Escobedo v. Illinois – Oral Argument – April 29, 1964 (Part 2)

Media for Escobedo v. Illinois

Audio Transcription for Oral Argument – April 29, 1964 (Part 1) in Escobedo v. Illinois

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Barry L. Kroll:

— Crooker versus California five years ago.

In the case of Crooker versus California, some of the problems were similar and some were dissimilar.

In that case, the petitioner, a college graduate who had one year of law school, was picked up by the police and at the beginning of his interrogation requested that he be allowed to call an attorney for the purpose of arranging to have that attorney represent him if possible.

The police officers of California refused this request and thereafter — after a period of questioning which lasted some 15 hours, the petitioner gave a statement which was then introduced in evidence.

This Court held that the admission of that statement into evidence did not violate that petitioner’s right to due process.

In so doing, this Court laid down the standard that it’s definitely agreed that the refusal of the right to consult with counsel is one of the factors to be considered.

But, in the Crooker case, this Court found that because of the petitioner’s experience and education, because of his obvious knowledge of his rights, he had told the people that, “Well, the lie detector test you plan to give me won’t be admissible unless I stipulate to it.”

This Court held that the presumption of voluntariness was overcome by the circumstances.

Thus, this Court, in that case, held that the totality of circumstances must be looked at and under the totality in the Crooker case, they found that there was no prejudice, that the statement did not flow from the refusal of the right to consult with counsel.

There was a vigorous dissent, to which I have averted in my brief.

It is our contention today that either of two propositions should be announced.

One, that under the standard set forth in the Crooker case, as applied to the factual complex of this case that the requirements of Crooker have been complied with and that the statement under the totality of circumstances has been shown to be the result of — as Justice Frankfurter said in Rogers versus Richmond, constitutionally impermissible methods or as stated in the Haynes case, whether this was the — not voluntary whether it was the result of the interrogation.

John M. Harlan:

Can you distinguish this case in Cicenia against Lagay?

Barry L. Kroll:

The Cicenia case is a harder case to distinguish.

The Cicenia case, it would appear that the sole aspect that was there present was that the young man had been told by his attorney to turn himself in and then he had asked to be allowed to consult with him.

And the attorney had requested also, but it appeared that there was no claim of overreaching during the period of interrogation.

There was no claim made that he would not have confessed but for the detention.

There was no showing how this refusal to allow him to consult worked to his disadvantage.

In our case, we have a young man who was denied the right to consult with his counsel.

This is common.

We have a young man who was failed to be advised of his constitutional rights.

The state’s attorney, who ultimately took the question-and-answer court reporter statement which was a practice that was questioned in the Spano case, the state’s attorney admitted that he didn’t advise the man of his right to have counsel or of his rights not to give a statement.

And although the — the petitioner was informed by his attorney, advised, “don’t say anything,” he — there is no showing in the record that he was advised that he had a right not to say anything.

And, indeed, he was lead to be — to understand by the denial of the police of his attorney’s request that he really didn’t have this right because here was the attorney, to his own sight, attempting to see him and he hears the police tell the attorney, “You can’t see the man.”

So, what we have here is a man who wasn’t told of his rights and if he would — had been told of his rights by the attorney, which is a grave question, he was shown by the police that they weren’t going to accommodate his rights, that they were going to refuse him.

We held the fact that he was — seeing by writ — by successive police officers, starting from three police who picked him up and told him, “You might as well confess.

We’ve got the goods on you.”

He was seen by an elderly police officer when he arrived at the station.

He was seen by three or four different police officers, among whom was this Officer Montejano.

He was confronted with a person who accused him of having committed the offense and even the state admits or their theory is that Danny never committed the actual offense.

Barry L. Kroll:

That Danny was a mere accessory before the fact and that he had counseled the commission of this murder.

But they told him, “Well, we’ve got a man here who says you did it.”

This is similar to the Bram situation where he was placed in a situation of almost being forced by the nature of the accusation against him to either — to make some sort of statement and almost lead to believe that, “You’re not going to see your attorney until you do cooperate,” which is —

Byron R. White:

(Inaudible)

Barry L. Kroll:

The other person or it ap — we do not know.

The other person was not called as a witness nor was his statement introduced in evidence.

The police officers all stated that this —

Byron R. White:

But they didn’t claim it.

Barry L. Kroll:

This is a matter of fact that there is evidence that he did say it and, when he was confronted with the petitioner, he told the petitioner, “You did it.”

Now, the petitioner knew that he didn’t do it.

(Inaudible)

Barry L. Kroll:

Chan — Chan was represented by an attorney who made a motion to suppress, and Chan’s confession was suppressed by the trial court.

The judge who re — suppressed Chan’s confession said, “Well, there is a distinction.”

Danny observed that the lawyer was there.

Chan didn’t know that the lawyer as there and therefore, there’s a distinction.

Now, we submit that the distinction works the other direction.

But Chan’s statement was suppressed and he was not repressed by the state and he has never been proceeded against.

(Inaudible)

Barry L. Kroll:

Escobedo’s motion to suppress was denied and that denial is what we are questioning here.

This is the —

(Inaudible)

Barry L. Kroll:

Wolfson represented both Chan and Escobedo at the police station.

This was by virtue of the fact that he had represented them as their personal injury attorney.

However, at the trial, Chan was represented by a permanent Chicago criminal defense attorney and Escobedo was represented by the Public Defender’s Office and has been represented on — on appeal as an indigent by appointment of counsel, both at the Illinois Supreme Court level and we have carried it through.

Arthur J. Goldberg:

I understand with reference to the file that the evidence requested (Inaudible) the confession, and admitted Escobedo was (Inaudible) placed in investigative room that the attorney was being (Inaudible)

Barry L. Kroll:

He — he seems to draw a two-fold distinction.

He says that Chan did not know that his attorney was there.

And Danny did know and therefore, Danny must have been reassured because he knew his attorney was at the station.

The trial judge also made the observation that, “You appear to be a pretty bright lad.

You appear to be pretty sharp.”

Barry L. Kroll:

Although it’s interesting to note that at the same time he says, “You appear to be pretty sharp”, he says, “I don’t know how old you are.”

And this was the judge who had, just a few moments earlier, asked the boy how hold he is and he says, “I’m 22, Your Honor.”

But the judge forgets this and he says, “I don’t know how old you are, but you’re pretty sharp.”

Now, unfortunately, the record does not contain any reference to Danny’s educational background and we do not have that before us at this time.

John M. Harlan:

Are you — are you arguing that, in a state case, there is an absolute federal right to counsel before there can be any police interrogation once a man is under suspicion?

Barry L. Kroll:

That is my second position, Your Honor, yes.

I believe that is the position of the dissenting justices in the Crooker case and I believe that that is the position which should be adopted in this case.

And —

John M. Harlan:

(Inaudible)

Barry L. Kroll:

Well, I — I’ve — I first believe that the totality of circumstances in this case, such as in the Spano case and the (Inaudible) case, would allow the reversal on the ground that the evident — the statement was obtained out of a totality which rejected his rights.

But I would also say that if we wish to get to the second issue that the man, even if there weren’t these other circumstances, that the man who, in this case, had an attorney.

And in this case, the attorney was at the station.

Under Chandler versus Fretag, he has an absolute right to this attorney.

He was not, as in Crooker, asking —

John M. Harlan:

Well, I think that’s Cicenia, that’s exactly what happened in Cicenia.

Barry L. Kroll:

Well, it — I was a little troubled when reading Crooker and then Cicenia because Crooker was the case that was —

John M. Harlan:

They both came down the same day.

Barry L. Kroll:

That’s right, Your Honor, but I could not — it seemed that if the holding had been in Cicenia, Crooker was an a fortiori holding.

But the — there was no attempt made in all due deference, to say how the more aggravating factors in the Cicenia case fell under the Crooker rule.

The Crooker rule said, “We don’t find any prejudice because of this man’s background.”

The Cicenia case merely said, “No violation Crooker.”

But, the Cicenia case had absent these factors which were the persuasive ones in Crooker.

I —

Arthur J. Goldberg:

Do you know whether Cicenia wasn’t even warned or given notice of his rights?

Barry L. Kroll:

There is no — no record of that in the Cicenia case.

That came up on a habeas corpus matter and there appears to be no evidence one way or the other.

In this case there is an affirmative statement by the state’s attorney that he didn’t warn him and there is no evidence whatsoever that any of the police officers ever warned him.

This is similar to the Gallegos case where it was held that, with that accused, the mere fact that no one told him of his rights was sufficient to invalidate his confession.

And that appeared, as Mr. Justice Clark pointed out in the dissent, to be the only factor that just no one told him of his rights and, yet, that was —

Potter Stewart:

He was a what, a 13 or 14-year-old boy?

Barry L. Kroll:

He was a 14-year-old boy who was taken to the — to the —

Juvenile place of detention.

Barry L. Kroll:

Juvenile place of detention, and that was the — there was no coercive circumstances as there are here.

Here, a man is told that, “You can’t see your attorney who wants to see you.

Your attorney who had told you what to do when you get to the station.”

He said, “If the police picked you up, be very polite and tell them my attorney told me not to speak to you until I get a chance to consult with him”, and he did this.

And, what did the police do?

In his presence, they kicked him — his attorney out.

In his presence, they told the attorney, “You can’t see him until we’re finished.”

In his presence they said, “You can see him when he’s — when we’re finished with him.”

And we’ll be — and no time limit was set.

This is a — a case where this accused was allowed to be in a police station unfriended by anybody and the only evidence connecting him with the crime is this statement.

The police were not attempting to solve a crime.

The police had information that he had — he was the man who did it, although the information proved false, they thought they knew who it was.

