Post-Arraignment Safeguards for Jailhouse Interrogation*
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1228 THE YALE LAW JOURNAL [Vol. 60 POST-ARRAIGNMENT SAFEGUARDS FOR JAILHOUSE INTERROGATION* THE principal objectives of criminal procedure-effective prosecution of offenders and protection of individual liberties-are frequently incompatible. This dilemma becomes critical when police secure confessions from persons in custody. Since such confessions are potent evidence,' law enforcement officers are eager to obtain them to facilitate prosecutions.2 But if the statements are extracted by coercion, their admission in evidence against the confessor denies him due process of law.3 Using the test of "involuntariness," 4 courts exclude from evidence confessions induced by coercive police techniques. 5 *Carignan v. United States, 185 F.2d 954 (9th Cir. 1950), cert. granted 341 U.S. 934 (1951). 1. See 3 WiGaMRE, EVIDENCE § 866 (3d ed. 1940). 2. In cases where there are no eye-witnesses to the crime and where the circum- stantial evidence is inconclusive, it may be impossible to obtain a conviction without a confession. But a finding of guilty generally must be based on more than a confession; there must be some independent corroborative evidence of the confesser's guilt. See 4 WiuoMR, EVIDENCE §§ 2070, 2071 (3d ed. 1940). 3. Brown v. Mississippi, 297 U. S. 278 (1936). This was the first of a series of cases in which the Supreme Court reversed convictions in state courts on the ground that admission of a coerced confession violated the due process clause of the 14th Amendment. See cases cited in note S infra. In barring forced confessions, federal courts generally do not cite the due process clause of the 5th Amendment, but merely base their exclu- sions on long-standing rules of evidence. See, e.g., Wilson v. United States, 162 U. S. 613, 621-3 (1896). The reasons given for such exclusion vary. Some explanations for rejection of coerced confessions are: (1) untrustworthiness and possible falsity, Hopt v. Utah, 110 U.S. 574, 585 (1884), 3 WiGmom, EVIDENCE § 822 (3d ed. 1940); (2) "fundamental unfairness" to the accused, "whether true or false," Lisenba v. California, 314 U.S. 219, 236 (1941) ; (3) a violation of the constitutional prohibition against compulsory self- incrimination, Brain v. United States, 168 U.S. 532, 542 (1897), but see 3 WIGMORE, EVIDENCE § 823 (3d ed. 1940) ; (4) representative of "inquisitorial system [of justice] without its safeguards," Watts v. Indiana, 338 U. S. 49, 55 (1949). 4. This test has been described by the United States Supreme Court as follows: "The voluntary or involuntary character of a confession is determined by a conclusion as to whether the accused, at the time he confesses, is in possession of ,mental freedom' to confess to or deny a suspected participation in a crime ... "When conceded facts exist which are irreconcilable with such mental freedom, regardless of the contrary conclusions of the triers of fact, whether judge or jury, this Court cannot avoid responsibility for such injustice by leaving the burden of adjudication solely in other hands." Lyons v. Oklahoma, 322 U. S. 596, 602 (1944). For a description of how this test is made at the trial court level, see Anderson v. United States, 318 U.S. 350, 351 n.1 (1943). For discussion of variant uses of the term "voluntary," see 3 WIGMORE, EVIDENCE §§ 843-46 (3d ed. 1940). 5. Such techniques include physical beating, Brown v. Mississippi, 297 U.S. 278 (1936), protracted interrogation without opportunity for rest, Ashcraft v. Tennessee, 322 U.S. 143 (1944), incommunicado detention of ignorant prisoners or members of minority 1951] NOTES 1229 In recent years, federal courts have employed an additional test of admis- sibility-the legality of detention at the time of confession. In a series of de- cisions climaxed by Upshaw v. United States6 the Supreme Court ruled that confessions obtained during a period of unnecessary delay in arraignment were inadmissible.7 The Upshaw decision was based on Rule 5 of the Federal Rules racial groups, Haley v. Ohio, 332 U.S. 596 (1948), Chambers v. Florida, 309 U.S. 227 (1940), threats or inducements leading to confession, Brain v. United States, 16S U.S. 532 (1897). More comprehensive and detailed catalogues of these methods appear at 4 NAT'L CommIssIoN ON LAW OBSERVANCE & ENFORCEMENT, LAWLESSNESS IN LAW ENFORCEMENT 164-9 (1931), and HoPKINs, OuR LAWLESS POLICE 189-277 (1931). 6. 335 U.S. 410 (1948). 7. The Upshaw case, supra note 6, cleared up great confusion among courts and commentators which had been created by McNabb v. United States, 318 U.S. 332 (1943), and United States v. Mitchell, 322 U.S. 65 (1944). In the McNabb case, defendants were arrested after the killing of an officer of the Alcohol Tax Unit and were then questioned by federal agents for long periods before they confessed. This interrogation took place in apparent violation of statutes requiring that arrested persons be brought promptly before a United States commissioner or other judicial officer to determine whether or not detention was justified. 