Haynes v. Washington – Oral Argument – February 27, 1963

Media for Haynes v. Washington

Audio Transcription for Oral Argument – February 26, 1963 in Haynes v. Washington

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Earl Warren:

Raymond L. Haynes, Petitioner, versus Washington.

Mr. Kain.

George A. Kain:

Mr. Chief Justice, if the Court please.

The petitioner in his opening argument related to the facts, surrendering original detention of the petitioner, Raymond Haynes.

I would like to cover some of the facts that occurred after this original surrendering detention.

After Mr. Haynes had been taken into the police car and transported to police headquarters —

Potter Stewart:

What time did that happen?

What time of the day?

George A. Kain:

He was arrested at 9:25.

He reached the police headquarters at about 10 p.m.

That’s indicated at the record — in the record on page 55.

He was there questioned by Lieutenant Wakeley for a period of one-half hour and one-half hour only.

That also appears at page 55 of the record.

At that time, he confessed in detail to the robbery of this service station in conjunction with the help of his brother.

When Lieutenant Wakeley testified, he was not asked the question: Did Raymond Haynes asked you if he could call a lawyer or asked you to call a lawyer for him.

Lieutenant Wakeley was never asked this question.The questions in this regard were asked at page 56 of the record.

After the petitioner orally confessed to Lieutenant Wakeley, the lieutenant testified that he may have asked to call his wife, and the lieutenant told to petitioner Haynes that his wife would be called.

The petitioner in his testimony did not testify that he had ever asked Lieutenant Wakeley to call a lawyer.

The lieutenant testified at the trial and he stated in detail what Mr. Raymond Haynes had told him with respect to his oral confession.

No objection of any kind was offered by the defense to the lieutenant’s narration of this oral confession.

The lieutenant finished with the petitioner, Raymond Haynes.

In other words, he finished talking to him at 10:30 p.m. on the evening of his arrest.

That’s found in the record at page 55.

The petitioner was placed in a lineup for about 15 or 20 minutes according to his own account.

That appears at page 98 of the record.

He was then taken to the city jail, not the county jail.

The city jail is in the same building with the detective headquarters.

This appears in the record at page 98.

The petitioner himself indicates that he was taken to the city jail.

The petitioner himself testified that nothing else was done that night.

George A. Kain:

That’s found at page 98 of the record.

This puts aside any question as to whether or not there was any nighttime questioning.

William J. Brennan, Jr.:

What page is that?

George A. Kain:

Page 98 of the record.

The petitioner testified that nothing else was done that night.

The time as near as we can determine from the record that he was placed in the city jail was about 11 p.m. to 12 midnight.

There’s no real way of telling what time it was.

There’s no indication of any deprivation of adequate food or adequate sleep.

Now, the petitioner testified that Detective Pike who worked at 4 p.m. to midnight shift on this evening, made promises to him, and that he asked Detective Pike for an attorney.

The record shows, however, that Detective Pike never talked to the petitioner that he was in the same room with him; that he dealt with the petitioner’s brother Keith Haynes but that he had no dealings with Raymond Haynes other than to place him in the lineup.

Hugo L. Black:

What did he testify?

George A. Kain:

The detective, Your Honor?

Hugo L. Black:

Yes.

George A. Kain:

Detective Pike testified that he had never talk with the petitioner.

That’s found at page 51 of the record.

This is in complete contradiction to Raymond Haynes’ testimony that Pike had promised him communication if he would confess and that Pike had told him that — or that — excuse me, that he had asked Detective Pike if he could call an attorney.

Arthur J. Goldberg:

(Inaudible)

George A. Kain:

Your Honor, under the practice that existed in Spokane of 1857, there was a police department rule that held if a man is detained on investigation only, that he is not permitted phone calls.

There is a —

Arthur J. Goldberg:

(Inaudible) disregard what will happen to (Inaudible) the record is clear, was that — he was not given a phone call to his lawyer or to his wife.

George A. Kain:

Only two people testified in this regard, Your Honor, one was the lieutenant who testified that no phone calls were permissible.

Lieutenant Cockburn testified that he did not know whether a man would be permitted to call an attorney.

Arthur J. Goldberg:

Well, is that in the record as (Inaudible)

George A. Kain:

Yes, nothing was said, Your Honor, with respect to the delivering of messages or anything of that nature.

And in this case, of course, the lieutenant told the petitioner that he would inform his wife that he was being held.