So, they picked up the man who — against whom the finger had been pointed and what do they try to do?

They try and get the only piece of evidence that leads to his conviction.

They don’t try to get proof.

They manufacture a piece of evidence.

Now, I don’t mean they go out and dream something up.

But prior to bringing the man in, they had no evidence against him, at least there was none that they introduced.

After this interrogation, they had a piece of evidence which the state court termed the highest investees, a voluntary confession.

Now, he convicted himself in that police station under an accusatorical — accusatorial system.

He convicted himself as a result of the interrogation that went on there.

He convicted himself, and what did the attorney do thereafter?

What could he do?

The focus of the trial has now shifted from, instead of being one to determine his guilt or innocence, the whole focus of the trial was now shifted to determine whether this piece of evidence which was created in the police station was now admissible or not.

In — in the case — we feel that, in order to have the effect of assistance of counsel, you’ve got to have the assistance at the time you need it.

Now, once this boy gave his confession, a day-and-a half later, he was arraigned.

Once the boy gave his confession, there was absolutely nothing this attorney could do.

They tried their best but the police officers just denied that anything untoward happened and the State Supreme Court felt that they could not overturn this finding and, therefore, they’re bound by it.

Byron R. White:

On the record, would you think that he made a plea?

Barry L. Kroll:

It’s the state Exhibit 1, Your Honor, page 75 in the print.

It — it’s partially abstracted.

The entire statement, as it appears in the record, is question-and-answer.

Byron R. White:

And do you (Inaudible)

Barry L. Kroll:

Well, not here.

I — we still —

Byron R. White:

(Inaudible)

Barry L. Kroll:

That’s what he testified at the trial, Your Honor.

He said — he stated that whatever I said in there is not true.

I said what the policeman told me to say.

And, if we wish to get into that, he testified as to the reasons that he had promises made to him and various other things which of course the police denied.

Byron R. White:

Isn’t that a part of the (Inaudible)

Barry L. Kroll:

I — I don’t see the point of your question, Your Honor.

Byron R. White:

Are you saying the totality of a certain standard (Inaudible) is not a voluntary statement?

Barry L. Kroll:

That’s right, Your Honor.

Byron R. White:

Well, isn’t the — aren’t these facts that the officer told him to say something and gave him a promise part of your argument?

Barry L. Kroll:

Well, we — we cite this as being controverted facts which, if believed, are clearly coercive under the Lynumn case.

But the state has argued and — with some apparent merit that this Court is bound by the factual determination below.

Now, if under the language of the Haynes case this Court can weigh the factors.

I think that you can clearly come to the conclusion that these premises were made.

But, this is another feature of the reason why we have to have an attorney there.

Byron R. White:

Well, does this say — who — who finally ruled on the admissibility of his confession?

Barry L. Kroll:

Judge Slater, the trial judge.

Byron R. White:

Was the admission — was the vol — was the voluntary issue ever submitted to a jury?

Barry L. Kroll:

No, Your Honor, the jury was told that this confession has to be considered as competent evidence and you cannot disregard it.

But they were told that the evidence adduced as to the — evidence adduced as to the circumstances surrounding it, you can weigh as to its trustworthiness, but —

Isn’t that the whole (Inaudible)

Barry L. Kroll:

This issue was not submitted to the jury, Your Honor.

Illinois does not have the Stein rule as the New York case does.

Barry L. Kroll:

In Illinois, the admissibility of the confession is a matter for the Court and —

Potter Stewart:

Exclusively for the judge, isn’t it?

Barry L. Kroll:

That’s right, Your Honor.

Potter Stewart:

That would be your Footnote 2 says on page 5.

Barry L. Kroll:

That’s right, Your Honor.

John M. Harlan:

You don’t know the so-called Massachusetts rule up there, do you?

Barry L. Kroll:

No, Your Honor.

In Illinois, this is just a question of admissibility and the jury was told that you have to consider this as competent evidence.

Byron R. White:

Now, what then (Inaudible) involved here?

Barry L. Kroll:

The issue was not raised to the trial — to the jury.

The jury —

(Inaudible)– he gave it up — he gave it up, the voluntary confession, on the (Inaudible)

Barry L. Kroll:

He gave it to them as a statement which you are obliged to consider that you cannot disregard the statement.

William J. Brennan, Jr.:

Well, is that to say that — then he — then he charged him at all, was — that they could be the judge of his credibility but not in a common case?

Barry L. Kroll:

I would say that that would be a fairly good statement of the rule in Illinois.

Your Honors, I have —

John M. Harlan:

Could I ask you a question?

Barry L. Kroll:

Certainly.

John M. Harlan:

Did I understand you to say that the police interrogation was in question-and-answer form?

Barry L. Kroll:

The — the ultimate written statement was in question-and-answer form.

The state’s attorney had been called and the state’s attorney, with a state’s attorney court report, appeared at the police station and he took statements from Chan, DiGerlando, and Escobedo, all three of the boys involved.

John M. Harlan:

And those were the statements you were talking about here?

Barry L. Kroll:

Well, the statement that was introduced was the question-and-answer statement which was unsigned and the defendant refused to sign it.

It’s interesting.

On Monday morning, when he was presented with the transcript, he refused to sign it stating that, “You didn’t come through with your promises.”

But — he didn’t sign it so it was ad — admitted as the court re — as embodying the court reporter’s testimony that this is a transcription of what occurred Saturday night at the police station.

John M. Harlan:

Now, is that — is that printed in this record?

Barry L. Kroll:

Yes, Your Honor.

It’s — its abstracted and printed in part and the full —

John M. Harlan:

But where is the full statement?

John M. Harlan:

Is that in our Court?

Barry L. Kroll:

The full statement is in the record which was —

John M. Harlan:

Typewritten record?

Barry L. Kroll:

Yes, Your Honor.

John M. Harlan:

And that’s here in the Court?

Barry L. Kroll:

Yes.

Byron R. White:

Well, isn’t this the full statement at page 75 or is that just —

Barry L. Kroll:

Well the —

Byron R. White:

— the abstract.

Barry L. Kroll:

It’s abstracted in part and question-and-answer in part.

Byron R. White:

I see.

Barry L. Kroll:

But the full statement does appear in the complete record.

We didn’t think the substance of the statement would come up, so —

Byron R. White:

Did the state’s attorney who took the statement know that the lawyer had been refused admission or was being refused to — to see the — to see Escobedo?

Barry L. Kroll:

He testified he did not.

Byron R. White:

Yes.

Barry L. Kroll:

The attorney — the — Escobedo’s attorney testified that someone had put in a call to a state’s attorney’s office and they told him — they gave him the wonderful advise of, “get a writ of habeas corpus.”

Of course, this was Saturday night, 11 o’clock at night, but they said, “get a writ of habeas corpus.”

He was able to do it a week earlier on a Thursday evening but, on a Saturday evening, he said that the state’s attorney —

William J. Brennan, Jr.:

No judge was around.

Barry L. Kroll:

Pardon?

William J. Brennan, Jr.:

No judge was around.

Barry L. Kroll:

Well, apparently, the state felt there were no judges because they didn’t arraign the man.

They kept him in here and didn’t take him over to (Inaudible) court until Monday and I presume, the same judge who had a writ — issued the habeas corpus would also have the arraignment.

Arthur J. Goldberg:

(Inaudible)

The state’s attorney himself (Inaudible)

Barry L. Kroll:

Right.

Arthur J. Goldberg:

— to the statements that you’ve been drawing.

Barry L. Kroll:

Right.

Arthur J. Goldberg:

(Inaudible)

Barry L. Kroll:

No, that — that’s — that’s correct, Your Honor.

This case is — is unique, in that, many of the police officers all testified as to what they didn’t do when each of them con — conflict to each others as to what actually happened but they all deny the allegations that Danny made.

This is another reason why we feel that the attorney should be there.

Danny makes specific allegations and each of the managers denied that they did it.

These things just don’t lie true, but we’re precluded somewhat from that issue with this.

Arthur J. Goldberg:

Well, going back to the Court of Appeals’ (Inaudible) — there, the court held (Inaudible) in Haynes, that while the (Inaudible) he quickly considered in light of the other testimony (Voice Overlap).

Barry L. Kroll:

That’s right.

Arthur J. Goldberg:

The Supreme Court in its opinion, contrary to the second opinion, reviewing the evidence, said that the whole evidence supported defendant’s testimony (Inaudible) that he would then be given the right to see his lawyer and would be allowed to go home.

Barry L. Kroll:

That’s right, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Barry L. Kroll:

That’s right, Your Honor.

Unfortunately —

Arthur J. Goldberg:

Well, (Inaudible) I understand that the next opinion said otherwise from your opinion on what your client said.

Now, does your position in this Court need not go all the way to the doctrine of the (Inaudible)

Barry L. Kroll:

Cicenia, Crooker, Groban, and —

Arthur J. Goldberg:

(Inaudible) — the first position (Inaudible) in effect is (Inaudible) Supreme Court said the first time, is that correct?

Barry L. Kroll:

That’s right, Your Honor.

We believe that if you test this case for prejudice, you will find prejudice.

The state’s brief concludes with the concession.

To be sure, they say Danny Escobedo would not have confessed had he been allowed to consult with his attorney at the police station.

The state candidly admits this in their brief.

Danny Escobedo would not have confessed had he been allowed to consult with his attorney.

Potter Stewart:

Well, they also said he wouldn’t have committed the murder either if he consulted with his attorney beforehand.

Barry L. Kroll:

Well, that —

Tom C. Clark:

(Inaudible)

Barry L. Kroll:

That’s further the right, Mr. Justice Clark.