20 STAT. 341 (1879), 18 U.S.C. § 593 (1940); 28 STAT. 416 (1894), as amended, 18 U.S.C. § 595 (1940) ; and see 48 STAT. 1008 (1934), 5 U.S.C. § 300a (1940). But see note 14 infra. In reversing the conviction, the Court emphasized the assumed violation of the prompt arraignment requirement, which "aims to avoid all the evil implications of secret interrogation of persons accused of crime." McNabb v. United States, 318 U.S. 332, 344 (1944). However, references to coercive questioning methods in McNabb, id. at 344-5, and in the companion case of Anderson v. United States, 318 U.S. 350, 356 (1943), left unclear whether or not illegal detention was the sole basis for the exclusion. Compare, e.g., United States v. Hoffman, 137 F.2d 416, 421 (2d Cir. 1943) ; United States v. Haupt, 136 F.2d 661 (7th Cir. 1943) (illegal detention per se makes confession inadmissible) with United States v. Klee, 50 F. Supp. 679 (E. D. Wash. 1943) (illegal detention only extra factor in standard "voluntariness" test). And dicta in the later Supreme Court decision of United States v. Mitchell, supra, suggested that the "coercion" test alone prevailed and that delayed arraignment was only an element of coercion. Id. at 67. See also Hasson v. United States, 158 F.2d 649 (D. C. Cir. 1946); Ruhl v. United States, 148 F.2d 173 (10th Cir. 1945); Moscowitz, Trends in FederalLaw and Procedure, 5 F.R.D. 361, 370 (1946). Note, 47 COL. L. REv. 1214 (1947). In the Upshaw decision, supra, defendant confessed to grand larceny during a post- arrest period of 30 hours without arraignment. There was no other evidence of coercion. Yet the Supreme Court reversed conviction, interpreting the McNabb rule as proscribing any confession "made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the 'confession is the result of torture, physical or psychological. ."' Id. at 413. Application of the Upshaw doctrine, however, was restricted to federal courts by the Supreme Court's statements that it was not settling a constitutional question but was only exercising supervisory power over federal justice. McNabb v. United States, supra at 341; Upshaw v. United States, supra at 414 n.2; cf. United States ex rel. Weber v. Ragen, 176 F.2d 579 (7th Cir. 1949), cert. dismissed 338 U.S. 809 (1949) (use in state court of confession secured in violation of state arraignment statute not denial of due process under 14th Amendment). But failure of state officers to comply with prompt arraignment laws is apparently a factor to be considered by the Supreme Court in exam- ining the "voluntariness" of confessions in state courts. See Turner v. Pennsylvania, 1230 THE YALE LAW JOURNAL [Vol. 60 Rule 5 provides that an arrested suspect must be of Criminal Procedure. 8 brought "without unnecessary delay" before a United States commissioner. At that time the commissioner must advise the accused of his rights and pro- vide a preliminary hearing. If the commissioner finds "probable cause" to believe the accused guilty, he either jails him or releases him on bail. If prob- able cause is lacking, the commissioner must discharge the prisoner.9 Neither the Upshaw decision nor Rule 5, however, dealt with the situation where federal officers question a prisoner lawfully arraigned on one criminal charge about a second crime for which he has not been arraigned. Such ques- tioning is a frequent police practice which often yields fruitful results.10 It 338 U.S. 62, 64 (1949) ; Watts v. Indiana, 338 U.S. 49, 53 (1949). And see concurring opinions of Mr. Justice Douglas in Turner v. Pennsylvania, supra at 66, Watts v. Indiana, supra at 56, and Harris v. South Carolina, 338 U.S. 68, 71 (1949). State courts, however, have not been quick to pick up the Supreme Court's hints. Legislation requiring prompt arraignment after arrest exists in at least 45 states. See McNabb v. United States, supra at 342 n.7. But violation of these statutes has not by itself resulted in exclusion of confessions, even in those states which normally bar evidence gained illegally. For compilation of state decisions, see Note, 2 VAND. L. REv. 472 n.12 (1949). 8. FED. R. Cmau. P. 5(a) (1946). This clause represented a fusing of existing federal prompt arraignment statutes, cited note 7 supra. The combined effect of Rule 5 and Upshaw v. United States, supra note 6, is to allow pre-arraignment interrogation only during the period considered "necessary delay." This period is very brief during weekday, daytime hours. Cf. Akow- skey v. United States, 158 F.