*1 YORK. v. NEW STEIN 391. NO. June

Argued December 1952. Decided *3 Duff, Wegman John J. J. Bertram and Peter L. F. Sab- argued batino causes for petitioners. Mr. With Duff brief petitioner for in No. 391 was J. Philip petitioner Wegman on the brief for Mr. O’Brien. With J. I. Maurice and Richard in No. 392 were Wormser the brief for petitioner Mr. Sabbatino on Burke. With Thomas Todarelli. No. J. argued J. O’Brien and John C. Marbach the cause

John them on brief was Burton respondent. With C. Meighan. opinion delivered the

Mr. Justice Jackson Court. murder1 guilty felony

Petitioners were found jury County, York, Westchester New and sentenced death. The York affirmed Appeals New Court of opinion.2 granted without because of certiorari, We questions raised use of two confessions.3

The trial lasted seven and the record runs over weeks 3,000 proffered heard, to more than pages. Evidence subject rejection acceptance judgment jury, two written by petitioners included confessions Cooper Stein, together with as to testimony their incidental oral confessions and admissions. Each written implicated confession all three and all defendants ob- jected to introduction each confession on the ground was coerced. Wissner further moved to each that, Cooper’s and Stein’s admitted, confessions were all to him reference be stricken from them. The trial court heard in the presence evidence as to the *4 issue coercion and left determination question by person 1 Ahomicide engaged committed a in the commission felony. first-degree of a It is murder mandatory and carries a death sentence unless imprisonment. the recommends life New York Law, (2), Penal 1045-a. such No §§ recommendation was here. made 2People Cooper, Y. 303 N. N. E. 2d 917. 3344 U. S. 815. of these use that such Petitioners claim jury. the which re- infirmity a constitutional creates

confessions aside the conviction. Court to set this quires the About Crime. I. Facts miles Digest thirty-one of Reader’s office The main north- rural area of relatively in the York City, from New of Pleasantville. the town County, near ern Westchester times a headquarters truck several From this secluded April 3, from town. On run to and day makes a each p. the 2:50 m. Waterbury was driver 1950, William Petrini, Andrew picked up He trip into Pleasantville. mail, containing bags and various employee, a fellow checks, $5,000 cash, $35,000 and about about Neither to town. lonely country down the roads started Waterbury was yards, After few was armed. hundred had been mean- halted another truck that by cut off and man wear- of him. He observed a dering slowly front in his ing eyeglasses a false nose and and with a revolver at- hand him. After an unsuccessful running toward into tempt door, the assailant fired one shot open into Waterbury Petrini’s was then ordered head. up. him His back the truck where another man tied captors bag containing money took and checks and on a road with Waterbury abandoned the truck side bound A few minutes gagged therein. later he was released passer-by had hurried to hospital Petrini shortly where he died from the of a effects .38 revolver lodged bullet skull. his

Near scene police crime found the aban- truck used the killers way doned to block the Waterbury. It was learned property of Spring Co., Auto Rental on New York’s lower East Side and at the time of the murder have been on out hire to a man who had rented prior the same truck three occasions and who each had time identified himself by producing *5 New York driver’s license No. issued to W. W. Comins, of 228 47th York Street, City. West New address turned out to be a hotel and the name fictitious. managed However, police establish that the license procured by had been Cooper. one William It is more than a figure speech say that William Cooper had an ironclad alibi: at the time of this crime he in a serving sentence federal penitentiary. Sus- picion attached to family. members his Nearly two ran months on with no solution un- crime, however, til toward the end of May or the beginning June, when police learned that William’s brother, petitioner Cai- man Cooper, had served a sentence in federal prison where he was a “working partner” and chess-playing buddy of one Brassett, who was serving time for having rifled mails addressed to Digest the Reader’s while working Pleas- antville. It appeared that during prison their associa- tion Brassett had told Caiman Cooper of the opportunity awaiting at Digest Reader’s for an enterprising and clever robber.

On 5, 1950, June police arranged for Jeppe- Arthur son, who had rented the Spring truck to “W. Comins,” W. to be on a street in New York City where ex- pected Caiman Cooper pass. Jeppeson testified on the trial Cooper recognized him'and him said to “this truck that he rented from me was in a killing up- state and he had nothing to do with it . . . .” Jeppeson testified that he then Cooper asked questions: two “Why the hell didn’t you report it to police?” and “. . . why did give he me that license ....”? Cooper’s reply was stated to be, “That is the license they give him give me.” Jeppeson further testified that Cooper had inquired if the officers had shown him any pictures and asked him not to identify Cooper to police.

At the end of this conversation, on Jeppeson’s signal, policemen two closed and arrested Cooper. That *6 arrested. was Stein 6) petitioner a. June m., night (2 was arrested. Wissner m., petitioner 9 a. 7, about On June charged with and arraigned were petitioners three The suspect, A fourth of June 8. evening on the murder he vol- large until at remained sought but Dorfman, was 19, on June surrendered untarily time When for murder. indicted All four were Dorfman, turned against who the case trial, for came separate for A motion evidence, was severed. state’s pro- and trial denied, was Wissner by petitioner trial remaining defendants. the three against ceeded offered Wissner alibi witnesses than two Other in- Cooper to establish attempt by a halfhearted and entirely attempts almost sanity, the consisted defense of the None de- prosecution’s case. break down the fendants testified. part a of the evidence only

The confessions constituted in which learn the context jury. We can submitted and received police were obtained confessions testimony. whole summary in from a only evidence in murdered who was the truck with the Waterbury, fired shot the man who identified Wissner as Petrini, him He testified up.4 who tied the man Stein as him Haw- brought police that on the 8th June in a room which that, upon entering thorne Barracks pointed out Stein Water- present, Stein was defendant cross-examination, On bury the driver of the truck.5 as 4 Waterbury’s argued The recollection was inaccurate defense only eye. he in one and that had vision 25% 5 says this coerced confession— defense constitutes custody. having police It not a Stein made statement specific Although guilt but an admission of fact. confession admissibility may impose requirements on an the same New York Reilly, People App. confession, see admission as does on a 113, 90, 120 E. 119, 123, aff’d, 224 N. Y. N. N. Y. S. Div. of a lineup out picked he that he had Wissner recounted him 8 and identified at Hawthorne Barracks on June the killer.6 had been let testified that rental truck

Jeppeson April previous occasions, Cooper and on three li- having each used an alias and a false Cooper case having given occupation stated, cense as before his He as “bookseller.” also testified as to his conversation Cooper with on the the latter’s arrest. morning Dorfman, substance, testified he and Wissner auto lower partners rental business on the *7 New York City. Cooper ap- East Side of and Stein had proached 3 April them about six weeks before with the suggestion they robbery collaborate on a at the Digest. killing The used in Reader’s truck the had been Cooper rented on 3 and on by April previous three occa- conspirators sions when the had driven Pleasantville to “case” the area and determine whether conditions were times, favorable for success crime. At the these and they one also other, brought an auto Pleasantville usually such are subject utterances not to the same restrictions on ad- missibility ed.) Wigmore (3d as are confessions. 3 on See Evidence (3). the weight authority contrary, In face of the to the § any requirement imposed cannot said that such the Four- subject teenth Amendment. Even if this admission were to the reliability confessions, same tests as there is no evidence that Stein any thirty was under coercion hours after his of June 7. confession points Waterbury through lineup The defense out that: the went identifying Wissner; lineup two or three times before the consisted troopers, several Wissner and state each of whom several inches was Wissner; taller might than two ladies had who seen a man who lurking vicinity Digest April been the killer in the of the Reader’s through lineup, also the went and each of them identified as that troopers lineup Long man state one the in the who was in Island day lineup on the of the murder. The facts show the suggest so as to constructed Wissner as the man to be identified. the April 3, On agency. Dorfman-Wissner by the owned truck, with for Pleasantville out set four owned guns three containing a tan valise car, a mile from about the car They left Wissner. The truck. in the rented got all Digest and Reader’s auto- a black getting Dorfman distributed, guns holdup The revolver. nickel-plated matic Wissner Dorf- by Waterbury. described in the manner proceeded who but did not see during holdup, man heard shot however, expressed Wissner way back, fired it. On de- guard. shooting necessity regret at the Digest left the Reader’s guns, away threw their fendants on a road and inside, side Waterbury up tied truck, with been where the car had place truck at the left the rental drove They of the crime. during the commission parked they got in the York car. When back toward New by subway and went on they parked the car Bronx, apartment Brooklyn, where and taxicab to Dorfman’s proceeds separated. Subse- up divided up went to the Dorfman and one Homishak quently, picked up Bronx and the car. testimony, York Dorfman’s since law,

Under New It was accomplice, he was corroboration.7 required *8 following ways: (1) afforded in the Mrs. Dorfman testi her Cooper, fied that Stein and had come to Wissner apartment evening April on 3 with her husband and that carried with them the tan which Dorf- valise man had identified It was robbery. used by police testimony established that this valise had been apartment found June in Dorfman’s and when fragment paper searched was found to contain a from April order form by Digest used the Reader’s 7 People Goldstein, Proc., N. Y. Code Crim. 285 N. Y. 399. § E. 34 N. 2d 362. 1950—an order form to which subscribers at frequently on tached cash such manner removal of the portion cash a of the order form would come with it. (2) Police testified that Dorfman’s automatic was found near the away area where he that he had thrown it said April on 3. It (3) was established that Petrini was killed by (4) a bullet from a .38 revolver. Homishak testified that company he saw Dorfman in the petitioners three on April accompanied he Dorfman to the Bronx to pick up night. the car that (5) An employee of Digest the Reader’s at Pleasantville testified that Spring he had seen the Rental on the truck premises on April prior (6) Jep- and on one occasion. peson’s testimony story substantiated Dorfman’s about rental (7) of the truck.9 It Cooper was established that had absented himself job April (8) from his on Wa terbury’s testimony about April the events of 3 and iden tification of Stein and checked with Wissner Dorfman’s story. (9) The two confessions, accepted jury, also were corroborative of accomplice Dorfman in many details.