I might point out that in their reply, the state has taken each of these circumstances and attempted to isolate it and say, “Well, this, by itself, wasn’t so bad or this really didn’t happen or such and such.”

But we don’t look at each circumstance in isolation.

We look at the totality of circumstance and what we have here is a lad who goes into the police interrogation and tells him, “I’m not going to say anything until my — I see my attorney.”

And some two or three hours or an hour-and-a half or whatever it is later, lo and behold there’s a statement.

Barry L. Kroll:

Something happened there.

It wasn’t his first inclination to confess, even questioned a week-previous for 13 hours and made no incriminating statements but he comes back on Saturday night.

He’s arrested, hauled into the police station and, thereafter, a statement is obtained.

We feel that whatever happened there, the statement is not voluntary.

And whether we say it’s a result of counsel or result of incommunicado, or a result of many police officers, or a result of the confrontation, or a result of the alleged promises, or a result of the fact that this lad was a 22-year-old person of Spanish extraction whose mentally was not so great, whose education doesn’t appear, or a combination of these factors.

Whatever we have, it’s clear that the statement was a result of what happened at the police station and therefore, not voluntary.

I’ve allowed the American Civil Liberties Union a portion of my time, Your Honors, to present their amicus argument.

Earl Warren:

Mr. Weisberg.

Bernard Weisberg:

Mr. Chief Justice and may it please the Court.

I would like to speak briefly in describing our position in this case and then touch on three general aspects of it.

Our position is that the constitutional right to counsel should be recognized in these circumstances.

When a suspect in police custody makes a specific request for an opportunity to talk to a lawyer, when he asks to talk to retained counsel where the police deny the request and proceed to interrogate him, as they did here, in a manner which was clearly seeking a confession, where the interrogation is secret, that is, no one is present who is either neutral or loyal to the interests of the prisoner, and where no satisfactory record is made of the interrogation.

We say that under this combination of circumstances, all of which were found in this record, that there should be a constitutionally protected right to counsel under the Due Process Clause of the Fourteenth Amendment.

John M. Harlan:

Well, now, just a minute.

If you take that position limiting it to the facts of this case that you’re arguing, —

Bernard Weisberg:

Yes, sir.

John M. Harlan:

— your constitutional proposition, why wasn’t it found that, in the case of an ignorant defendant, it’s the duty of the police to advise him before interrogating or investigating at all — I mean, confronting him at all, to advise him that he should have a counsel before he says anything to them?

Bernard Weisberg:

Yes.

I would —

John M. Harlan:

Doesn’t your position go that far?

Bernard Weisberg:

Ultimately, it does.

I would, however, again —

John M. Harlan:

Well, I think you ought to be — embrace the full —

Bernard Weisberg:

I — I wish to be frank, (Voice Overlap) —

John M. Harlan:

— standing of your our position —

Bernard Weisberg:

— the Court on this question —

John M. Harlan:

— because that was the thing that the court expressed, concerned about in a state case in Cicenia.

Bernard Weisberg:

I appreciate that.

John M. Harlan:

And if you recall Cicenia, the majority opinion recognized that in a federal case, what happened there, the Court would not tolerate that kind of conduct but in a state case, it raised questions as to the extent and reach of any such rule as you’re now announcing.

Bernard Weisberg:

Yes.

John M. Harlan:

I think you ought to address yourself frankly to that proposition.

Bernard Weisberg:

I — I wish to do so.

I would not stop by remarking on the fact that the question of what, if any, waiver rule would apply in these cases is not raised in this case because here we have a specific request for counsel.

I will go beyond saying that the shaping of any such waiver rule is for future cases which raise that issue.

I’m not prepared to delineate all of the contours which such a waiver rule may take if and when it is developed by this Court.

I would, however, add a few observations.

First, I think that Mr. Justice Douglas’ dissenting opinion in Ashdown against Utah was clearly correct in indicating that a person in police custody should always have the right, certainly, to waive any right to counsel that he may have under the constitution and elect to talk to the police.

It certainly seems clear to me that there would always be some waiver rule that there would not be an absolute requirement that counsel would have to be provided.

William O. Douglas:

I thought you were drawing a different line Mr. — somewhat like the line, as I understand it.

The British practice that the police had stopped a person on the street engaged in conversation, who called at the door and engaged in conversation, that this right to advise them of their constitutional rights or their right to a lawyer arises only at the time — point of time when the police decide to hold the man, to arrest the him.

Bernard Weisberg:

I — I don’t think we have to go that far in this case, Mr. Justice Douglas, because I think, in this case and this isn’t — these are circumstances of course not peculiar to this case.

We have not only the arrest of the suspect.

We have the fact that the suspect is obviously in jeopardy because when the police arrested him, they had an accusation that he was the assassin.

We’ve had coupled with that the circumstances that, after the police denied his specific request to retain counsel, they proceeded to interrogate him secretly and without making a record of the interrogation proceeding.

Now, the English practice to which Your Honor refers has recently been amended.

The March issue of the Criminal Law Review contains a significantly revised statement of the well-known judges’ rules on interrogation.

It’s not my purpose here to dwell on the particular changes which are made under the new circular of the Home Secretary.

There are however, significant changes and I think the Court will be interested in them.

To return to Mr. Justice Harlan’s question, which I have not completed answering.

I must say in candor that I do not find the prospect you described, a horrible prospect.

It seems to me a just a and fair rule ultimately to say that the constitutional requirement of fairness is itself a requirement that an ignorant person in the custody of the police, who is in jeopardy in a common sense meaning of that term, should be advised of his rights if he doesn’t know them.

And therefore, I — I agree with you, Mr. Justice Harlan, that, ultimately, if this Court takes the first step down this road of developing a rule of constitutional fairness protecting the right to counsel of a suspect in these circumstances there are certainly further steps that are going to have to be taken someday.

There may also be turns on the road and there may be twists back.

John M. Harlan:

Well, when you make constitutional doctrine, you try to look a little — ahead a little bit and see where you’re going.

Bernard Weisberg:

Yes, sir.

John M. Harlan:

And, therefore, I think that you must face up to that and recognize that that’s the core of a very difficult problem.

These cases are easy to decide if you just decide them as a case and don’t care where you’re going, where you’re looking at, what the —

Bernard Weisberg:

I —

John M. Harlan:

— consequences are.

Bernard Weisberg:

I agree.

Bernard Weisberg:

At the same time, if I may be permitted, the Court has the opportunity to develop its rules one step at a time.

And where the rule is as potentially important as this one is, that certainly, seems to me, wise procedure, this is one of the reasons why we suggest here that the rule may be limited.

Now, Mr. Justice Harlan asked, can this case be distinguished from Cicenia against Lagay?

I agree that, factually, it cannot be.

However, I believe that, in terms of the legal arguments and the issues and the focus presented that it can be because it appears from the reported opinion in Cicenia that the case was argued as though the only choice were between an absolute right to counsel on request of a suspect in police custody and no such right at all.

Arthur J. Goldberg:

It also appears in agenda that actually the — he wasn’t — the issue there was decided, and we agree, decided on the facts where then that boy pleads guilty.

Bernard Weisberg:

That’s right.

Arthur J. Goldberg:

And a confession itself was never been conceived to be filed.

Bernard Weisberg:

That’s right.

John M. Harlan:

That — that was —

And that was the issue that was presented.

That’s the reason we didn’t —

Bernard Weisberg:

Yes.

John M. Harlan:

— have to deal with anything else.

Arthur J. Goldberg:

Why do they have to (Inaudible)

Bernard Weisberg:

I agree that it need not be and upon recollection, I would retreat from that aspect of our brief.

John M. Harlan:

You what?

Bernard Weisberg:

I said, I agree that it need not be if the rule is limited as I have suggested.

If the denial of the specific request is coupled with police interrogation, clearly intended to seek a confession, plus secrecy, plus an absence of a satisfactory record.

It seems to me that there —

John M. Harlan:

But that was Cicenia.

You have to — you have — that was in fact Cicenia.

Bernard Weisberg:

My only ability to distinguish that case is in terms of the manner in which the legal issues were presented to the Court.

I do not presume to distinguish it factually.

John M. Harlan:

No, but the holding in Cicenia was that there was no absolute right to counsel at a pre-arraignment stage.

And as I understand your argument that you first embarked in even limiting it as you suggested, you would let him, would require a ruling of Cicenia.

I’m not saying that that isn’t a perfectly permissible argument, but I —

Bernard Weisberg:

I think what we’re discussing at this point is the difference between overruling Cicenia on its facts and holding as against remarking what the Court has sometimes observed and that is that an earlier case may not have considered the issues focused in the same manner in which they’re focused and presented in a subsequent case.

At that —

John M. Harlan:

(Inaudible)

Arthur J. Goldberg:

(Inaudible)

Bernard Weisberg:

In — at least in terms of the legal evaluation of the position.

Yes, Crooker, of course, is easier to distinguish on the facts.

Arthur J. Goldberg:

He could also distinguish generally on the ground that some of the Circuit Court’s facts that are present here rests upon this and not to testify to uncover his agenda.

Bernard Weisberg:

That would be with respect to —

Arthur J. Goldberg:

The opposing counsel hypothesized —

Bernard Weisberg:

That’s with respect to a holding that on the totality of circumstances the confession was obtained by constitutionally impermissible means.

Arthur J. Goldberg:

Cicenia — Cicenia itself, that language referring to Crooker to say that — that it could be — there’s certainly one Circuit Court considered in the totality.

Bernard Weisberg:

Yes.

John M. Harlan:

Now, that may well be, may well be.

But that was not the proposition to which you started to address yourself.

Bernard Weisberg:

I would like to return, if I may, and proceed to develop that proposition briefly and it may be that it will become clear in the course of that discussion.