I can contend that this is a means of communication, both of these.

Arthur J. Goldberg:

(Inaudible)

George A. Kain:

That’s correct, Your Honor.

The — the next morning, the morning after the petitioner’s arrest at 9 a.m., the petitioner was fingerprinted.

At 9:30 a.m., Detectives Cockburn and — not Detective Pike but Detectives Cockburn and Peck first talked to the petitioner.

George A. Kain:

They interrogated him for one and one-half to two hours according to their version indicating they started at 9:30.

This is found in the record at page 67.

Actually, they interrogated Petitioner Haynes for one and one-half hours because a stenographer testified that she completed the dictation of the written confession, Exhibit 6, at 11 a.m., one and one-half hours after the two detectives first spoke with Petitioner Haynes.

During this one and one-half hour period, the Petitioner Haynes made an oral confession to Detectives Peck and Cockburn.

The oral confession was a detailed one.

Detective Cockburn testified in detail at the trial as to the contents of this oral confession and there was no objection of any kind to his testimony.

According to the petitioner’s version, he was questioned one hour or longer by these two detectives; that’s found at page 99 of the record.

The petitioner in this written confession made no request to call —

Earl Warren:

Was there any — excuse me for interrupting you.

But the — was there anything in the record as to whether during that conversation that you just related, he asked to see either his wife or an attorney or to communicate with them?

George A. Kain:

Yes, Your Honor, there is.

The petitioner testified that he asked these two detectives for permission to call his wife, not an attorney, but his intention was to call his wife.

He testified that they promised him this telephone call if he would confess.

I contend that the record is conflicting because of his own later statements and because of statements of Detective Cockburn who testified.

Hugo L. Black:

Because what?

George A. Kain:

Because of the petitioner’s own later statements, Your Honor, and because of the testimony of the Detective Cockburn who testified.

Earl Warren:

What did he say?

George A. Kain:

I might first state, Your Honor, that the petitioner in his confession made no request for an attorney, nor did he request —

Earl Warren:

You mean the confession is testified too by the officers.

George A. Kain:

In the written confession, Your Honor, made no request.

He did request to call the prose — to see the prosecuting attorney.

He made no other request to that of any nature.

As I indicated, he attributed promises and denials of communication to Detectives Peck and Cockburn.

However, when he was asked a few moments later, the determination of this written confession, he was asked this question: “Did we –” meaning Detectives Peck and Cockburn, “– make any promises or threats to you?”

And he replied, “No.”

Now, this was in direct and absolute conflict with his testimony at the trial.

He was then asked —

Hugo L. Black:

Pardon me but, I thought at the end of the written confession, the questions and answers, there was a statement by him that he had to — they had promised that they would call his wife.

George A. Kain:

Yes, Your Honor, I’m coming to that —

Hugo L. Black:

Yes.

George A. Kain:

— just a moment.

Hugo L. Black:

Well, that doesn’t — I just didn’t quite understand it, how you reconcile with that?

George A. Kain:

Well, Detectives Peck and Cockburn said to him, “Did we make any threats or promises?”

The petitioner replied, “No.”

The detectives then asked, “Has any police officer made you any threats or promises?”

And the petitioner, in response to that question, even though he did in his testimony, he attributed promises to various officers, in response to that question, he said only one thing, “No, except the lieutenant promised me that when I was booked and not when I confessed, that the lieutenant promised me when I was booked, I could call my wife.”

Now —

Earl Warren:

Well, the officers have already testified that he wouldn’t be booked until he did make a statement.

George A. Kain:

No, that is not correct, Your Honor.

They never testified to that.

There’s — there can —

Earl Warren:

What did they testify to in that regard?

George A. Kain:

They testified, Your Honor, that in this only that he could not call until he had been booked.

The officers never admitted and it is our contention that it does not occur that he was ever told that he could call his wife only when he had confessed or cooperated.

That was contended but that is not our position and no —

Earl Warren:

Was that categorically denied by the officers?

George A. Kain:

The officer who testified Detective Cockburn was asked, I believe, first of all, whether or not, the Petitioner Haynes had asked to call his wife and I believe Detective Cockburn indicated that he could recall no request of this nature.

He did not category — categorically and unconditionally deny this.

He was asked whether or not, he promised the Petitioner Haynes the right to call if he confessed or cooperated, I believe.

He did not categorically deny this but he did say, “I don’t recall”, or “I don’t remember”, or “I don’t recall any such request.”