The defendants made no attempt to contradict or ex- plain away any this damaging testimony. Cooper’s counsel, during with colloquy court, admitted that Cooper had rented the truck April involved on 3 and offered explanation no as to how this fact could be con- sistent with his client’s claim of innocence. An effort testimony There is conflict between the of Homishak and Dorf- man, placing conspirators the former April place the four 3 at a different from says they that where Dorfman were. 9 Jeppeson stated that the truck was rented in each case on a Saturday early Monday morning, and returned on two occasions testimony which contradicts junket Dorfman’s that each to Pleasant- Monday morning. ville had been on Jeppeson testifying from recollection, unaided record. *9 Dorf- made on summation convince the

was was prior record, not criminal man, who did other his wife’s three, and had these with killer accused in his own The tenor save life. cooperation, order to Cooper’s appears from counsel on summation: the defense guilty, is Cooper “I innocent or don’t care whether in funda- insignificant is the solution of the troopers and problem as to whether the state mental violated enforcing other authorities themselves have principles. far more fundamental . . . a mere solu- yourselves

“. . . narrow into Don’t petty course, of a murder .... Of we want tion if the solution that, secondary, solution but that going very that means that to weaken the you are republic; foundations of then would be unfit you jurors.” to be about half of his summation

Wissner’s counsel devoted murder was not arguing “premeditated” —a legal without murder under point significance felony York law. New

II. Facts About Confessions. controversy this we Against background, come to the estab- over the confessions. Uncontroverted evidence the following: lishes who made the and most cru-

Cooper. Cooper, first — confession, police arrested at 9 cial state Monday June morning, o’clock under circumstances father, him at previously described. His who was with time, also was Both to a police arrested. were taken (but station New York where were held City, they booked) until early Thence, the afternoon. headquarters Hawthorne, were taken police state at County, county offense, arriving Westchester at about o’clock.

167 Hawthorne, Coopers At separated; the father in police was detained barracks and the was taken son to an courtyard, office across the known as the Bureau room, Cooper’s interrogation Identification where and his ultimate place. confession took

Although Cooper continuously was under and guard handcuffed, no one him questioned p. until 8 at which m., time three officers him interrogated for four or five hours. During period, this was Cooper confronted with prison his former mate, However, Brassett. he did not confess. Questioning was resumed the following day (Tuesday) at 10 a. m. and continued until 6 p. m., the same three officers participating. p. Just after 6 m. Cooper began to discuss At confessing. this time his father being was held at Hawthorne; his brother Mor- ris had been in arrested York, pres- New where his mere ence violated terms of parole his him subject rendered to disciplinary action. Cooper first obtained a commit- ment by police that his father if would released he confessed. He then asked to see an official the Parole Board order to obtain that, assurance if he confessed, his brother prosecuted Morris would not be parole violation. Accordingly, about p. 8 m. Reardon, em- ployee of the Board, Parole came to see but Cooper, latter was not satisfied with his interview. Reardon’s superior, Parole Commissioner Donovan, sent for. Donovan arrived at about m. p. gave Cooper sat- isfactory assurance that Morris would be unmolested Cooper “co-operated.” Cooper then confessed orally Reardon and Donovan. Thus the confession was' first imparted, police not to the who charged are with brutality, but visiting parole officials not so accused and called at request. his own Thereupon, typewritten confes- sion was prepared which Cooper signed after making certain corrections, at about 1:30 or morning the 7th. It pages is twelve long, great detail; it is gen- its evidence, other throughout

corroborated fabricated that it could have been is such character eral extraordinarily creative gifted with person only by imagination. home at at his brother’s was arrested

Stein. —Stein con- 6th, Cooper before morning a. m. on Bar- to Hawthorne immediately taken fessed. He was fol- in a room the basement. and confined racks at the commandant morning, Captain Glasheen, lowing *11 ques- After lunch him for an hour. barracks, questioned joining resumed, with another officer tioning was That for two or three hours. and continued questioning, interrogated returned and evening, Captain Glasheen 2 a. m., m., m. until 2 with no result. At p. Stein from 7 a. left Cooper’s informed about confession and Stein was with, morning, on it.” The “sleep following the advice to ready By afternoon, Stein was to confess. statement signed. prepared, had been corrected This seven- page statement, complete like and de- Cooper’s, so that, tailed and dovetailed with the extrinsic so evidence if it true, possessed amazing were not its author was powers of divination. following day,

The went Stein to Pleasantville with two explained officers and on the ground how the crime had been committed.

Wissner. —Wissner was arrested about 9 a. m. on June subsequent Cooper’s confession, to implicated which 7— him —and taken to Hawthorne, where he remained until arraignment. his He made no confession.

There no testimony direct were petitioners subjected physical to violence or the it during threat of their detention.10 None of the defendants took the wit- sought, unsuccessfully, defense to introduce an affidavit prior which, according submitted on a motion Stein’s counsel here, Stein’s brief set forth an account which counsel from received excep- their one ness stand substantiate claims. With or every police Cooper who had contact with tion, officer or during questioned Stein detention was could have been exception into con- by the defense. The came about it Stein was not with only tact with shown have been him who were witnesses. except presence others testimony was consistent and unshaken Thus, police accused used, that no violence threats were food at we given and, exceptions were mealtimes with the stated, night. have to sleep allowed at physical The defendants’ violence contentions as entirely rest They on circumstantial evidence. would be without utterly support except for which inferences, they phys- from urge, the admitted fact when first ically examined, day arraignment, after showed they certain injuries bruises and could been which from “third-degree” sustained violent On the methods. morning June 9, prison were examined physician. Cooper had in custody been at the barracks three days, between and four Stein days three and Wissner two days.

Testimony by prison the doctor who examined them predicated mainly on the notes he made at that time was that had a Wissner broken rib and various bruises and concerning police brutality. (This Stein affidavit, though marked for identification, part here.) During not made of the record argument trial, oral on for many counsel made defendants allusions as part police; violent conduct on petitioner Cooper the the and accusing police made lying, an outburst a witness but did not be- come his own this, witness. Other than defendants took no action their trial, establish contentions. Prior to the the defendants brought proceeding Supreme a County in the Court Westchester suppressed ground have the two confessions they on the were illegally prosecution obtained. allegations police The the denied which support misconduct the defendants advanced in of this motion and, evidence, in view of the conflict the of the determination admissibility of the postponed confessions was until the trial. o Cooper buttocks; and legs, side, stomach

abrasions on the both right arm, chest, stomach, the had bruises on Counsel right arm. on his had bruise buttocks; Stein on the 9th examined them who petitioners, the by each sustained injuries that the testified June, 10th doctor’s the than those described more extensive testimony. were of nature injuries such

The record stands in- arrest;11 prior been received might per- who exhibited deed, petitioners Wissner, one of the — injuries but never confessed—was haps worst he was arrested.12 undergoing treatment at the time Employed Constitutionality III. of Procedures Below.

In issues setting facts, of these the constitutional by petitioners not here- procedural raised involve features adjudicated In tofore this Court. view of the uncon- tradicted well as against direct as circumstantial evidence if defendants, part, any, played by the confessions is uncertain. conviction was instructed to consider only the confessions it found them to have voluntary. been It a general guilty. rendered verdict of Under circumstances, these we cannot be sure whether the jury found the guilty by accepting defendants at relying, part, upon least the confessions or whether rejected the confessions and found them guilty on the Indeed, other evidence. except rely as we upon pre- sumption jurors that the followed instructions, we cannot Vosburgh, physician Dr. petitioners had examined on who exactly long testified that it was June difficult to state how there; Cooper’s bruises had body been that the bruises could have days (he custody been as much days) ; six old *13 had been in three prior and that Stein’s bruises could have been sustained to arrest. 12 hearsay, objected by This evidence was not but was to defendants.

171 jurors upon basis, know that some not have acted one may Also, while some convicted on the other. since the Court Appeals we are not opinion, affirmed without certain ground whether it did so on the that the confessions were properly relied on or that even without them the verdict adequately supported.13 was procedures

The New York in this case therefore must examined, be as to their own only constitutionality, but as to their if consequences valid, weight given be to conclusions so reached.