As I mentioned a moment ago, when the police obtained DiGerlando’s accusation that Escobedo was the assassin, arrested Escobedo and confronted him with the accusation, and it’s worth noting here that on this record, Escobedo testified that in the detective car, when he was being taken into the police station on the night of the 30th, he was told two things one, that the police had a person who had accused him of being the assassin and, secondly, “You might as well admit the crime.”

In his words, “We had you sowed up pretty tight.”

The first aspect of that statement testified to by Escobedo is admitted to by the police officer, Sullivan, that he told Escobedo in the car in the way in that the police had someone who would finger him as the assassin.

The second aspect is nowhere contradicted and therefore, it seems to me it’s an undisputed aspect of the record.

This, it seems to me, is significant because of the fact that the police, not only confronted him with the accusation but made it clear to him that in their subsequent interrogation what they were looking for was a confession.

It seems to me, there could be no reading of this record that the police were engaged in a casual or a neutral inquiry endeavoring to under — discover the circumstances of the crime.

Now, it may be asked, well, the police had DiGerlando’s accusation, wasn’t it a reasonable thing for them to do to confront Escobedo and find out whether he admitted it, if he didn’t, who was telling the truth?

This, it seems to me, is a plausible argument but it rests upon a fallacious principle and that is the police should be the triers of the issue.

Because it seems to me that if that is accepted a proper delimitation of proper policed work in these circumstances where the police clearly have sufficient evidence to arrest and charge formally with the crime.

That then, what we have said is that the courts are unnecessary in a very meaningful sense.

Now, when Escobedo was arrested under these circumstances by the police he was in every sense of the word in jeopardy.

He needed a lawyer.

And this was a critical stage in the proceeding which culminated in his conviction.

(Inaudible)

Bernard Weisberg:

The police testimony was that they had an oral statement obtained earlier on the evening of the 30th from DiGerlando accusing Escobedo of having been the assassin.

There’s no suggestion in the record.

I don’t believe that that statement was ever reduced to writing.

John M. Harlan:

Would that mean prosecuting accusations (Inaudible)

Bernard Weisberg:

No, no, no.

No formal judicial charge of any sort.

Escobedo needed a lawyer in these circumstances, not only to protect him against abuses, as is commonly said, not only to tell him of his right to silence.

He needed a lawyer to give him the legal advice, without which, as a layman, he could not intelligently evaluate a situation or decide on a course of action.

There is this to be said for the fact that Escobedo made a specific request for counsel.

It showed that at least he thought he needed a lawyer and it probably shows that he thought he was entitled to talk to a lawyer when he asked to do so.

John M. Harlan:

And (Inaudible) had they took before the second interrogation, he had a lawyer.

Bernard Weisberg:

Between — I — I —

John M. Harlan:

Between the two interrogations.

Bernard Weisberg:

Let me come to that immediately.

John M. Harlan:

Well, let me finish my question on that.

Bernard Weisberg:

Surely.

John M. Harlan:

And you tell me if I’m wrong, and that in the interval and before his lawyer tried to see him at the jail and the second occasion, he had been told by his lawyer not to say anything to the police.

Bernard Weisberg:

That’s correct.

John M. Harlan:

Is that correct?

Bernard Weisberg:

That’s correct.

Let me come immediately to the question to which your question refers.

Was Escobedo prejudiced by the denial of his request to talk to his lawyer in the police station on the night of the 30th?

Or, putting it in a slightly different way, did he, as the state contends here, have the effective assistance of counsel?

Now, the state bases that argument upon two circumstances.

One, the one to which Your Honor refers, and that is the fact that admittedly during the interval between his first arrest on the 20th and his second arrest on the 30th, he had spoken to his lawyer.

There’s nothing in the record about the content of that consultation except for Escobedo’s statement on page 20 of the record.

That a few days before he was arrested the second time, he talked to his lawyer and his lawyer told him, if he was arrested again, not to answer — not to talk to the police without first, having the advice of his lawyer.

The second fact on which the state relies in arguing that Escobedo had the effective assistance of counsel is the fact that when Escobedo saw his lawyer being barred through the open doorway, Wolfson, the lawyer, made a gesture to Escobedo which Escobedo testified, oddly enough, on redirect examination by his own counsel.

He took to mean he should not talk to the police.

Those are the two facts that the state relies on to argue that he had the effective assistance of counsel.

Now, as to the first, I think the testimony of Wolfson, the state says Wolfson talked to them every day, I think I will not take the time to read the testimony but I think, if the Court will look at Mr. Wolfson’s testimony, and I believe it appears on page 10 of the record, it’s in the hearing on the motion to suppress, it will be apparent that when Wolfson said he talked to his clients every day that he was making a lawyer’s offhand answer to a question which by implication raised perhaps a question about whether he discharged his responsibilities.

Escobedo’s testimony on page 20 is much more specific, that they talked a few days before and Wolfson told him not talk without a lawyer’s advice.

That only puts that into perspective.

I think the daily consultation theme in the state’s brief has to be cut down to size.

Bernard Weisberg:

But coming to the more important second point, when Wolfson made a sign or shook his head to Escobedo through the open doorway which Escobedo took to mean “don’t talk, don’t say anything to the police.”

Was that the effective assistance of counsel?

It seems to me that it would be a joke to say that that is the effective assistance of counsel because if that is, then the constitutional principle and the constitutional right can be satisfied by a gesture, by a shake of the head or by a finger to the lips, and it seems to me that the Sixth and the Fourteenth Amendments mean more than that in these circumstances.

We suggest that this was a critical stage for Escobedo’s proceeding in every sense of the word.

That within the logic of this Court’s decisions in Hamilton against Alabama and White against Maryland, he was entitled to a constitutional right to counsel.

The state suggests that for purposes of the Powell against Alabama —

John M. Harlan:

Well even in those cases, we have to draw on that (Voice Overlap) —

Bernard Weisberg:

Quite so.

I say, only with —

John M. Harlan:

It says that, you’re entitled to counsel automatically in case of an arraignment or preliminary proceeding, depending upon whether the character of that arraignment, the proceeding as such, that it affects your right?

Bernard Weisberg:

I say, only within the logic of those cases.

I make no claim that, factually they go that far.

I say that the principle of those cases should extend to a case such as this where the police interrogation under all of the circumstances is clearly in a common sense meaning of the term “a critical stage” in the proceeding against the prospective defendant.

Now, as to the question of whether or not Escobedo was prejudiced, I’ve spoken of the one aspect of that and that is whether or not he had, as the state claims, the effective assistance of counsel.

There’s one aspect — one other aspect which should be referred to.

He was of course, perhaps prejudiced because he confessed and maybe he wouldn’t if he talked to his lawyer first.

He was prejudiced, I think, in a more meaningful way because of the fact that the secrecy and the absence of a record.

And these seemed to be the most remarkably unfair things about this entire type of proceeding.

The secrecy and the absence of the record are conditions created by the affirmative act of the state which is an entire control of this proceeding and they have the effect of depriving him of a fair trial on the question of the admissibility of his confession because it means that the only witnesses are the defendant and the police.

The state knows that there are going to be disputes about the conduct of such an interrogation and yet, it sets the stage in such a way as to make objective evidence of what actually happened unavailable.

It seems to me that this type of unfairness rises to a constitutional level of unfairness.

And that’s why I stress, as one of the circumstances under which the constitutional right should be recognized, the conducting of a secret and unrecorded interrogation by the police after it is apparent that they are looking for a confession and that they have sufficient evidence to justify an arrest and a charge.

Now, the state says that a critical stage, within the logic, not the factual holding on the facts of Hamilton and White, that a critical stage in a criminal proceeding can come only after the judicial process has been invoked, that is after there is some kind of formal charge, if only, by the police.

We say this is altogether unrealistic because of the fact — if only because of the fact that the timing of such action is entirely under the control of the police and the prosecutor.

And under those circumstances it seems to me that whether we have an indictment as in Spano should not make a critical difference.

It seems to me that the way to evaluate the — that the critical dividing line is in terms of whether or not the defendant is in jeopardy in a practical and common sense way and here it appears that he was once the police arrested him and undertook the investigation.

I would like to stress that there are a number of ways in which this case does not necessarily raise the broad issues to which Mr. Justice Harlan’s first question referred and which the state’s brief stresses.

We have here a specific request for retaining counsel.

We have the conduct of a secret and unrecorded interrogation.

It is not necessary therefore in this case to explore the ultimate reaches of what constitutional rule of waiver may ultimately be developed for cases in which there is either no request for counsel or in which the defendant is indigent.

Bernard Weisberg:

I would like to speak very briefly of the matter of the practical consequences for law enforcement to with which the state’s brief stresses.

The state says that a ruling here that Escobedo had a constitutional right to talk to his lawyer would mean an end to police questioning, an end to confessions, and would cripple law enforcement.

These arguments of course are traditional.

One recent example is referred to in the Court’s opinion in Mapp against Ohio.

Another example, of course, is some of the reaction to the Court’s decision in Mallory against the United States.

In 1957, Assistant Attorney General Olney told the Committee of the House that “the police could not observe Mallory or else they would have to close up shop.”

Those were his words.

The local United States Attorney, Mr. Gash, told the same committee in 1957 that the Mallory decision created an emergency situation which required immediate lesi — legislative correction.

But in 1960, Mr. Gash, in a speech referred to in the article of Professor Comisar, cited in our brief, took the position that Mallory had actually contributed to an improvement in law enforcement work in the District of Columbia.

That because they had been trained to observe the Mallory rule, the District of Columbia were laying more emphasis on pre-arrest investigation where interrogation is not subject to any serious question of principle and were making better cases and relying less on confessions.