Now, that doesn’t mean, Your Honor, that a request was made.

It means that in this officer’s recollection, he recalled no such request by the petitioner.

And my contention is this: the petitioner himself said there were no promises in his written confession which he signed.

Then two or three hours after he dictated this confession, he was asked to read this confession over and make corrections if there were any mistakes.

He read this confession.

He did make corrections, but he did not make any corrections with respect to whether he had been made any promises, indicating at that time that the only promise he had been made since his arrest was the promise that he could call his wife when he had been booked.

And I submit that this promise call for nothing from this petitioner.

It depended upon his being booked, in other words, that arbitrary point which the officers wrote his name in another section of the log in the jail charging him with a specific crime.

Hugo L. Black:

Well, did the — what did the officers say about this part of the confession where he had said that he has been told that he could call his wife after he confess or whatever it was?

George A. Kain:

Excuse me, Your Honor.

Hugo L. Black:

What did the officers — what did the officers say in response to that, this part of the confession?

George A. Kain:

Your Honor, possibly a — I didn’t — I didn’t make myself clear.

The officer was asked whether he had told the petitioner that he could call his wife when he had confessed.

And the officer said he could not remember, I believe.

Hugo L. Black:

But I understood you to say a moment ago that the officer had told him that he could not call his wife until he was booked.

George A. Kain:

Well, Your Honor, my contention is this.

That is correct.

Two officers told him that.

Hugo L. Black:

What did that mean?

George A. Kain:

Your Honor, to me when he was told that he could not call until he was booked, that meant that he could not call until the police decided to place his name in another portion of the log in the jail, not that he could not call until he confess.

I don’t believe there’s any testimony in the record other than from the petitioner himself that says — that he was told that you can call your wife only when you confess or cooperate.

Hugo L. Black:

To that language but didn’t you say that he was — what — what was meant by booking?

How long was he going to wait?

How long do they hold him of that booking?

George A. Kain:

Well, Your Honor —

Hugo L. Black:

For what?

George A. Kain:

In the State of Washington, we don’t have what apparently is called the Mallory rule.

A man must be taken before the justice of the peace or a committing magistrate within a reasonable time.

This man was arrested after the Court had closed on a Thursday.

He was given an appearance before a committing magistrate the following afternoon; the day, the first day of Court session in the afternoon.

Hugo L. Black:

Well, when they have told him as you said it is, he couldn’t call his wife until after he was booked, what was the impression left by that as to what booking meant and when it did take place?

George A. Kain:

Well, —

Hugo L. Black:

I’m asking because it’s — and reading it in context of what you have said, occurred to me that it meant that when they got to the question, he need be booked.

Is that about the thing he does?

George A. Kain:

He — the petitioner himself although I have no way of knowing may have taken this view that when they were through questioning him, he would be booked.

But that does not mean I submit —

Hugo L. Black:

Is that your practice?

George A. Kain:

That was the practice, I believe, in —

Hugo L. Black:

What’s the practice at that time?

George A. Kain:

— in — in 1957, that they could hold him for a reasonable time.

Hugo L. Black:

The time this happened it was the practice to hold him, not book him until after they interrogated him.

So, they either got a confession or (Inaudible)

George A. Kain:

Well no, Your Honor, the police had a duty to produce the defendant before a justice of the peace or a committing magistrate within a reasonable time.

They couldn’t hold him forever, and this man was given an appearance the following day.

Now, as I said, I can’t tell what the petitioner had in his mind.

Hugo L. Black:

But wouldn’t that — doesn’t that — maybe I’m wrong about it but I — reading it, I read it, I drew the impression what you meant — what was meant by that when the officer said that context of what was said in the context to what the petitioner said that the — was denied by anybody so far — that’s all.

That it meant that after they got through with him, that he confessed, he’d be — or if they reached the conclusion he would never confess that he might be able to call his wife.

George A. Kain:

Well, I — Your Honor, I can’t assume how long they would hold this man.

He had already confessed twice.

He confessed the first time before he made any request.

Now, how could he possibly be contended that they would hold him until he confess, be — he had already confessed before he did any request.

Hugo L. Black:

Well, they were — they were holding him and asked him a lot more after he had confess, what we are holding, want to keep on asking questions on that if he’d already confessed twice.