The ideal of fair procedure was self-imposed by New long imposed York before it upon her. New York’s enjoined Constitution has process observance due law at least since 1821,14 provided and statute law has exclusion from evidence of coerced confessions since 1881.15 The Appeals charged Court of is the State with ultimate authority adjudge such a case as this to and redress violations of that mandate.

Their appeal, taken as matter of afforded right, peti- tioners a review with a per- latitude much wider than is mitted to us. That court, case, empowered a death statute order a new trial for law, errors of

13 prior A Appeals decision of the Court indicates will it reverse whenever appears evidence, regardless a coerced confession People Leyra, 353, 364, other evidence. See v. 302 N. Y. 553, E. However, appears probable N. 2d the court applying there was doctrine, law, not of New York but one which imposed by it considered this Court and the Fourteenth Amend ment. The appear New York rule does not to us to be free from People Fisher, doubt. See v. 419, 426, 336, 338; 249 N. Y. 164 N. E. People Samuels, People v. 163, 173, 302 N. 757, 762; Y. 96 N. E. 2d Leyra, 468, v. 304 N. Y. N. E. 2d 673. Const., I, N. Y. Art. 6. § 15N. Y. Proc., Code Crim. 395. Prior coerced confes § sions were excluded under common-law doctrines of evidence. See People Mondon, 496; People McMahon, v. 103 N. Y. N. E. 15 N. Y. 384.

172 evidence,” weight the “against to found be is conviction “that whatever any for reason is satisfied if the court or 16 it finds that Even where a new trial.” justice requires the denial “reasonably credit jury the could to had failed prosecution the if it considers that police,” charges to clear reasonably evidence available produce all be new trial where there can it will order “a coercion, People v. Mum the truth.” more for adequate a search 97, miani, 394, 403, 94, 180 N. E. 98. 401, Y. 258 N. Ap- the Court of range, within this Although, even our conviction, this peals upsetting found no cause for and searches the record penetrates judgment its review in the trial court. excluding York procedure adopted by

The New jury. the It re heavily coerced on confessions relies hearing admissibility, a as to but does quires preliminary that permit judge not make a final determination a must —ex may indeed, confession is admissible. He — clude any confession he convinced freely a made or that it was so made would verdict against weight may while he But, of evidence. against thus do prosecution, cast the die he cannot so against presents the accused. If the voluntariness issue question a fair fact, must he receive confession jury, leave proper instructions, under ultimate voluntary determination of its its character also Weiner, People 118, truthfulness. v. E. 248 N. Y. 161 N. 441. judge The is not required jury exclude the while Brasch, he hears as evidence to voluntariness, People v. N. Y. N. perhaps permitted E. is not so, Randazzio, do People N. Y. E. 147, 159, 87 N. 112, 117.

The trial court held a preliminary hearing to ad- missibility jury. of these confessions before No de-

16 Y. Proc., N. Code Crim. § objected requested hearing fendant with the absent. for each defendant The court advised counsel might that he witnesses cross-examine all called any behalf, State and offer and both privileges his own judge question exercised. ruled fact *15 resulted, which he submitted under instructions which authorized jury the to find the confessions coerced not only of because “force and intimidation and but fear” any also for “implied coercion because of the manner in which they were kept custody,” [the confessors] grounds and on both prove beyond the burden to rea- sonable doubt was placed upon the State.17 jury The were instructed as follows: gentlemen,

“Ladies and there have been received in evidence alleged by statements to have been made the defendant Caiman Cooper Harry and the defendant A. is Stein. It the contention of People the that these statements are in the nature of confessions and they freely voluntarily. that were made hand, On the other it is the contention made on Cooper behalf of the defendant Caiman Harry on behalf the defendant A. alleged Stein these that confes- sions are against valueless as them, evidence either of it is because contended on behalf each of these defendants that these state- ments were made because of force and intimidation and fear visited upon each of them police certain members of the state im- plied coercion because of they the manner in kept which were custody from apprehension alleged time until the confessions beyond were made. You must find a reasonable doubt these that confessions, them, or voluntary either of you was a one before would right have a to consider either of them. charge you “I that the law of respect this State with to a con- this,

fession is that a confession made defendant, a whether in judicial the course of proceeding a private or to person, a can be given against in evidence him unless made under the influence of fear produced by threats . . . .” judge

The further they instructed them that found that voluntary confessions they were then to consider whether their contents, any part them, were true. jury also was instructed that should not consider a state- outcome not leave the does procedure

New York with unfamiliar lay jury, of a finally caprice to the a has too, judge, The trial practice. trial techniques of powers to set broad resulting from heavy responsibility does not warrant if he thinks the evidence aside verdict which motion, submitted such it.18 Petitioners approval of his own adding weight judge denied, thus to the verdict. York is procedure

An of New attack on the fairness sup- witness stand to petitioners could take the charges counsel oaths, with their own their port, becoming subject against police made the state without subject law on State general cross-examination. It is clear the Court disputed and uncertain. had witnesses not have held it error such Appeals would subjected general Respond- been cross-examination.19 it is however, contend, and ents, petitioners deny, practice of trial courts to limit cross-examination *16 circumstances, and each under these cites records to its prosecutions position. confirm impossible It not that cross-examination could employed work a due no process. so as to denial of But Appellate basis is laid for such a contention here. courts any any guilt against ment one defendant as evidence of other defendant. portions objected charge

These of the court’s were not to. time, petitioners charge For the first the here claim that this requirements law, set forth the for under state but did voluntariness requirements set forth not the under voluntariness the Fourteenth They charge Amendment. instructing construe the court’s jury “implied involuntary. that does coercion” not make a confession agree do not charge, We with their of the construction and the fact objection no was made to it so indicates that did not con- event, object any strue it at the time it was made. In failure to made the matter unavailable here. Proc., Y.N. Crim. Code 465. § People Trybus, See 219 N. Y. 113 N. E. 538. prevent trial to discretion to courts exceptional leave took no But here the defendants injustice. abuse and of such permit call for or an exercise step which would They request ruling by discretion. made no for a suggestion trial and made no readiness court offer to however the cross-examination testify, restricted might be.20 do not know or how whether, far, We any court permitted would line cross-examina- tion, specific nor limitation would have what defendants will adjudge guilty claimed. trial court We by imputing ruling constructive abuse to it a that never was proposition made on a that never was to it. put

Petitioners’ attack unquali- is so unbounded and fied that it could prevail only the Fourteenth Amendment to were construed allow them to testify to their any coercion shielded police, from cross- examination If they whatever. had given such testi- mony, it would have been in direct with conflict police, depend decision would on which was believable. Certainly Constitution does not prohibit tests credibility which uni- American law formly applies If in open witnesses. court, free from violence or threat of it, obliged defendants had been admit incriminating might facts, it bear on the credibility of their claim facts same admitted police only response beating. And if they became 20As States, Witt done, success, without v. United 196 F. 2d Witt, In the defendant had testified in the absence of the he procedure could under federal to the voluntariness —as —as *17 of a confession. After the court had determined that it was admis sible, sought testify the defendant subject further same on the presence jury, requested but an order in from advance court that if so he did cross-examination would be restricted to what had order, been said on direct. The court refused to so and defendant taking States, refrained from v. United See also stand. Raffel 494, 497. 271 U. S. the State compel the Constitution does witnesses, showing former con- credibility by on their forego attack impressive had that each now know We victions? perjury.21 murder and another including record, one felony in dis- resulted would have testified Doubtless, to have it from keep would while silence jury, to the this closing think, after the verdict. We light until brought to being stayed off the case, they this any realistic view any subject them to would the State stand not because their records but because cross-examination improper proper one. any vulnerable made them inference adverse any not seek to draw The State did Adamson v. silence, cf. from their choice defendants the obvious fact California, 46, beyond S.U. charge repudiated, been their their confessions have not support, is left without testimonial police violence prior convictions as follows: Petitioners' *18 In undenied. the is account of confessions police the the other when every issue, as of issue, trial coercion of a accused the an go jury, case to has made a prosecution and disadvantage from silence the must choose between the safeguards testifying. that from Constitution assure silent; not right of a defendant to remain does the ad- enjoy him he and still may that remain silent that from We vantages might testifying. have resulted hear- say petitioners cannot have been denied a fair ing charge. coercion the inseparable from disadvantage

