee of the assistance of counsel. Gideon v. Wainwright, 372 U.S.
335; Hamilton v. Alabama, 368 U.S. 52; White v. Maryland, 373 U.S. 59.

The confession which the Court today holds inadmissible was a voluntary one. It was given during the
course of a perfectly legitimate police investigation of an unsolved murder. The Court says that what
happened during this investigation "affected" the trial. I had always supposed that the whole purpose of
a police investigation of a murder was to "affect" the trial of the murderer, and that it would be only an
incompetent, unsuccessful, or corrupt investigation which would not do so. The Court further says that
the Illinois police officers did not advise the petitioner of his "constitutional rights" before he confessed
to the murder. This Court has never held that the Constitution requires the police to give any "advice"
under circumstances such as these.
Supported by no stronger authority than its own rhetoric, the Court today converts a routine police
investigation of an unsolved murder into a distorted analogue of a judicial trial. It imports into this
investigation constitutional concepts historically applicable only after the onset of formal prosecutorial
proceedings. By doing so, I think the Court perverts those precious constitutional guarantees, and
frustrates the vital interests of society in preserving the legitimate and proper function of honest and
purposeful police investigation.
Like my Brother CLARK, I cannot escape the logic of my Brother WHITE's conclusions as to the
extraordinary implications which emanate from the Court's opinion in this case, and I share their views
as to the untold and highly unfortunate impact today's decision may have upon the fair administration
of criminal justice. I can only hope we have completely misunderstood what the Court has said.
* "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence."

WHITE, J., Dissenting Opinion

MR. JUSTICE WHITE, with whom MR. JUSTICE CLARK and MR. JUSTICE STEWART join,
dissenting.
In Massiah v. United States, 377 U.S. 201, the Court held that, as of the date of the indictment, the
prosecution is dissentitled to secure admissions from the accused. The Court now moves that date back
to the time when the prosecution begins to "focus" on the accused. Although the opinion purports to be
limited to the facts of this case, it would be naive to think that the new constitutional right announced
will depend upon whether the accused has retained his own counsel, cf. Gideon v. Wainwright, 372
U.S. 335; Griffin v. Illinois, 351 U.S. 12; Douglas v. California, 372 U.S. 353, or has asked to consult
with counsel in the course of interrogation. Cf. Carnley v. Cochran, 369 U.S. 506. At the very least, the
Court holds that, once the accused becomes a suspect and, presumably, is arrested, any admission made
to the police thereafter is inadmissible in evidence unless the accused has waived his right to counsel.
The decision is thus another major step in the direction of the goal which the Court seemingly has in
mind -- to bar from evidence all admissions obtained from an individual suspected of crime, whether
involuntarily made or not. It does, of course, put us one step "ahead" of the English judges who have
had the good sense to leave the matter a discretionary one with the trial court.
[*] I reject this step and the invitation to go farther which the Court has now issued.