Now, it is also significant, I think, that the Justice Department apparently takes the view that affording the opportunity to talk — call a lawyer and talk to him before you’re interrogated would not cripple law enforcement because this is the position reflected in certain amendments proposed by the Justice Department to House Bill 7565 or is it 7525, now in the Senate Committee on the District of Columbia.

That bill has not yet been reported out but indications are and advised that the Senate will incorporate the amendments proposed by the Justice Department.

In conclusion, it seems to me that the predictions of a breakdown in law enforcement should be taken with a grain of salt, to put it mildly by the Court.

These are extravagant predictions.

I do not candidly suggest that it is possible on the facts available to us now to say that these predictions are correct or that the opposite predictions are correct, that a more restrictive rule would contribute to more efficient police work.

I do say that the suggestion in the state’s brief that we would have a breakdown in law enforcement is an assumption which is not based on facts and that there is no sufficient showing to justify the kind of unfairness —

John M. Harlan:

Different states might have different points of view on this problem.

Bernard Weisberg:

Yes, sir.

John M. Harlan:

And the character with whether it’s an agricultural community where I suppose, gangsters (Inaudible) in other states where they have large cities, the crime is probably different.

Bernard Weisberg:

Yes sir.

John M. Harlan:

It’s pretty hard to generalize though.

Bernard Weisberg:

I don’t undertake to generalize about the practical effects on law enforcement throughout the country.

I undertake to generalize only about what I believe the constitutional requirement of fairness indicates.

John M. Harlan:

That the constitution is — the constitutional requirement as to a judge turns the fact that we have here.

Potter Stewart:

Do you know of any state which has held that a person in this petitioner’s circumstances would be entitled to — entitled to a lawyer?

Bernard Weisberg:

New York.

New York, People against Donovan referred to at length in the petitioner’s brief.

Potter Stewart:

That’s after indictment — indictment, isn’t it?

Bernard Weisberg:

No —

Potter Stewart:

Not —

Bernard Weisberg:

Donovan now holds that even before a formal charge.

I’m cutting (Voice Overlap) —

Byron R. White:

The court urged — I gathered your position was in your brief that it’s just not the opportunity to consult with counsel prior to interrogation but requiring his actual presence all during the interrogation.

Bernard Weisberg:

I should say candidly that the case, of course, did not necessarily raise the second question because here —

Byron R. White:

But that is the position you take?

Bernard Weisberg:

I think on the facts of this case, the only question that’s raised is the denial of any opportunity to talk.

I believe, ultimately, that if lawyers were permitted to be present at police interrogations, we might find that they — there wouldn’t be these predictions that they would always say, “Don’t talk.”

But if the lawyer was there to see and hear the questions asked and the counsel answered particular questions that we might have a good deal more of the even active cooperation with the police on the part of people who were implicated.

It seems to me that the presence of the lawyer at the interrogation provides more constructive possibilities than dangers to law enforcement.

Byron R. White:

Yes, but your cont — the constitutional rule you proposed, it entirely cite from the predictions of what the consequences be, what constitutional rule do you propose?

Bernard Weisberg:

Is that at least —

Byron R. White:

Is a lawyer is required to be present during the interrogation or not?

Bernard Weisberg:

I can only propose in this case a holding that there must be a constitutional right to consult prior to any police interrogation because the case does not raise the broader question of whether the lawyer is constitutionally entitled to be present in the interrogation.

Earl Warren:

Mr. Thompson.

James R. Thompson:

Mr. Chief Justice, may it please the Court, and counsel.

This case involves the crime of murder for hire, the defendant before the Court, Daniel Escobedo, being the one who counseled the commission of murder for hire by his codefendant, Benedict DiGerlando.

He was found guilty by a jury and sentenced by that jury to a term of 20 years in Illinois State Penitentiary.

There are two issues here.

First, whether or not under all of the circumstances of the case, the confession of Escobedo to the state’s attorney, at about 11:50 pm on the night that he was arrested for the last time was voluntary or as sometimes I think put in the brief and the argument here whether under the totality of circumstances he might have been overreached or whether under the totality of circumstances, there was fundamental unfairness because of the presence or absence of a number of factors.

And the second issue specifically raised in the petition for certiorari and in all the briefs and upon which this Court granted certiorari was whether or not the absence of counsel or the refusal to allow the defendant to consult with counsel before he confessed compels by itself the exclusion of the confession and whether or not Crooker versus California and Cicenia versus Lagay should be overruled.

Now, as to the first issue, I think the discussion of the various factors which the defendant says go to the voluntariness of the confession are fairly well done in detail in the brief.

Let me go at once to some of the questions raised by Your Honors during the argument of opposing counsel.

I think the first one that ought to be dealt with is whether or not this case is distinguishable from Haynes against Washington, the latest confession case to be handed down by this Court.

I think that it is, for several reasons.

First, I think we’re only forced to even approach a Haynes versus Washington kind of situation because of the first opinion of the Supreme Court of Illinois in this case.

If there had been no first opinion in this case, I think it pretty clear that we would not need to discuss Haynes and its applicability at all.

But there was a first opinion and that first opinion did find or conclude, one judge dissenting an opinion to follow, that promises were made to Escobedo that if he confessed he would be used only as a witness and allowed to go home.

Now if that was true, if the evidence in the record supports that position and that finding, then there is no question but that that confession could not be used under the rule of Haynes and under the rule of Lynumn.

There’s no dispute about that at all.

The central question now, it seems to me, is whether or not there was any evidentiary support for the finding of the first opinion or whether we must confine ourselves solely to the conclusions of the second opinion which is after all the official opinion now of the Illinois Supreme Court in which we review here.

James R. Thompson:

It seems to me that the first opinion found evidences of promises or could have found evidences of promises only by believing the testimony of the defendant on a motion to suppress and disbelieving the only officer to whom promises were attributed, Officer Montejano.

Now, I don’t need to cite the decisions of the Illinois Supreme Court or indeed the decisions of any State Supreme Court for the proposition that on review, courts of review will not reweigh questions of credibility.

In their brief in this Court, the defendant has conceded that promises were specific or said that promises were specifically made by Montejano and has conceded that specific denials were given by Montejano.

Hugo L. Black:

You mean — you mean by that that it completely involved and has disputed the evidence on the constitutional question of this kind as to who has got the power to protect his constitutional rights that the jury had evidence to see whether it believes it was correctly exercised.

James R. Thompson:

No.

The petitioners take the view in this Court, although it wasn’t delimited very much in oral argument, as I understand their brief in their original petition for certiorari, that you can reweigh facts and find as a fact something that the Illinois Supreme Court did not find as a fact.

Hugo L. Black:

Do you deny that Court has that power?

James R. Thompson:

I think that the — the true rule of this Court’s power on certiorari and weighing evidence and confession cases is that the — this Court can look to the undisputed fact in the record and come into a different constitutional conclusion than the court below did on the same facts.

Hugo L. Black:

But it cannot come to its own conclusion as to what was decided.

James R. Thompson:

Well, I — I wouldn’t say that this Court could say, contrary to the Illinois Supreme Court, that they believe petitioner and they don’t believe Officer Montejano, unless there were sufficient other evidence in the record to make it clear that Montejano was lying.

Hugo L. Black:

In other words, the Court could — are you saying that the Court could or could not in order to protect his constitutional right, determine the truth of the issue upon himself, contrary to the determination made below?

James R. Thompson:

Well, this Court has the power, in order to protect the constitutional rights of a defendant to find what it believes to be the facts.

But, if the only basis upon which this Court would find to be a fact is that they believe the testimony of one defendant, whereas, the Supreme Court of Illinois believe the testimony of the police officer and all you had was the testimony of the defendant on one side and the police officer on the other side.

And this Court was simply coming to a different conclusion than the Supreme Court of Illinois and I think that is within the purview of this Court’s past decisions which have said over and over again that in confession cases, you look only to the undisputed evidence of record.

Arthur J. Goldberg:

Let me reconcile that and state that he came (Inaudible) our conclusion is in no way foreclosed to the statement here.

In fact, at the state trial court, the jury gave each of the (Inaudible) position while settling for the constitutional adjudication, resting it on this Court (Inaudible) for the filing and this (Inaudible) as a coerced confession.

He decided an independent determination here.

It cannot escape with the (Inaudible)

James R. Thompson:

I agree with that statement.

My interpretation of that statement would be that even though the trial judge below and the Supreme Court — the intermediate State Supreme Court, had found on the facts that they examined that the confession was voluntary.

This Court, on its own examination of the facts, can come to the opposite conclusion and is not bound.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

Oh, certainly.

You can — you can take the denial, but I think, going to even more specific facts of Haynes against Washington, which I don’t remember in great detail.

But it seems to me that the police officer’s testimony in the Haynes case was much more equivocal.

In fact, tended to support the petitioner’s position that he had been promised that when he confessed he could call his wife and see the lawyer which Your Honor felt contributed very greatly to his will being overborne and the subsequent making of his statement.

Whereas here, I think, and this is I think one of the distinguishing factors of this case in Haynes against Washington, you have an allegation by the defendant that promises were made and a you have a specific denial by the officer that promises were made, and you have no other evidence in the case that I know of which would tend to throw credibility with one witness or another.

Hugo L. Black:

Well, then (Inaudible) — do your state (Inaudible) follow a rule, much different than these other two criminal cases can only require that it would be established on state by a few hundred of the (Inaudible)

James R. Thompson:

That’s correct.

Hugo L. Black:

(Inaudible)

James R. Thompson:

Well, if this —

Hugo L. Black:

If we decided on the basis of what — well, it’s proved beyond a reasonable doubt?