Petitioners suffer a produce they procedure issues raise in that this does not any definite, confes- open separate decision of the sion Being general verdict, peti- issue. cloaked not they really attacking tioners do know what result are all know, may here. For we the confession issue have been may agreed decided their favor. The jury were or at coerced, confessions least State had not met beyond the burden of a reason- proving able voluntary. doubt that If method of they is, submission as believe, we it leaves us constitutional, hypothetical review alternatives. method of trying This coercion issue to a is not informative as its disposition. Sometimes the permits record a or guess but inference, where other evi- learn, guilt dence strong a reviewing court cannot whether the final result was to or to reject receive con- guilt. fessions as evidence Perhaps serious, more practical cause of dissatisfaction any is the absence of as- surance that the confessions did serve makeweights in a compromise verdict, some jurors accepting confes- sions to overcome lingering guilt, reject- doubt of others ing but them finding their doubts satisfied other evi- dence, yet others all perhaps reaching never separate and definite conclusion toas the confessions but returning unanalytical impressionistic verdict disap- uniformly Courts heard. had based all means other are without but verdicts prove compromise *19 the practice. or control to ascertain than admonitions submitted, are issues are or more Defendants, when two discountenance, appropriate instructions entitled to ques- no However, discourage practice. forbid such and charge in this case. to the respect in as is raised this tion is exposure process of the certainty and cases, In civil by special verdict or submission sought by sometimes 49. But g., Proc., Civ. E. Fed. Rules interrogatories. of developed has techniques of these practice no general of Crim- Our own Rules procedure. American criminal gen- anything no for but provision Procedure make inal from has Indeed, departure this sometimes eral verdict. right by trial impairment as an of the been resisted Tessmer, 522, 137 N. 171 Mich. W. People see v. jury, Boggs, 106 S. E. which v. 87 W. Va. 214; State simple verdict that convicts usually implies general one or frees the accused. any private public favored

Nor have courts they jurors reasoned, as to how post-trial inquisition intimidate, and harass them. This operate lest beset of forbidden accept Court their own disclosure will Pless, damage McDonald v. quotient verdicts cases. compromise 238 U. S. 264. in a criminal case Nor whereby jurors exchanged some their on one convictions jurors issue return concession on another other States, v. “If evi- Hyde issue. United S. 347. U. used, dence thus secured could be thus would result what to be a private deliberation, be make was intended subject public investigation the constant the de- —to struction of all frankness and freedom of discussion and Pless, conference.” at supra, McDonald 267-268. reviewing But this of a court to inability see what the really has trial jury jury done inherent two any issues, departure or more from instruction is a risk The jury secrecy independence. inseparable from dissatisfac- concern and uncertainty, while cause not render tion in literature of does profession, unconstitutional. customary jury practice trial jury does not forbid The Fourteenth Amendment of the are free to allocate functions issue. states as Cf. Walker v. judge jury between see fit. Sauvinet, L. R. Co. v. 90; Minneapolis 92 U. S. & St. Bombolis, Many the New U. S. states emulate York while hold practice,22 presence others jury during preliminary hearing Despite is not error.23 problems trial, difficult such we will raised not strike down as procedures long unconstitutional so and widely approved by established judiciaries, state re *20 gardless personal of our opinion as to wisdom. their have, therefore,

We to the consider constitutional effect of both alternatives left to the jury by the court’s in- struction, assuming it to have followed or the one other. They very involve different considerations are best discussed separately.

IV. if Was Unconstitutional These Confessions

Were Used as the Basis of Conviction? Since may these convictions in rest whole or in part upon the confessions, we consider must whether they are a constitutionally permissible foundation for a finding of guilt.

Inquiries on which this Court must be satisfied are: (1) Under what circumstances were the confessions ob- tained? (2) Has the use of the repug- confessions been nant to “that fundamental fairness to essential the very concept justice”? of California, Lisenba v. 314 U. S. 22 Wigmore See cases in (3d ed.) cited 3 on Evidence § 23See Annotation 148 A. R. 546. Cf. United States v. L. Carignan, 36, 38, for U. S. rule federal courts. litigated before with that first is identical

236. The if identical within, second is jury. The trial court and appellate the state considered questions with, those evi- have the identical we questions, As both court. courts. At the thresh- both state that was before dence What, question: therefore, of lies inquiry, old our jury, of weight give do we verdict any, and the determination of rulings judge the trial of court? appellate state con- essentially here argument

Petitioners’ jurors York are mistaken judges clusions New super- as a we, by reweighing the same evidence and that This were coerced. should find that the confessions jury, a mis- scope review, misapprehends our function and may by some state courts conception which be shared of re- feel diminished sense with the result that a in confession sponsibility protecting defendants cases.24 Appeals State, in Newman Texas Court of Criminal 559, 562-563, 645, 651-652, said:

Tex. Cr. R. 187 W. 2d S. voluntary involuntary de- “The confession is or character a he a as to whether the accused at the time termined conclusion deny possession confesses is mental freedom confess suspected participation determine which the Su- crime and to preme independent Court the United will itself make an States examination, and, con- examination the facts from that reach a upon clusion based it finds to be the conceded and uncontro- what *21 verted facts. escape Supreme . is the the

“. . no from conclusion that [T]here potential jurisdiction Court of the United States has in all State by cases where it is accused that the claimed the conviction was based involuntary upon his confession. being true, position occupies

“Such the this in Court relation to unique by unique, such cases is both the and in that difficult — (Const. 5, 5; Constitution and the laws of this State Art. Art. sec. P.) 812, C. C. we the of resort are court last in criminal cases. If involuntary, we reach a conclusion that the such confession was itself to be com- this cannot allow course, Of Court issue any of by bound state court determination pletely fed- right, of claim else essential to decision of federal finding. eral distorted fact by law could be frustrated weight the give But that mean that we no does not record de novo or with below, approach decision or the appellate courts, the state open latitude of choice some Mr. such as New York Justice Appeals. the Court of Four- Brandéis, long for this warned that the Court, ago in not, process, teenth Amendment does due guaranteeing Milwaukee Elec- assure from immunity judicial error. Milwaukee, tric Railway Light & Co. 252 U. S. magni- It is only miscarriages of gravity such tude that in they expected cannot an en- happen lightened system justice, it if by be tolerated do, that review, cause us to intervene to the name of the weight Federal Constitution, conflicting evi- dence support by a decision court. state' It is common knowledge courtroom extortion by confessions “third-degree” charged is falsely methods as well denied falsely. practical problem is to separate from the true Primary, false. and most final, cases responsibility determining contested facts rests, and must rest, upon trial appellate state courts.

A jury and the trial judge knowing conditions, local — close to the scene of events, hearing and observing the parties witnesses and the same undeniable advan- —have tages any over appellate tribunal determining charge of coercion aof confession inas determining the binding upon conclusion society, the State and for under our (Art. 26) Constitution expressly sec. right State is denied the appeal in a criminal seeking case is therefore barred from a review Supreme that conclusion hand, Court. theOn other if we conclude that voluntary, confession was such conclusion is no final, binding sense only accused until Supreme reviewed Court of the United States.” *22 has issue crime. When guilt

main of charge there is no indication reviewed, and fairly been tried dis- been of judgment standards constitutional great own decision regarded, will accord to state’s we facts, conceded by and, impeachment absence of in the Nebraska, 55, 60; Gallegos 342 U. S. v. respect. decisive Lisenba Oklahoma, 596, 602-603; S. Lyons v. U. 219. California, 314 U. S. as a judgment accept this verdict

Accordingly, we or in evidence of resolution contradictions permissible facts urged, undisputed as conflicting unless, inferences judg- of of standards use incorrect constitutional indicate separate may by best be determined exami- ment. This conclusions, judg- in the following implicit nation not extorted (1) confessions were ments below: that these not (2) that these confessions by physical coercion; which, though physical short of coer- extorted methods inad- oppressive to render the confessions cion, were so as illegal detention (3) that admitted missible; petitioners at the time of the confessions did render them inadmissible. Physical or it Physical violence threat of violence.— prisoner during no

by the custodian of detention serves confessions that otherwise purpose, lawful invalidates convincing, be and is universally would condemned the law. need present, weigh When there is no or measure will its effects of the individual victim. as tendency innocent, guilty, as well risk than remote results of false confession rather suffer pain strong judges long ago immediate is so found necessary guard against miscarriages justice by treating any concurrently confession made with torture brutality untrustworthy threat of as too received guilt. evidence injuries

Admitted and bruises on defendants' bodies arraignment after were mute but unanswerable witnesses *23 persons recently subjected that their had been to violence Slight from tes evidence, some source. even interested during that it of timony, period occurred the detention or at the the police, prosecution hands of or failure the charge the with meet all evi reasonably available dence, might well have the of bel tipped scales decision here, ow.25 Even would have force there were any evidence whatever to connect the injuries admitted with period the interrogation. events or But is there no such word the record.

On the contrary, positive we have testimony of not police, materially inconsistent or inherently improb- able, unshaken on only expert cross-examination. The testimony on subject undisputed is and is that injuries may been have sustained before arrest. be- This comes more than a possibility when we that consider neither defendants nor anyone else tells us what defend- up ants were to in the period just prior to arrest. We are not from way convinced their criminal records and of life as now known to us, though jury, to the that their free days nights were from secure violence. This, with the confessions, whole concerning evidence leaves us no for throwing basis out the decisions of the courts below, prefer unless we simply the unsworn claims of defendants’ against counsel the evidence.