By abandoning the voluntary-involuntary test for admissibility of confessions, the Court seems driven
by the notion that it is uncivilized law enforcement to use an accused's own admissions against him at
his trial. It attempts to find a home for this new and nebulous rule of due process by attaching it to the
right to counsel guaranteed in the federal system by the Sixth Amendment and binding upon the States
by virtue of the due process guarantee of the Fourteenth Amendment. Gideon v. Wainwright, supra. The
right to counsel now not only entitles the accused to counsel's advice and aid in preparing for trial, but
stands as an impenetrable barrier to any interrogation once the accused has become a suspect. From
that very moment, apparently his right to counsel attaches, a rule wholly unworkable and impossible to
administer unless police cars are equipped with public defenders and undercover agents and police
informants have defense counsel at their side. I would not abandon the Court's prior cases defining with
some care and analysis the circumstances requiring the presence or aid of counsel and substitute the
amorphous and wholly unworkable principle that counsel is constitutionally required whenever he
would or could be helpful. Hamilton v. Alabama, 368 U.S. 52; White v. Maryland, 373 U.S. 59; Gideon
v. Wainwright, supra. These cases dealt with the requirement of counsel at proceedings in which
definable rights could be won or lost, not with stages where probative evidence might be obtained.
Under this new approach, one might just as well argue that a potential defendant is constitutionally
entitled to a lawyer before, not after, he commits a crime, since it is then that crucial incriminating
evidence is put within the reach of the Government by the would-be accused. Until now, there simply
has been no right guaranteed by the Federal Constitution to be free from the use at trial of a voluntary
admission made prior to indictment.
It is incongruous to assume that the provision for counsel in the Sixth Amendment was meant to amend
or supersede the self-incrimination provision of the Fifth Amendment, which is now applicable to the
States. Malloy v. Hogan, 378 U.S. 1. That amendment addresses itself to the very issue of incriminating
admissions of an accused and resolves it by proscribing only compelled statements. Neither the
Framers, the constitutional language, a century of decisions of this Court, nor Professor Wigmore
provides an iota of support for the idea that an accused has an absolute constitutional right not to
answer even in the absence of compulsion -- the constitutional right not to incriminate himself by
making voluntary disclosures.
Today's decision cannot be squared with other provisions of the Constitution which, in my view, define
the system of criminal justice this Court is empowered to administer. The Fourth Amendment permits
upon probable cause even compulsory searches of the suspect and his possessions and the use of the
fruits of the search at trial, all in the absence of counsel. The Fifth Amendment and state constitutional
provisions authorize, indeed require, inquisitorial grand jury proceedings at which a potential
defendant, in the absence of counsel, is shielded against no more than compulsory
incrimination. Mulloney v. United States, 79 F.2d 566, 578 (C.A. 1st Cir.); United States v.
Benjamin, 120 F.2d 521, 522 (C.A.2d Cir.); United States v. Scully, 225 F.2d 113, 115 (C.A.2d
Cir.); United States v. Gilboy, 160 F.Supp. 442 (D.C.M.D.Pa.). A grand jury witness, who may be a
suspect, is interrogated and his answers, at least until today, are admissible in evidence at trial. And
these provisions have been thought of as constitutional safeguards to persons suspected of an offense.
Furthermore, until now, the Constitution has permitted the accused to be fingerprinted and to be
identified in a lineup or in the courtroom itself.
The Court chooses to ignore these matters, and to rely on the virtues and morality of a system of
criminal law enforcement which does not depend on the "confession." No such judgment is to be found
in the Constitution. It might be appropriate for a legislature to provide that a suspect should not be
consulted during a criminal investigation; that an accused should never be called before a grand jury to
answer, even if he wants to, what may well be incriminating questions, and that no person, whether he
be a suspect, guilty criminal or innocent bystander, should be put to the ordeal of responding to orderly
noncompulsory inquiry by the State. But this is not the system our Constitution requires. The only
"inquisitions" the Constitution forbids are those which compel incrimination. Escobedo's statements
were not compelled, and the Court does not hold that they were.
This new American judges' rule, which is to be applied in both federal and state courts, is perhaps
thought to be a necessary safeguard against the possibility of extorted confessions. To this extent, it
reflects a deep-seated distrust of law enforcement officers everywhere, unsupported by relevant data or
current material based upon our own experience. Obviously law enforcement officers can make
mistakes and exceed their authority, as today's decision shows that even judges can do, but I have
somewhat more faith than the Court evidently has in the ability and desire of prosecutors and of the
power of the appellate courts to discern and correct such violations of the law.
The Court may be concerned with a narrower matter: the unknowing defendant who responds to police
questioning because he mistakenly believes that he must and that his admissions will not be used
against him. But this worry hardly calls for the broadside the Court has now fired. The failure to inform
an accused that he need not answer and that his answers may be used against him is very relevant
indeed to whether the disclosures are compelled. Cases in this Court, to say the least, have never placed
a premium on ignorance of constitutional rights. If an accused is told he must answer and does not
know better, it would be very doubtful that the resulting admissions could be used against him. When
the accused has not been informed of his rights at all, the Court characteristically and properly looks
very closely at the surrounding circumstances. See Ward v. Texas, 316 U.S. 547; Haley v. Ohio, 332
U.S. 596; Payne v. Arkansas, 356 U.S. 560. I would continue to do so. But, in this case, Danny
Escobedo knew full well that he did not have to answer, and knew full well that his lawyer had advised
him not to answer.
I do not suggest for a moment that law enforcement will be destroyed by the rule announced today. The
need for peace and order is too insistent for that. But it will be crippled, and its task made a great deal
more difficult, all, in my opinion, for unsound, unstated reasons which can find no home in any of the
provisions of the Constitution.
*

[I]t seems from reported cases that the judges have given up enforcing their own rules, for it is no
longer the practice to exclude evidence obtained by questioning in custody. . . . A traditional principle
of "fairness" to criminals, which has quite possibly lost some of the reason for its existence, is
maintained in words while it is disregarded in fact. . . .
The reader may be expecting at this point a vigorous denunciation of the police and of the judges, and a
plea for a return to the Judges' Rules as interpreted in 1930. What has to be considered, however, is
whether these Rules are a workable part of the machinery of justice. Perhaps the truth is that the Rules
have been abandoned, by tacit consent, just because they are an unreasonable restriction upon the
activities of the police in bringing criminals to book.