James R. Thompson:

If this Court were to hold that the reasonable doubt test was a part of due process and, therefore binding on the State of Illinois.

Hugo L. Black:

Isn’t it?

James R. Thompson:

I don’t think it is.

I don’t know of any opinion of this Court which has said that voluntariness must be proved beyond a reasonable doubt and I don’t —

Hugo L. Black:

I don’t care about your proof of evidence in a criminal case.

James R. Thompson:

Oh, as to guilt, surely.

Hugo L. Black:

Well, isn’t it a question of voluntariness?

Doesn’t the jury — does a jury in having credibility in evidence have a right to consider how that evidence is given whether it was given under circumstances that might impair its credibility?

James R. Thompson:

Yes, sir.

Under Illinois law, the question of the credibility of a confession is submitted to the jury along with all the other evidence and the jury must find the defendant guilty beyond a reasonable doubt.

Hugo L. Black:

Does it fall (Inaudible) to voluntariness?

James R. Thompson:

Well, it’s raised a little differently in Illinois.

Hugo L. Black:

But how you — however it’s phrased, as you — has Illinois taken away from the jury the right to have proven the satisfaction beyond a reasonable doubt, that his confession is voluntary (Inaudible)

James R. Thompson:

No, they have not.

Hugo L. Black:

The jury does have a right.

James R. Thompson:

Yes, they do.

Hugo L. Black:

And it has to be proven to the jury beyond a reasonable doubt?

James R. Thompson:

As affecting its credibility, that’s correct.

Hugo L. Black:

But — then I do not understand why the — why it said that the jury does not pass on it at all and why it can be said that it can be shunted off to a trial judge who decided on the pre (Inaudible) of the evidence.

James R. Thompson:

No.

No, the — in Illinois, the legal question of whether or not a confession is voluntary and, thus, competent evidence is only for the trial judge.

Hugo L. Black:

(Inaudible)

James R. Thompson:

Once —

Hugo L. Black:

(Inaudible)

James R. Thompson:

That’s correct.

Hugo L. Black:

You mean, it’s left to be submitted to the jury.

James R. Thompson:

To be submitted to the jury.

Hugo L. Black:

For consideration.

James R. Thompson:

That’s right.

Hugo L. Black:

Does the jury then have the right to hear the evidence and how it was produced?

James R. Thompson:

Yes, sir.

Hugo L. Black:

In order to determine whether or not it’s voluntary.

James R. Thompson:

And in order to give it — if they believe it involuntary, no credit, or if they believe it to be voluntary, credit.

Hugo L. Black:

Can the defendant offer evidence attacking this to show that it was coerced?

James R. Thompson:

Yes, sir.

Hugo L. Black:

Could it do it?

James R. Thompson:

Yes, sir.

Hugo L. Black:

And the burden then is on the judge — state to prove it beyond a reasonable doubt.

James R. Thompson:

Well —

Hugo L. Black:

Or the jury.

James R. Thompson:

The ultimate burden is to prove the defendant guilty beyond a reasonable doubt.

Hugo L. Black:

But —

James R. Thompson:

I don’t know whether —

Hugo L. Black:

(Voice Overlap) — does that not include every essential thing offered to the jury as evidence to convict the defendant?

James R. Thompson:

I don’t think that the —

Hugo L. Black:

Even if — that the rule is that there are some things that are essential to convict the defendant, production of evidence, but the jury doesn’t have a right, the jury is not bound, protected by the Reasonable Doubt Doctrine?

James R. Thompson:

As to the ultimate question of guilt, they are, but I don’t know of any — any —

Hugo L. Black:

It does not include anything but the ultimate question of guilt.

James R. Thompson:

It does not include, in my view, an evidentiary question.

That is to say, I don’t think the State is required to prove everything about a particular piece of evidence beyond a reasonable doubt because this is something that the jury is attaching weight to.

They may attach more or less weight in other situations outside of confessions.

Hugo L. Black:

Depending — depending on what the facts are.

James R. Thompson:

Correct.

Hugo L. Black:

And who’s the ultimate trier of facts?

James R. Thompson:

The jury.

Hugo L. Black:

The jury?

James R. Thompson:

Yes, sir.

John M. Harlan:

I’m a little confused but I — because this seems to me quite opposite to what your opponents held.

John M. Harlan:

Let me put this case to you.

The judge holds — defense counsel gets up and moves to suppress the confession.

The judge says, “Alright, I’ll hear evidence on it.”

At the end of the hearing, he rules that confession is voluntary.

James R. Thompson:

Yes.

John M. Harlan:

Can the jury — can the jury then decide that the confession is not voluntary?

James R. Thompson:

Only in the sense that they can find that, because it was coerced or because promises were made, it is not entitled to credit or weigh it as evidence.

They don’t make a —

John M. Harlan:

That’s what I understood your opponent to say.

James R. Thompson:

That’s correct.

John M. Harlan:

In other words, you do not have the Massachusetts rules so that —

James R. Thompson:

The jury does not reweigh the question of voluntariness.

The jury reweighs — the jury decides only the question of credibility but, in determining that question, they are given the same evidence that the judge heard —

John M. Harlan:

Correct.

James R. Thompson:

— on the question of voluntariness.

John M. Harlan:

But a defendant would not be entitled to a charge to the jury saying that despite the fact that the court has ruled this confession as voluntary, it’s within the jury’s province to decide that it was involuntary and if involuntary, it shouldn’t be considered at all.

James R. Thompson:

That — no charge has given the State of Illinois incorporating the term “voluntariness.”

John M. Harlan:

That’s what I thought.

James R. Thompson:

In effect —

William J. Brennan, Jr.:

Mr. Thompson, may I ask what the —

James R. Thompson:

Yes, Judge.

William J. Brennan, Jr.:

(Inaudible) exactly how it’s done.

I heard you say just now that the evidence that the judge considers on the question of voluntariness, if he determines that the confession is voluntary, the jury hears all over again on the question of credibility.

That’s correct.

In other words, the very same evidence that he’s heard, I gather, out of the presence of the jury —

James R. Thompson:

Yes.

William J. Brennan, Jr.:

— is that it?

Now, the jury now hears, I suppose, on — on the question of voluntariness, the defendant must take a stand on the case, is that it?

James R. Thompson:

Yes.

William J. Brennan, Jr.:

But he would not, on the issue of credibility, if it’s decided that he was not to take the stand, I suppose (Voice Overlap) —

James R. Thompson:

Well, the evidence would only go to the jury if the defendant chose to continue the attack on the confession and put in the same evidence before the jury that he put in before the judge.

William J. Brennan, Jr.:

I see.

James R. Thompson:

He could drop the matter entirely with the judge’s ruling and then the jury would hear no evidence on the credibility of the confession simply for the reason that the defendant was no longer attacking it.

William J. Brennan, Jr.:

Well, what actually the jury may hear then may differ in these respects.

If the defendant has taken the stand before the judge out of the presence of the jury, he may put everything else in before the jury but not himself take the stand, I take it.

James R. Thompson:

Yes.

William J. Brennan, Jr.:

Or, I take it, he may, on the issue of credibility, in addition to the evidence that was taken before the judge, also introduce more evidence, may he not?

James R. Thompson:

Yes.

William J. Brennan, Jr.:

He’s not precluded from it.

James R. Thompson:

That’s correct.

William J. Brennan, Jr.:

Now, what’s — do we have the charge in this instance?

James R. Thompson:

The charge —

William J. Brennan, Jr.:

Is it in the record?

James R. Thompson:

The charge would be in the printed or the original typewritten record before this Court.

William J. Brennan, Jr.:

Is that on a standard kind of thing?

James R. Thompson:

Yes, Judge.

No —

William J. Brennan, Jr.:

And was — no —

James R. Thompson:

No question has ever been raised in this Court —

William J. Brennan, Jr.:

No, no —

James R. Thompson:

— on the validity of the charge.

William J. Brennan, Jr.:

I’m — I’m not suggesting that there is.

James R. Thompson:

Yes.

William J. Brennan, Jr.:

I’m just trying to — I’m interested in getting to the form of it.

My state practice is different from Illinois and different from New York and different from other places.

I’m just trying to find out what you do in Illinois.

And the form of the charge is what?

That the — the jury now — the confession is in, all these additional testimonies were taken.

They’re told that the only thing you have to consider is whether this is a trustworthy confession and you must find beyond reasonable doubt that it is or not.

James R. Thompson:

I don’t think any burden of proof —

William J. Brennan, Jr.:

I see.

James R. Thompson:

— was stated to the jury.

William J. Brennan, Jr.:

It only goes, I gather, to the general burden of proof beyond a reasonable doubt as to guilt.

James R. Thompson:

Yes.

William J. Brennan, Jr.:

But that, nevertheless, the jury must be satisfied that it’s trustworthy, is that it?

James R. Thompson:

Yes.

And they are —

Hugo L. Black:

(Inaudible)

James R. Thompson:

That —

Hugo L. Black:

(Inaudible)

James R. Thompson:

Well, I can answer this way, Your Honor.

I have never seen that instruction offered and I have never seen any Illinois case which deals with the question of whether or not the judge must instruct the jury in terms of how great the burden of proof is.

It’s just isn’t done.

Hugo L. Black:

(Inaudible)

James R. Thompson:

Well, I — I don’t know whether that would —

Hugo L. Black:

(Inaudible)

James R. Thompson:

That’s — that’s never been requested in Illinois.

Illinois defense lawyers have never asked a charge which instructed the jury on the credibility of a confession in terms of burden of proof beyond a reasonable doubt.