As to the inferences to be drawn from in- unexplained juries, under circumstances, these we should defer advantages judge of trial jury. For seven weeks they observed the day-to-day defendants, demeanor reactions; their attitudes and all knowledge we personalities their is still photographs two of them. The trial judge and long also periods could ob- police serve officers whose in question, conduct was only knew not they what answered but how an- they People Barbato, See 254 N. Y. E.N. 458. of their attitudes —of opinions some swered, form could into get never can characteristics which personal or unbelief which make for belief record but printed cruelty and violence. guilty find properly state court could that the determine We force by physical not obtained the confessions were or threats. is coercion Psychological Psychological coercion.— It ad- urged secondary

claimed contention. interrogation, pressure by psychological show mitted facts petitioners’ these mental resistance overpower as to such *24 process a course, confessions. Of involuntary and induce unremitting, interrogation prolonged of can be so deprivation of refresh- accompanied by especially when an accomplish to extortion of invol- ment, relief, as rest untary confession. allegations has a different inquiry

But the as such inherently co- point departure. Interrogation of ercive, Interrogation does have physical as is violence. not. as force does solving crime, physical social value themselves, By many suspects their own answers clear out an- frequently points the information give interrogation of those who guilty. Indeed, other who is something know about the facts is the chief means of duty knowledge solution of crime. The to disclose It known upon crime all citizens. is so vital that one rests bail, detained, may be innocent the absence This Court never has held a material witness.26 from a such prohibits the Fourteenth Amendment state suspect as under the interrogation detention and a and not coercive. appears reasonable circumstances But the limits course, inquiries Of such have limits. “in- calling interrogation an merely by not defined are Proc., Proc., §618-b; Rules Crim. N. Y. Code Crim. cf. Fed. (b). quisition,” which adds to the problem only emotions inherited from experience. any medieval The limits depend case upon weighing pres- of the circumstances of sure against power person resistance of the con- fessing. overpowering What would be to the weak will or might mind be utterly against ineffective an ex- perienced criminal.

Both Stein and Cooper only confessed after about twelve hours of questioning. intermittent In each case this was stretched out over a 32-hour with the period, suspect sleeping eating In the interim. the case Cooper, substantial part of this time he spent driving a bargain with police parole and the It officers. also is true that the questioning was aby number of officers at a time and by different officers at different times. But we say cannot that the use of successive officers to ques- tion petitioners these for the periods of time indicated is so oppressive as to powers overwhelm of resistance. While we have reversed convictions founded on confes- sions through secured interrogations by “relays,” we have also sustained conviction when, under different cir- cumstances, relay technique was employed.28 But we gone have never so far as hold the Four- *25 teenth Amendment requires a one-to-one ratio between interrogators and or prisoners, ques- extensive tioning of a prisoner automatically makes the evidence gives he in response constitutionally prohibited. The inward consciousness of having committed a mur- der and a robbery and being confronted with evidence of guilt they which could deny neither nor explain seems enough to account for the confessions here. These men were not young, soft, ignorant or timid. They were not Malinski v. 401; York, 324 U. S. New Watts v. 338 U. S. Indiana, 49; Turner v. Pennsylvania, 62; 338 U. S. v. South Harris Carolina, 68; 338 U. S. v. 322 U. S. 143. Tennessee, Ashcraft Lisenba California, at supra, 239. detection, nor or its of crime ways in the

inexperienced end of very At the rights. their dumb as to they were naming his own Cooper spectacle his the interrogation, whom he himself with for confession, deciding terms a considera- he wanted as what negotiate, getting would absurdity his to telling knew, he reduces tion for what Of into that he was coerced confession. present claim in the sense voluntary were not these confessions course, they were to make them that wanted petitioners priest, to a like a confession spontaneous, completely no criminal But in this sense psychiatrist. or a lawyer, voluntary. is confession when obviously and came

Cooper’s Stein’s confessions their dance was over and they were convinced then, Cooper Even was pay time had come to fiddler. so in control of himself and the situation as dictate far That quid pro quo for which he would confess. con- at when must known that the fession came a time he police already enough, Jeppeson Brassett, from knew to make his Stein held out until implication inevitable. implicated him.29 Both Cooper after had confessed “voluntary,” only were sense which confessions police by suspicion one under arrest and confessions ever are. The find an properly state courts could absence of psychological coercion. Illegal Illegal detention alone is said to detention. — prisoners

void these confessions. All three at held incommunicado the barracks until the evening when nearby June were taken before a magis- This arraigned. delay arraignment trate judge held the trial be unreasonable as matter that, subsequent confession, An officer testified to his “He rotten-Cooper, said ‘That hard believe [Stein] put way he did; put right would me he he me .’ in the into . . [continuing] seat; had; well, I was the best friend he ever —into *26 go, if I must I him me.” will take with

187 a of the of law and violation statutes State of However, delay New York.30 such does not make a con- during period illegal fession secured such detention necessarily inadmissible as a matter of New York law.31

To delay arraignment, holding suspect meanwhile incommunicado, usually accompanies facilitates and use “third-degree” Therefore, regard methods. we such occurrences as relevant circumstantial evidence as to inquiry physical psychological coercion. such, As it was received and the jury was instructed to consider it in this petitioners’ case. But the goes contention here delayed farther —it is that the arraignment compelled the rejection of the confessions.

Petitioners confuse the rigid more rule of exclusion which, the exercise of our supervisory power,32we have promulgated for federal courts with the more limited requirements of the Fourteenth Amendment.33 This, we held, did not impose rules of evidence on state courts which bind them to exclude a confession because, without

30 law, Under York promptly New a defendant must be taken before magistrate, Code of Procedure, 165, Criminal and failure so to do § arresting renders prosecution. officer liable to criminal N. Y. Law, Penal § law, Under New York given during the fact that a confession was period illegal detention is one factor to be considered in deter mining voluntary; whether or not it was but it does not make the per People Trybus, se. confession 18, inadmissible v. 219 N. Y. 538; People Mummiani, N. E. v. 394, 180 258 N. Y. N. E. 94. 32Admissibility governed by in federal courts is “principles of the they may common interpreted by law as the courts of the United light experience.” States in the of reason and Fed. Rules Crim. Proc., 26. 33Compare States, McNabb v. United 332, with Stroble 318 U. S. California, 181, 197; v. States, Weeks v. United 343 U. 232 U. S. S. Colorado, with v. States, Nardone v. United 25; U. S. Wolf States, Weiss v. United 302 U. S. 321, 329, 308 U. S. with Texas, Schwartz v. Carignan, S. 199. See also United States U. 342 U. S. 36.

188 was uncoun- prisoner while a it obtained coercion, was California, Stroble illegally detained. seled California, S. 219. U. Lisenba v. 181, 197; U. S. we considerations, conclude foregoing the From were admissible the confessions jury if resolved the error. it was not constitutional for as basis conviction a Rejected Jury Confessions, it Could the the V. If Constitutionally a on Base Conviction Evidence? Sufficient

Other request a for instruc raised question this Petitioners to have that if found the confessions jury tion the it of This acquittal. must a it return verdict been coerced requested for the principal authority Their refused. was York, which v. New U. S. is Malinski charge here. This procedure the same followed tried four opinion and the of Jus Court reversed conviction of found therein to been tices said the confession (p. 404): trial, “And if it is introduced at coerced though the of will be set aside even judgment conviction have been apart might from the confession evidence expres jury’s sufficient sustain the verdict.” Similar sions are to be found in other cases. why jury

It is hard to a be allowed return see should If having verdict which cannot be allowed to stand. prevents heard an illegally legal obtained confession guilty why permit verdict other sufficient evidence, illegal? alternative, return one foredoomed to be course, is acquittal, petitioners an which what asked. far-reaching. The claim is There can no trial coercion bringing issue without knowledge jurors the fact usually of confession and its con- But American practice tents. has technique evolved no for learning, through special verdict or otherwise, what part knowledge plays the result. Hence di- lemma of is always this case present, presented any convic- uncertainty If invalidates this earlier cases. matter, grave it is a acquittal, requires tion or after prosecution no York, permit like New states, most imprac- making far toward go This would acquittal.34 jury, a tradi- to the to submit the issue of coercion ticable advantage be of on the whole to practice tional assumed to the accused. protection to the defense and an additional has decided This Court never The claim also is novel. *28 evidence, if we of a confession into even reception that discharge coerced, requires acquittal held it to be contrary, the this Court has returned a defendant. On not done retrial, all cases for which we should have such use of a coerced confession obtaining attempted enough require acquittal. apart It not deniable that from the Malinski other statement there have been similar utterances. Oklahoma, (footnote); 322 597 Stroble Lyons 596, v. U. S. Nebraska, Gallegos 342 California, 181, 190; v. 343 v. U. S. 55, clear, however, U. It is these statements S. result, about a not the proposition were dicta essential to in each instance those confessions were sustained and since the And, course, present convictions affirmed. con sequences argued were not asserted or at the bar nor antic ipated or in approved by anything appearing opinions. Malinski, in