Hugo L. Black:

(Inaudible)

James R. Thompson:

Well, even the — even the paid and highly competent lawyers haven’t, Your Honor.

That’s just simply not part of Illinois practice at all.

Byron R. White:

Well, Mr. Thompson, when the state offers a — the judge’s rule that it is admissible, the state offers the confession and, before the jury, it offers it and I suppose they offer it through a — through someone who heard him make it since he didn’t sign it here.

James R. Thompson:

It’s usually read.

Byron R. White:

The court — the court reporter —

James R. Thompson:

Yes.

Byron R. White:

— like in this case.

But the — as far as the state is concerned, that’s all the evidence it wants to get in about a confession, and if the defendant wants to put something else and it goes to the weight of the trustworthiness of the confession, it may pursue the matter further.

James R. Thompson:

Yes.

Byron R. White:

But would it ref — it might pursue it on a cross-examination of the reporter, I suppose.

James R. Thompson:

It might.

Byron R. White:

It might do it that way if it wanted, then on — but that would be all it could do on the State’s side of the case, is cross-examine the reporter.

James R. Thompson:

Yes.

Byron R. White:

Then, on his side of the case, if he wanted to call witnesses to prove involuntariness, he could, not to prove involuntariness but to show the fact going to trustworthiness.

But now, if he testified that if — if he did that, if he pursued the matter of — on his side of the case and if he had testified that the preliminary hearing before the judge could the State introduce his testimony before the judge?

Because I assume, at the preliminary hearing before the judge, the state has an unlimited right to cross-examine.

James R. Thompson:

Yes.

Byron R. White:

And are the — any admissions that he might make at that hearing admissible against him at the — later —

James R. Thompson:

As substantive evidence of guilt?

Byron R. White:

— before the jury (Voice Overlap) what?

James R. Thompson:

As substantive evidence of guilt?

Byron R. White:

Yes.

James R. Thompson:

It’s never arisen in Illinois in that context.

It has arisen in the context of a motion to suppress evidence illegally seized, and our Illinois Supreme Court has held that when a defendant takes the stand on a motion to suppress evidence, he waives his privilege against self-incrimination only for the purposes of the motion, so that if he does not testify at the trial and does not waive his privilege at the trial, the state cannot introduce submissions made on the motion.

Byron R. White:

So that if — so that if — if the same rule applied to coerced confession hearings, your system allows him to testify about voluntariness but he not — but the evidence — that evidence does not reach the jury.

James R. Thompson:

That’s correct, unless he —

Byron R. White:

The cross-ex — his cross-examination does not reach the jury.

Unless he takes the stand.

James R. Thompson:

Unless he takes the stand.

Byron R. White:

Unless he takes the stand at his trial.

James R. Thompson:

Right, correct.

Byron R. White:

I mean, before the jury.

James R. Thompson:

That’s correct.

If — if in Illinois, a defendant does not testify at all at the trial, nothing he said on the motion to suppress evidence can be used against him as an admission of guilt.

Byron R. White:

Even though he pursues it on his side of the case, introduces other witnesses and —

James R. Thompson:

That’s correct.

Even though he pursues it, if he —

Byron R. White:

Yes.

James R. Thompson:

— does not testify, it could not be used.

Hugo L. Black:

(Inaudible)

James R. Thompson:

No, Judge.

James R. Thompson:

In fact, it was only held recently in connection with a motion to suppress evidence.

Until then, we had wondered whether or not that was a rule.

There were some conflict in the other states, but I assume the same — the same analogy applies.

It’s dealing with the privilege against self-incrimination and whether or not you must waive that in order to pursue another constitutional claim of due process.

Hugo L. Black:

Did —

John M. Harlan:

(Inaudible)

James R. Thompson:

The Illinois rule now is and — and it was held specifically as to motions to suppress evidence illegally seized, that if the defendant takes the stand on the motion to suppress and testifies, he waives his privilege against self-incrimination only for the purposes of the motion and, if he does not testify at the trial, his evidence given at the motion cannot be used against him —

Potter Stewart:

I see.

James R. Thompson:

— whether as admissions or anything else.

Potter Stewart:

But the confession can be.

I mean, if it’s been held to be —

James R. Thompson:

Yes.

Oh, yes.

Potter Stewart:

— voluntary.

James R. Thompson:

Surely.

Potter Stewart:

Yes, yes.

James R. Thompson:

Now, the second distinguishing factor, I think, about Haynes versus Washington is the fact that in the opinion this Court specifically said that there really was no need for the police to pursue the questioned interrogation at the police department because at the time they started that interrogation, they already had sufficient evidence to bring the defendant to trial.

And the opinion specifically refers to an oral confession made shortly after the arrest.

In fact, I think on the way to the police department, which was not attacked in the court below and was not attacked in this Court.

And, therefore, the Spano concurring opinions and Crooker and Cicenia were distinguished on the grounds that here was not a situation in which the police were trying to clear up a crime or question a suspect.

Here, the police were merely seeking to reinforce already competent and sufficient evidence, and that is manifestly not true in this case.

In this case, at the time DiGer — or Escobedo was arrested the second time, there was only the accusation of a codefendant which had come some — an hour before he was rearrested.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

The codefendant was also convicted and he was sentenced to life imprisonment in the Illinois State Penitentiary and his conviction was just recently, last term, reaffirmed by the Illinois Supreme Court.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

He did not raise the question that was raised here.

So, I think that, unless we are to say that, in all coerced confession cases where no counsel is present, we will disbelieve the police and we will believe the petitioner, we cannot find a comparable situation with this case, with Haynes versus Washington.

And, Haynes versus Washington would not control the disposition in this case.

I think that was the fundamental error made by the Supreme Court of Illinois in its first opinion, an error which we pointed out in the petition for rehearing and an error which the court apparently very readily saw because they changed their minds completely.

And now said, in agreement with the state’s position that Escobedo said, “Aye”, and Montejano said “no” and that there was a conflict in evidence and therefore, the finding of the trial judge that the confession was not involuntary had to be upheld.

James R. Thompson:

And I think that even if reasonable doubt was the standard we were going to apply to these cases, if you have a case where one person says one thing and the other person denies it and that’s the only evidence, then the burden of proof beyond a reasonable doubt has been satisfied because that’s been held many times as to the ultimate issue of guilt in criminal cases where you have one identifying witness, for example, and you have the defendant’s denial.

That’s all the evidence there is.

Many courts all over the land have upheld convictions on the standard of proof beyond a reasonable doubt on that ground.

Hugo L. Black:

(Inaudible)

James R. Thompson:

Surely.

Hugo L. Black:

(Inaudible)

James R. Thompson:

Yes, sir, and he has to believe one or the other side, and when he —

Hugo L. Black:

Suppose that that is the rule (Inaudible)

James R. Thompson:

As I — Judge, as I read the earlier cases of this Court and perhaps I interpret them wrongly, but where the Court has said on earlier occasions, if there is a conflict in the evidence and if there is no other evidence which would lead us to favor one side or the other, but simply a conflict, this Court cannot find opposite to what the state Supreme Court found or the trial judge found.

Hugo L. Black:

(Inaudible)

James R. Thompson:

Well, suppose the situation in which one of the witnesses who conflicted the other, was substantially impeached by other evidence or the circumstances surrounding his denial, though apparently a flat denial, were equivocal such as the denials of the police officers in Haynes versus Washington.

In that special situation, this Court can reexamine as it said in Haynes.

But I think that’s a different kind of a situation that the Court is faced in prior opinions where they had simply said, “We will not reexamine conflicting evidence.”

Hugo L. Black:

(Inaudible)

James R. Thompson:

Yes.

Hugo L. Black:

That is more than the defendant did within that point of fact.

James R. Thompson:

Correct.

Hugo L. Black:

(Inaudible)

James R. Thompson:

Well, let me say this to Your Honor.

I agree that we can’t settle this by formula.

All I would say is that, in this case, whatever the rule is, this Court would not or could not reasonably find that the confession was either coerced or involuntary or was of promises of immunity.

Hugo L. Black:

(Inaudible)

James R. Thompson:

Yes, sir, that’s right.

Now, there are several things said in the argument by opposing counsel that I think ought to be clarified, although they’re perhaps not entirely material.

The first is that this was not a case of arrest with warrant.

It was the case of arrest without warrant and Escobedo, himself, specifically testified that at record 17.

It is true that the same trial judge which refused to suppress Escobedo’s confession, suppressed Chan’s confession.

And although he attempted to distinguish the two cases, I would not for one moment, suggest to Your Honors that the two cases can be distinguished with any meaning.

And all I can say to Your Honors is that, in suppressing Chan’s confession, the trial judge was wrong and that the only person harmed by that error was the state because then they were forced to nolle the case against Chan and he was not convicted.

It does not follow, however, I — as I think the petitioner seems to imply, that this Court should compound the error by also suppressing Escobedo’s confession because as we all know, two wrongs do not make a right.

James R. Thompson:

And the suppression of Escobedo’s confession in this case, I don’t think, would be a right result, so that we are not governed by the error made by the judge as to codefendant, Chan.

And it is not true that Escobedo was represented by the public defender.

Escobedo was represented by private counsel, Mr. Novak, at the time of the motion to suppress because the public defender had withdrawn prior to the decision on the motion to suppress.

There was also a question raised about the participation of the state’s attorney.

The evidence is I think clear that the particular state’s attorney, Mr. Cooper, who took the confession did not know that the attorney was attempting to see the defendant in the station.

As a matter of constitutional law, when we get to the second issue, I don’t think that has relevance by itself.

It is of course, offensive to us as lawyers to think that one lawyer, a government lawyer, would tell another lawyer “go get a writ” or use some other expression.