Except question presented here could power been raised or decided. This Court’s a in Brown reverse such conviction was first exerted 278, only v. 297 S. which the evidence Mississippi, U. admittedly the trial consisted of a confession se- through cured mob violence. The Court there reasoned solely if the “trial” of the defendant’s consisted a evidence, only introduction of such he had “mere pretense” had trial; during of a the actual trial occurred the extortion of confession, subsequent pro- and the

34 Const., I, N. Y. Art. 6.§ mob’s action. ratification only a formal

ceeding of the Due Process be a violation would proceeding a Such In Ash- restricted view. the most under even Clause Texas, v. Tennessee, 143, 145, and Ward U. S. craft there that without the confession we noted S.U. no Lyons, there was cred- And be no conviction. could confession; except in the record guilt ible evidence without Gallegos noted that conviction case, it is impossible” logically have been “would confession jury 60) and this Court therefore assumed (p. voluntary. found the statements think our do not Against background, this factual we to a state cases establish that submit confession disquali- judgment automatically of the coercion issue finding it from on other sufficient evi- fies conviction rejects if it Here the evidence of dence, the confession.35 States, authority, Bram v. United has 168 U. S. been cited as automatically proposition for the that an inadmissible confession requires reversal, language (p. 541): “Having because of been this *29 being only fact, offered as a confession and admissible because of that proof a consideration the measure of which resulted from it does determining admissibility. not arise in its If found to been illegally admitted, result, prosecution error reversible will since the prove guilt, cannot on the one hand offer evidence to and which very tending end, the offer is vouched as to that and on the purpose avoiding consequences error, other hand for the the of the wrongful admission, caused its be heard to assert matter prejudicial offered as a confession was not because it did not tend prove guilt.” language, to superficially applicable But while question hand, problem to the at was addressed to no such in the Bram case. There the prosecution had introduced into evidence a illegally conversation prisoner between held and uncounseled prisoner a stated, reply allegation detective which the to an prisoner that one “X” vantage had seen the commit crime a from his point ship’s wheel, at a that “he could not see me from there.” [X] position The Government in the Bram case that took the this state ment, voluntary, even if confession, not was not a since its author guilt, consisting testimony surviving direct of the vic- tim, Waterbury, accomplice, and the well-corroborated incriminating as well as circumstances unex- Dorfman, plained, enough from the it apart is confessions so that could not be to constitutionally legally held insufficient jury warrant if Indeed, verdict. the confessions had been omitted and the convictions rested on the other evi- alone, would grounds review, dence we find no to not to mention them. to reverse

We would have a different question procedure had been that may which have been in mind when some of our cases were Of course, judge written. where the makes a final determination that a admis- confession is it part sible and sends to the as of the evidence of guilt considered on the issue admit- ruling and the purported deny, admit, guilt. quoted language not position. points is As out, Court the answer to this the Court theory evidence on was introduced it tended to admit guilt, only theory would have been admissible. It therefore must be treated as confession. The sentences immedi- ately preceding quoted language bring this out: “It mani- ground upon proof fest that the sole which the of the conversation only was tendered confession, was that it was a this was hypothesis upon conceivable legally which it could have been admitted jury. determining to the It is also proper clear that in whether the admission, foundation was laid for its we are not with concerned how prove guilt.” far the confession tended Thus, merely Bram decided that a confession otherwise erroneous merely could not be used because the defendant claimed that it did precisely incriminate him. This is subsequently what this Court Texas, held in White v. 310 U. S. 530. any event,

In the Bram ease was a federal case where we exercised supervisory power merely rather than enforced the Fourteenth upon Amendment. It is not a rock which build constitutional *30 According Wigmore (3d ed., doctrine. 3, pp. 2), 240-241, Vol. n. represents this height absurdity decision misapplication “the law,” by subsequent and has been discredited cases. erroneous, be found on review the confession ting fall with should normally, at conviction, least confession. only jury put before are here the confessions

But as to voluntariness subject judgment to its tentatively, and they rejected be binding and instructions with doubt beyond reasonable found ignored unless point, on this By hypothesis voluntary. petitioners’ been ample other rejected itself confessions. convincing, possible, very a if not makes this evidence By very assumption, of the verdict. explanation error, has been no the confessions there however, the jury. the free choice of finally rejected contingent and provisional hold that such We could precludes a on the verdict presentation confessions rejected only are we evidence after other sufficient rigid to enact a the Fourteenth Amendment deemed guarantee a exclusionary rule of evidence rather than untrustworthy on inherently evidence. against conviction exclusionary to hold rule have refused enact We other illegally in the case of obtained evidence. Wolf Colorado, Texas, 25; v. v. 338 U. S. Schwartz S.U. Massachusetts, Snyder v. 97. See Adam- 199; U. S. California, Carignan, v. 46; son U. S. United States 342 U. confessions are not more stained S. Coerced with than other obtained illegality evidence violation But on a of law. reliance coerced confession vitiates a per- combines conviction because such confession of apparent judicial conclusiveness with what suasiveness illusory to be experience deceptive shows evidence. any A foundation for forced confession is false convic- evidence tion, by illegal seizure, while obtained search wire often tapping, larceny may is of the utmost verity. police may Such lawlessness therefore not void state convictions while forced confessions will do so. *31 find refusing We no error in in instruction asked this case.

But petitioners’ this does not exhaust of objec- arsenal tions. They argue that even if permitted to find the verdict, reviewing court must it set aside. They say that affirmance opinion may without mean that, while the Court of Appeals thought the treatment of the confessions it erroneous, may affirmed on basis that, in view of other sufficient evidence, the error was harmless. The New York statute,36 like the Federal Rules of Criminal Procedure,37commands reviewing courts to disregard irregularities errors and which do not af- fect substantial rights. That a general legislative such mandate is constitutional is not If question. general rule is not prohibited, question each case becomes one as to the propriety application its the evidence. In a trial this, lasting weeks, such as seven where objections by three required defense counsel excess of three hundred rulings by the trial court with- out the long deliberation and possible appel- debate late court consideration, it would be miracle there were not some questions appellate on which an court would rule than judge. otherwise did the trial harmless-error statutes adopted give have been dis- cretion to overlook errors which cannot be seen to do injustice.

But, may whatever grounds have been the of the Court of Appeals, we base our decision, upon grounds error has been harmless, but find upon ground that we no constitutional error. pointed We have out that was not error if the jury admitted and relied on the confes- sion and was not if they error rejected it and convicted 36N. Y. Proc., Code Crim. § (a). Fed. Proc., Rules Crim. no error although there To say

other evidence. require would must reverse court appellate trial are able than we authority by more justification discover.

VI. Wissner’s Case. disposition and its different is somewhat case Wissner’s confessed, never Wissner considerations. involves other objections His who did. by those implicated he but was to which of the confessions admissibility questions raise party. he not a was no regards find Wissner constitutional

However, we his setting aside our justify as would error such conviction. for the state courts holding permissible was

Our away the voluntary takes to find that the confessions were if the position But, even support for Wissner’s here. involuntary, were to have been confessions considered any right not their use would have violated federal York, Malinski v. New 324 U. S. 410-412. 401, Wissner’s. the conviction of This Court there refused to reverse named Rudish, of Malinski who had been a codefendant name in is true that Rudish’s the latter’s confession. It place in an “X” substituted its was there deleted and of this device jury got before the the confession. Use been the Court’s appear controlling does to have dissenting, pointed Mr. Rutledge, Justice decision out what no that “The devices were so questioned, one emphasize the of those perhaps identity obvious as to remand, P. purported to conceal.” 430. On New York Court of on its own ordered Appeals initiative well 294 new trial for Rudish as as Malinski. N. Y. light testimony E. 2d 77. of the other Surely N. such a from confessions not have deletion here would incriminating from diverted their statements Wissner an anonymous nobody. however, contends that

Wissner, rights his federal were infringed because he was unable to cross-examine accus e., ing i. witnesses, the confessors. He contends that the “privilege of confrontation” is secured the Fourteenth Amendment, relying on in Snyder one sentence v. Massa chusetts, 291 U. S. 107.38 However, the words cited quoted States, verbatim from Dowdell v. United U. S. 325, 330, which the language was used to purpose describe the of the Sixth provi Amendment sion on confrontation federal cases. It was transposed Snyder solely point out the distinction between right of confrontation and a right mere of an accused be present at his own trial.39 in Snyder spe The Court cifically refrained from holding right there any of confrontation under Amendment,40 Fourteenth and clearly held to the contrary in Louisiana, West v. *33 U. S. 258, which it was decided that the Federal Con stitution did not preclude from using Louisiana affidavits on a criminal trial.

“38 qt prevent was intended to upon the conviction of the accused depositions parte affidavits, or ex particularly preserve to right of the accused to test the recollection of the witness in the ” right exercise of the of cross-examination.’ Petitioner Wissner erroneously beginning assumes that “It” at the refers sentence to the Fourteenth Amendment. 39Snyder involved a contention state convict that he was process denied due prevented when the going along court him from when the went to view the area where the crime was committed. Among many deciding against bases for defendant, Court, through Mr. Cardozo, pointed Justice out that even if he had a right federal (and to confrontation not) the Court indicated he did his exclusion from a view would not offend it. Hence the use of the language quoted describing right the nature of the of confrontation. present purposes “For privilege we assume that the is reinforced by the Amendment, though Fourteenth squarely this has not been held. [Citing cases, one of which is S., West v. 291 U. Louisiana.]" at 106. the introduction to objection Wissner’s

Basically, hearsay. The him are is that as these confessions its anomalies subtleties, with all rule, hearsay-evidence the Fourteenth be read into not ramifications, will Louisiana, supra. v.West Amendment. Cf. York courts adopted by the New methods

Perhaps the from the any disadvantage against protect Wissner confessions Cooper Stein use of State’s procedure But does conceivable. “its the most effective because Amendment not run foul of Fourteenth thinking to fairer to our may method seem another to the protection promise or to a surer give or wiser Massachusetts, at supra, Snyder v. prisoner at bar.” 105.

VII. denounced has been too often Third-degree violence repe- come out of mere by courts for useful to anything and, in tition of It is a crime under state law invectives. v. United circumstances, some under federal law. Screws States, F. States, 325 91; U. S. Koehler United 2d U. S. penalty death, we, judges,

When the like state court even, tempted are to strain the evidence and close cases, give doubtfully the law in condemned order to slightest man another chance. But we cannot see the justification reading the Fourteenth Amendment deny power hold the State New York the these de- *34 guilty fendants on the record before us.41 We are not willing to discredit constitutional doctrines protection by making for of the of them mere innocent Hall, Society, L. See Police and Law in a Democratic 28 Ind. J. 133, 175-176; Inbau, The Dilemma in the States Confession United Supreme Court, 43 Ill. L. Rev. 442. loopholes guilty. pe- escape

technical people trial review. The titioners have had fair and fair process are also entitled to due of law. the State Affirmed. Black, Mr. dissenting. Justice Douglas’ I in Mr. opinion. concur Justice safeguards go right More constitutional one, here — of a from person arbitrary be free con seizure, secret police and bludgeoning testify finement to make him against himself in of relative, counsel; absence friend or another, right of an accused confront and cross- who examine witnesses swear he is crime. guilty of Tyrannies subjected fife always and such liberty secret oppressive practices. and But inquisitorial many cases, beginning early at least as Chambers v. Florida, 309 227, U. S. this Court aside set state convic process tions as violative due when based on confessions police extracted state while suspects held incom municado. That greatly line of cases is weakened not repudiated by today’s sanction the arbitrary seizure questioning secret the defendants here. State police wishing to seize hold people incommunicado are now given green light. Moreover, the Court actu ally (unnecessarily, holds I think) are states free to deny defendants an opportunity to confront and cross- examine witnesses testify against who them, even in death cases. This also runs counter to what we have said due process guarantees Oliver, an accused. In re 333 U. S. today’s 273.* Lastly, opinion takes this opportunity *1 do Louisiana, West understand that 194 U. held S. contrary. pp. It did hold at 263-264 state could introduce depositions for the reason that accused had “been once confronted , with the opportunity , witness and has had him cross-examine beyond and he is permanently a non-resident jurisdiction the State . . .” .

198 given previously this Court has scope narrow the to person no “shall guarantee Fifth Amendment’s against abe witness any criminal case to compelled 544, States, 532, 168 U. S. Bram v. United himself.” federal forbids provision constitutional held this into a “push him accused, or officers “browbeat” . . . .” him entrap into fatal contradictions corner, and to those repudiates the Bram The Court adds case agreeing Wigmore Professor today, apparently with height represents “the opinion Mr. Justice there White’s absurdity . . . down short, opinion In and break holding the Court’s in the way barriers that have heretofore stood secret per against directed arbitrary governmental action unorthodoxy. My or suspected political sons of crime or objection by any governmental agent action such for illus agency many opinions. has been set out See Florida, v. tration, supra, Chambers v. Ashcraft Tennessee, 274 143, (alleged 322 U. S. 327 S. confes U. sions held suspects extracted without violence while at the In re mercy police officers); incommunicado Oliver, 333 (secret 257 U. S. conviction based on incom municado questioning judges three where the accused had neither relative, friend nor counsel Joint present); McGrath, Refugee Anti-Fascist Committee v. 341 S.U. 142 123, (Attorney public General’s condemnation groups as treasonable and in subversive based on secret formation without notice hearing); dissenting opin Nebraska, ions, Gallegos 55, v. 342 S. (arbitrary U. arrest, imprisonment secret systematic questioning to obtain an alleged confession); Landon, Carlson v. U. S. 547 (Attorney denial of General’s bail based on secret charges by secret informers affording without Watkins, accused a hearing); Ludecke v. U. S. 173 (Attorney General’s judicially unreviewable banish ment of an alien based secret undisclosed information Shaughnessy United States hearing); and without *36 Mezei, ex rel. judi- S. (Attorney U. General’s and denial of bail to cially imprisonment unreviewable an alien information and based secret undisclosed hearing). without a

I join Mr. Justice Mr. Justice Frankfurter Douglas in protesting in the Court’s action these cases. Frankfurter,

Mr. Justice dissenting. 1. Of course the Fourteenth Amendment is not to be applied so as to turn this Court into a tribunal for revision of criminal I convictions the State courts. have on more than one expressed my strong occasion belief that the of requirements process hamper States, due do not beyond the imposing narrow limits of them stand- upon ards of decency deeply widely recognized felt and Anglo-American jurisdictions, penalizing either conduct or in defining procedures for appropriate securing obedi- penal ence to laws. of autonomy Nor is this substantial capital States to be curtailed in cases. 2. ground degree It is common the third —the colloquial subjecting police pres- term accused to sures in order may point to extract reach a confessions — where confessions, although resulting from the application of physical force, are as matter human experience equally any the results of fair coercion term in- meaning “voluntary” and therefore not any relevant sense. Differences of inevitably view arise among judges in deciding point when that has been reached. long Such differences are reflected in a series of cases in An important this Court. no factor, doubt, influencing the different varying conclusions is the inten- sity feeling part judges on the of different that coercive police methods not only may bring into the trust- question of a worthiness confession but tend to brutalize habits thereby police, part on the feeling and action community. of the tone the moral affecting adversely be accorded is to deference most serious course, Of a confession court by a State reached the conclusion in Malinski concurring opinions my See was not coerced. Ohio, 332 U. S. Haley v. York, 401, 412; S.U. v. New allowed cannot of deference duty But the Court by this an abdication into to slide imperceptibly the cir- under whether, to ascertain obligation of its repre- a confession case, particular of a cumstances of an conscience, the need of a guilty sents not the candor release means of himself, but to unburden accused police screws. psychological tightening from *37 regard to the con- be decided without must This issue by reliable other the confession firmation of details must not be influenced determination evidence. The of certitude that the accused feeling an by irrelevant he confessed. Above of the crime which guilty is knowledge, by not be influenced however all, it must that the accused is a bad itself, may it have revealed All of this, not out long man with a criminal record. reached but because we have for the accused tenderness stage of civilization. a certain compelled I am considerations, In of these light the of product that the confessions here were the to conclude I believe that these police pressure. cannot coercive of the under which in view circumstances confessions, would admitted a criminal elicited, be in the of Australia or England, Canada, trial courts I Court another regret India. the reaches conclu- I record, though respect sion on the a conscientious differing of the record from mine. interpretation goes beyond 3. But Court a mere evaluation of the needlessly of this record. It makes a broad the facts I what had assumed was ruling of law which overturns sua It does so law. of constitutional principle a settled argued not not raised and question sponte. opinion. Un- in the Court’s first time emerged for the has opinion, the Court’s reach of about the I am mistaken less now holds Court am, that I the hope and I profoundly court highest sustained a criminal conviction of involving a sentence one especially more State, of a though even trial, for a new to be reversed death, is not a coerced confession entered into conviction there prohibition disregards in and of itself which Amendment. of the Fourteenth Due Process Clause for a defendant enough not now holds that The Court pro- of a deprived that he was in this Court to establish States Constitution of United which the tection if the evidence prove must also him; affords he would not excised there admitted were unconstitutionally guilt. to find enough left authorize opinion, questioned An never impressive body has established Court, of this any expression decision or only with refer- And this contrary principle. confessions; admissibility ence coerced aspects disregard other principle governed has Amendment State of the Fourteenth requirements in the I inter alia to cases of discrimination trials. refer found grand jury of a which personnel selection though in such cases even *38 indictment. We reversed in of there was no error the conduct the trial itself. compelled say 4. It to be to the Court painful is in taking retrogressive step the administration of I it justice. only hope temporary, can is a criminal hoc, an ad from a of perhaps long deviation course By change decisions. its of direction the Court affords police prosecutors employ new inducement and whose degree, the third use Wickersham Commis- years ago sion found more than and “widespread” thirty . . vio- . as “conduct condemned unsparingly which of constitutional principles fundamental of the lative on Law Ob National Commission Reports, liberty.” IV (1931).* Enforcement, 1, 4, and servance “to duty deemed it its Commission The Wickersham existing facts —of naked, ugly lay the facts —the arousing id., hope of at public,” before the abuses of condemnation, thereby public awareness, and public self-deluding or boastful surely It is not abuses. such this Court of cases which to believe that the series helped of abuses because such reversed convictions prosecutors opinion to arouse public educate a more fear but also con- police only a wholesome brutal feeling against lazy, resort to these scientious methods. officials,