I don’t think our sensibilities as lawyers, particularly can govern this case.

But the testimony was by Mr. Wolfson that a police officer had told him that the state’s attorney had said, “Go get a writ.”

There is no direct evidence that the state’s attorney had in fact said, “Go get a writ”, and there are no police officer testified to that.

Now —

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

I think ultimately in Crooker, the state’s attorney participated and I think the same was true of Cicenia.

Let me move to that point now about whether or not this case can be distinguished from Cicenia.

I don’t think that it can be.

Certainly, it can’t be on the facts.

Now, there is some question raised that Cicenia was a — in a different posture before this Court for the constitutional issue reached because there was not a plea of not guilty in that case with a contested issue on the confession but, rather, what New Jersey call a plea of non vult.

But as I understand the majority opinion in the Cicenia case, the issue before the Court on the validity of the confession because of the absence of the counsel was the same as it would have been had there been a plea of not guilty and had the issue gone to trial on a motion to suppress because there was reference made in the majority opinion in Cicenia in a footnote to the case of Herman against Claudy which seems to imply that where there is a coerced or incompetent confession which precedes a plea of guilty, then the court may still reexamine that.

In fact that doctrine is involved in a case now pending before this Court, also from Illinois, on the question of whether or not a plea of guilty forecloses an independent reexamination of constitutional violations that may have preceded the plea.

And we took the position in Illinois in that case, and we take the position here in our answer, that a plea of guilty will not always foreclose consideration of constitutional violations.

And as I understand Cicenia, the court in that case was taking the same position that the plea of non vult did not foreclose an independent examination of whether or not that confession, I suppose, was a circumstance that prompted the plea of non vult if it was in fact, incompetent because no lawyer was present.

So, if the legal issues are the same, it’s clear to me that the facts of this case cannot be distinguished from the facts of Cicenia.

The ages of the petitioner are substantially similar.

He consulted with an attorney before he went to the police station.

The attorney was present at the police station.

He asked to see his client.

The client asked to see him.

Admission was refused and the confession followed, and those are the facts here.

So, I think that if this Court is to decide the case on the broader issue of whether or not the question is incompetent because of the lack of counsel, Cicenia must be overruled, Crooker must be overruled and certainly, the cases of Baker and Groban, the language in the majority opinions must also be severely limited.

Hugo L. Black:

(Inaudible)

James R. Thompson:

Baker and Groban, Your Honor.

Hugo L. Black:

(Inaudible)

James R. Thompson:

Yes, sir.

Those cases refer to this specific situation and on analogous facts held that —

Hugo L. Black:

(Inaudible)

James R. Thompson:

Yes, sir.

Groban and Baker would have to be overruled —

Byron R. White:

Well, what’s —

James R. Thompson:

— in my opinion.

Byron R. White:

Well, that’s alright.

James R. Thompson:

In re Groban.

William J. Brennan, Jr.:

Oh, In re?

Is that Baker?

James R. Thompson:

Well, In re Groban was the state fire marshal from Ohio.

William J. Brennan, Jr.:

Yes.

James R. Thompson:

And Anonymous against Baker was the judicial investigation —

William J. Brennan, Jr.:

(Voice Overlap) —

James R. Thompson:

— in New York State.

William J. Brennan, Jr.:

Yes, yes.

James R. Thompson:

And I think, certainly the language in the majority opinions in both those cases would have to be overruled if petitioner was to win favor here, although, of course, the factual situations are different.

Now, I think —

Potter Stewart:

On the other hand, I suppose this case could be affirmed without necessarily approving Groban and Baker, could it?

James R. Thompson:

Yes sir.

I think you could overrule Groban and Baker were that situation to arise in any case and at the same time affirm this case on the broad constitutional issue because there are elements of distinction.

As I remember, of both Groban and Baker, and certainly Groban, there was the element of compulsion of being held in contempt if you did not go in and answer questions without a counsel which, of course, is not present in a police station.

Be that as it may, I think this Court, on examination of the record by itself will conclude as did the Illinois Supreme Court the second time around, that the confessions were voluntary.

Now, I turn to the broader issue imposed by this case.

I don’t think there is any question under the intervening decisions of this Court, since Crooker and Cicenia and notably, Gideon versus Wainwright, that if this Court were to hold that Danny Escobedo had a constitutional right to consult with his counsel at the police station upon request, then that constitutional right is not only extended to Escobedo who had money enough to retain counsel and who had retained counsel banging at the precinct doors.

That constitutional right, it seems to me cannot help but to be extended to a man who does not have the money for counsel.

This Court said in Gideon that all persons, at least in felony cases, are entitled to the appointment of counsel.

James R. Thompson:

This Court said in the Carnley versus Cochran case that the right to counsel does not depend on a request for counsel and that a man who walks into the police station under re — under arrest who does not say, “I want a lawyer” is not waiving his rights to a lawyer.

And let —

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

Yes.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

Well, I think the answer to that, Your Honor, is two-fold.

First, if you accept the proposition that a man under arrest in questioning in a police station before charge is not entitled to counsel of his own, then I see no impropriety in counsel for the state taking part in the investigation or interrogation.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

No.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

That’s out.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

I don’t believe so.

I think you’ll find the actual practice, most states vary their practice.

In some states, the state’s attorneys never take part in interrogation.

Even Illinois, I think it works out that actually, the participation in the interrogation by a state’s attorney is unbalanced, a benefit to the defendant rather than if only police interrogation had taken place because a state’s attorney will usually see to it, in questioning a defendant, for example, about more than one crime, that only the crime with which they are going to try the man is put into that particular confession so that he would not be prejudiced at a later trial by a confession making reference to more than one crime.

That is a substantial benefit to the defendant.

It also breaks the ring of police, the contact with the defendant.

He sees someone other than somebody from the police department.

He sees somebody from what we might call the outside world.

Now, true (Inaudible) —

Byron R. White:

Well, that states that he ought to have his own counsel.

James R. Thompson:

No.

I say here, this is a benefit to the defendant.

It’s not —

Byron R. White:

Well —

James R. Thompson:

— something that should be extended to him.

Byron R. White:

You mean it —

James R. Thompson:

It’s a practical consequence.

Byron R. White:

And — and a needful benefit.

James R. Thompson:

Not necessarily.

In all of these confession cases, there enters the element of detention by the police only.

And unless we are to say there are to be no confessions, we cannot avoid that element.

All I say is that when the state’s attorney takes part in the interrogation, there flows a benefit of some consequence to the defendant but it is not a benefit that need be given to him.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

I say, one of the reasons is, Judge, that he is then no longer in strictly police custody.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

Oh, not necessarily.

Arthur J. Goldberg:

Unless it’s (Inaudible)

James R. Thompson:

Illinois — at least under the Illinois practice, when state’s attorneys participate in interrogations, their only purpose there is to stand there and record whatever the defendant wants to tell them.

They do not engage in extensive cross-questioning or extensive interrogation as a police officer might.

Their function is very much different.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

Oh, I don’t say that they’d be more fair than the policeman.

They’d — they’d certainly question less intensively than a police officer would.

Their function is essentially different.

The function of the police is to investigate crime and interrogate with the view to getting a solution to crime.

The function of the state’s attorney participating in the interrogation, at least as far as the Illinois practice is concerned, is when a defendant has confessed simply to take whatever the defendant is then saying and put it down in proper form.

Hugo L. Black:

(Inaudible)

James R. Thompson:

Yes.

Hugo L. Black:

To take it down.

James R. Thompson:

Yes, sir.

Hugo L. Black:

(Inaudible)

James R. Thompson:

That’s right because police aren’t — aren’t at all trained ordinarily in the finer points of taking confessions.

They have their own methods of writing out statements sometimes that are sometimes unsatisfactory.

They might question the defendant about more than one crime and then, at the trial, you’d face the problem of deleting references to the crime and making the confession suspect in the eyes of the jury and the function as to —

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

Oh, absolutely.

That’s the primary purpose.

There’s no doubt about that.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

Not if you take the view that the adversary system does not begin until the defendant has himself the right to a lawyer.

And, if you once accept the view that he has not the right to a lawyer during police questioning at the station —

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

Yes.

Arthur J. Goldberg:

(Inaudible)

James R. Thompson:

Well, to answer that, there’s no doubt that this Court has the power to hold that, as a part of Fourteenth Amendment due process, if a state’s lawyer participates in the investigation, that is the stage at which counsel must be given to the defendant.

You can hold that.

And there is, as you say, a policy argument for holding that.

I would be of the different view.

I would take the position, and the State of Illinois takes the position, that the mere interjection of a state’s attorney at the end essentially of the interrogation process to take the final confession is not such an interjection of the adversary system that requires the appointment of counsel for the other side.

And let me make one point in conclusion.

It should be very clear that we’re not talking merely about an opportunity to consult counsel.

Now, it’s true, as Mr. Justice Stewart pointed out, that I ended up my brief by saying if Danny Escobedo had consulted counsel, he would not have confessed.

Perhaps that’s a little too broad, but the concurring opinion in Spano and the New York decisions make very clear that it is not the absence of consultation with counsel that is important.

It is the absence of counsel that is important.

And so, I take it that if Mr. Justice Stewart’s concurring opinion were the majority view, if the question arose again, that a man under indictment who clearly has the right to counsel who was questioned at all by the police, no matter how many times he had consulted with counsel since his indictment, if the confession came in the absence of counsel, and those were the words used in that concurring opinion, “the absence of counsel”, the confession would be incompetent.

So, if this Court were to hold that a defendant under arrest and in — under interrogation in a police department has the right to counsel, this Court must hold the confession incompetent in the absence of counsel which means, essentially, there will be no more confessions.

Thank you.