In law addressing himself enforcement of In- Edgar Director J. Hoover of the Federal Bureau vestigation has made these observations: “One bring quickest ways any law enforcement officer to public disrepute upon himself, organization his and the great weight findings

*The to be attached to the of the Wickersham impressive experience represented by is attested Commission Chairman, George the members of that Commission. The W. Wick- ersham, Attorneys was one of the most notable General in the his- tory office; Baker, distinguished public Newton D. after Secretary recog- Mayor War, career as of Cleveland and became a bar; long of our I. had a career as one nized leader William Grubb bench; Kenyon judges the most esteemed the federal William S. served with distinction first as a United States Senator and later as judge; judg- Monte M. Lemann contributed the balanced a federal bar; recognized position L. from his at the Frank ment derived general qualifications, brought Loesch, apart his from to the work competence specialized the administration of of the Commission law; Paul J. McCormick was States district criminal a United hardheadedness; judge conspicuous courage Dean Roscoe only Pound’s “Criminal in America” is one bit of evidence Justice authority speaks with which he in this field. *39 of guilty to be found of a violation profession entire is all rights . . violations are the more rights. civil . Civil they unnecessary. because are so Professional regrettable fighting crime provide in law enforcement standards (FBI rather than force.” Law Enforce- intelligence with 1.) But if law officers Bulletin, September, 1952, p. ment with- learn that from now on can coerce confessions risk, judges may out since trial admit such confessions that, perhaps through very process provided only other evidence has been extorting them, procured future sustained, police which conviction can be past easy ugly even more so than will take the but I path degree. remotely suggest of the third do any contemplated by such result the Court. But it will not be the first time that results neither desired opinion nor foreseen have followed.

5. The matters which I briefly have thus stated cut so deep as to for full exposition. promptness call Since disposition of criminal im- cases is one the most portant system justice, factors for a civilized criminal I myself my must content now with this summary views without their elaboration. Douglas,

Mr. Justice with whom Mr. Justice Black concurs, dissenting.

If the opinion of the Court says, means what it we are entering a new upon regime of constitutional law that give should citizen every pause. Heretofore constitu- rights tional greater dignity have had than rules They guarantees evidence. have constituted that are They inviolable. have been a bulwark against over- zealous inhuman investigators, police, unscrupulous prosecutors. They placed prohibition prac- ori tices which An history showed were infamous. officer *40 law- acting practices indulged prohibited the

who products way employ in any not and he could lessly; whose consti- the citizen against of his lawless activities But now is said infringed. rights tutional enough if evidence shown, not there was if prejudice citizen’s constitu- of the invasion of the regardless convict must stand and of conviction right, judgment tional death. be sent to his defendant a cut the Court chooses short In that course taking to our constitutional scheme. which does violence a right guaranteed defendant The denial of been treated this Court has never the Constitution proceedings which, in the below a matter of mere error rights, might disregarded. affecting not substantial Alabama, 45, the rule Powell v. 287 U. S. established least, at process requires, that due certain cases represent indigent counsel to appoint court state right to right defendant. And the to counsel includes the adequate prepa- in time to allow appointed have counsel in any Powell nor ration the case. Neither case of the evidence weight those which followed it has the against to the issue of the defendant been deemed relevant 312 O’Grady, v. validity the conviction. See Smith Kaiser, v. 471; U. S. S. Tomkins 329; Williams v. U. Missouri, Michigan, 485; U. S. De Meerleer v. Olson, 663. In U. S. Hawk v. 326 U. S. at we said: may may

“Continuance not have been useful to accused, importance but the assistance charge counsel a serious criminal arraign- after large permit speculation ment is too on its effect. . . .

“Petitioner a good states cause of action when he alleges support facts which his contention that through denial of asserted constitutional rights he which trial in a court the kind of state has had Amend- of the Fourteenth process the due clause ment requires.” made has prosecution

A rule where the prevails similar an accused. testimony to convict knowing perjured use of Florida, Holohan, Hysler v. Mooney 103, 112; 294 U. S. Kansas, 317 It has never Pyle v. U. S. 411; 315 U. S. attempt perjured to weed the thought necessary been purpose for the of deter nonperjured from the testimony mining degree prejudice which resulted. Oliver, *41 257, In 333 S. we reversed convic-

In re U. on a trial in which the contempt based secret tion charge denied reasonable notice of the defendant was a prepare defense, to the against him, opportunity the behalf, right on his own confront right testify right represented him and the against the witnesses argue I would that one, suppose, No such by counsel. merely because the a conviction should be sustained conclusively that the defendant quite record indicated guilty. In Moore 261 Dempsey, 86, v. S. the Court dealt U. a had been with claim that defendants convicted a trial dominated a mob. The defendants were charged They with the murder of one Lee. professed Mr. their innocence before the Court. Justice Holmes disposed of the assertion with these words: petitioners

“The been say Lee must have killed whites, other but that we leave on one side as what we to deal with petitioners’ is not guilt solely innocence or but whether question rights preserved.” their constitutional have been practice discriminating Another illustration is the of against In Negroes juries. the selection of none of the Delaware, from cases Neal v. U. S. Carter Avery Georgia, v. U. S. down to Texas, S. v. 177 U. showing lack of a has the 25, 1953, May 559, decided said indeed reversal. We precluded prejudice of actual failed commissioners jury Avery case in the nondiscriminatory method a to use duty in their must be reversed —no "conviction a selecting jury, guilt.” petitioner’s strong the evidence matter how The Consti- plain. 561. The reason S., at U. by juries to be tried Negroes right gives tution from community, hand-picked entire drawn from the now show Negro Must a people alone. the white his race because none of prejudice he suffered actual jury? served on the right of the accused counsel, requirement

The right against him, his with the witnesses to be confronted to a fair and charge, right of the his given to be notice drawn from a fair tribunal, right his impartial guarantees of these community cross-section —none precise prohi- is more than the given by the Constitution coerced confessions. against bition is, indeed, contrary now announced to our rule with prior dealing decisions the effect a coerced confes- judgment sion conviction. See Malinski New *42 York, 401, California, 324 404; Stroble v. 343 S. U. S. U. Oklahoma, Lyons Haley 322 181, 190; 596, 597; v. U. S. Ohio, Nebraska, v. 599; Gallegos S. 342 U. S. U. rulings

The Court’s characterization of these dicta In is not correct. the Malinski a case conviction was reversed though might sup- even other evidence ported Lyons (where In verdict. case the second confession drawn question) (322 S., was we noted at U. 598) objec- that a third confession was introduced without tion. in spite Yet of that opin- fact we devoted a whole ion to analysis whether second confession In voluntary. the Stroble ease the California Supreme Court had held that challenged the use had not deprived petitioner process, confession due appear since it did not that the outcome of trial would have been different if the confession had been excluded. S., at 189. disapproved pro- U. We view and ceeded on the of our authority decisions the Malinski Lyons cases to surrounding examine the facts Id., confession to see if voluntary. it was at 190-191. In each of those three cases we dealt with the merits of the claims that the confessions were wholly coerced—a un- necessary task had the rule as stated the Malinski case not been controlling. with respect

And to the Malinski case, should be that, noted despite dissent four no one took Justices, exception to the rule that the use a coerced confession violates due process.

Perhaps the decision in the instant premised cases is on the view that due process prohibits the use of coerced confessions merely because of their inherent untrust- worthiness. If so, that too is a departure radical from the rationale of prior our In California, decisions. Lisenba v. S. 219, 236, U. Mr. Justice Roberts, speaking Court concerning the inadmissibility of coerced confes- sions, said: aim

“The of the requirement of process due is not to exclude presumptively false but to evidence, pre- vent fundamental unfairness of evidence, use whether true or false.”

As Mr. Justice states in his dissenting Frankfurter opinion, that product rule is the of a civilization which, by respecting the dignity even of the worthy least citizen, raises the stature of all of us and builds an atmosphere of trust and in government. confidence *43 violation plain now sanctioned is a practice made Amendment, applicable

command of Fifth (see Mississippi, Brown v. "the Fourteenth States Florida, 227, S. Chambers v. 309 U. 278, 286; 297 U. S. against testify man can 238), compelled no our until guide himself.* That should be the decisions unless Fifth Amendment is itself amended rule incorporate today the Court announces. undisputed confessions *From the facts it seems clear these thought school be condemned if the constitutional which would Haley Ohio, Indiana, Watts v. prevailed 596, when v. 332 U. S. Pennsylvania, Turner and Harris v. South 62, U. S. U. S. Carolina, S. were decided still was dominant one. U.