George A. Kain:

Well —

Hugo L. Black:

Or make it three times that’s famous in history but —

Arthur J. Goldberg:

(Inaudible) Mr. Justice Black’s question between the (Inaudible) statement is complete and they (Inaudible) his signed confession?

Weren’t they after the signed confession?

George A. Kain:

Well, apparently the next morning they were, yes Your Honor.

Arthur J. Goldberg:

Yes.

So there is quite a distinction.

This is a very, very substantial distinction when you go to trial.

George A. Kain:

There is a substantial distinction, yes.

Arthur J. Goldberg:

(Inaudible)

George A. Kain:

Yes, there is Your Honor.

John M. Harlan II:

Could I ask you a question at this point?

Are the instructions that were given to the jury on pages 16 and 17 of the record, are those as given by the trial court?

George A. Kain:

I believe so, yes Your Honor.

John M. Harlan II:

I mean these are not request to an — to instructions.

These are actual instructions.

George A. Kain:

Yes, the requests with the instructions are also in the record.

John M. Harlan II:

Well, I’m interested in the instructions themselves and I want to make sure that what was — what I’m reading on page 16 and 17 were the instructions.

George A. Kain:

The trial court’s instructions on 16 and 17, those are the trial court’s instructions that deal with the voluntariness and with the statute in question.

John M. Harlan II:

Including the question of the relevancy of the absence of counsel.

George A. Kain:

Yes, Your Honor.

I might make this statement in that regard, Your Honor, the — excuse me, I’ll pass that for the moment.

Hugo L. Black:

That charge makes a distinct — this distinction, as I read it, am I correct in that, that if there had been so many threats, the jury was instructed that they could not use the evidence against him, you’re not considering that.

But that if they had offered inducements for him to confess, it could be used as evidence against them.

George A. Kain:

Well, Your Honor in the State of Washington at that time, the jury was the ultimate decider as to the voluntariness of the confession just as they decide guilt or innocence.

Hugo L. Black:

I understand that but I was talking about the two, just divided, the charge divided, the jury — jurisprudence in two parts: (a) If the threat — if they have found that the threat discretion had been induced by threats of violence or threats, then they couldn’t use it against him at all.

George A. Kain:

That’s correct, Your Honor.

Hugo L. Black:

But if it was induced by promises or hope of reward, then they could use it against him.

George A. Kain:

I believe at that time, Your Honor, they were permitted to consider the statement and the effect that the inducements — excuse me, may have had with respect to voluntariness, and I believe the next paragraph of that instruction holds that if the jury found that the inducements were sufficient to overcome voluntariness, then they were not to consider that confession.

Hugo L. Black:

A different distinction being if — they could consider their confession even though it’s induced by promises, but they could not sustain a conviction unless there was corroborating testimony about it.

George A. Kain:

No, Your Honor, I believe —

Hugo L. Black:

On page 1 – Number 11.

George A. Kain:

Yes.

As I read the — it would be the fourth paragraph —

Hugo L. Black:

I’ve never seen one exactly like it, has so indicated.

George A. Kain:

Well, as I read the fourth paragraph Your Honor, they were permitted.

The jury were permitted to consider the statement and the inducements.

However, setting aside the question of corroboration, the jury was to decide whether or not these inducements were sufficient to overcome the will of the accused.

Hugo L. Black:

Were they permitted to do that in case of a threat?

George A. Kain:

In case of a threat, Your Honor, I believe —

Hugo L. Black:

Influence of peer, threat accorded on —

George A. Kain:

Fear and produced by threats I believe, made the confession involuntary.

Hugo L. Black:

Made it involuntary.

George A. Kain:

In inducements —

Hugo L. Black:

But inducement did not.

George A. Kain:

Did not, unless the jury felt in their opinion that the inducement was sufficient to overcome the will of the accused.

Arthur J. Goldberg:

(Inaudible) in the inducements not to overcome the will (Inaudible) this cooperation from the will?

(Inaudible) to get you to cooperate?

George A. Kain:

Oh yes, what I — what I meant to say, Your Honor was that they were to consider inducements if they existed and consider whether or not the inducements were sufficient to overcome the will of the accused.

The question, the prime question before the jury was, is this confession voluntary?

The trial court under the Washington practice at that time had only this authority if the State conceded that the confession was involuntary or the admitted facts show that the confessional was involuntary.

The trial court could withhold it from the jury.Other than that, the jury decided the question of voluntariness just as they decided the question of guilt or innocence.

The petitioner when he testified with regard to the post-confession procedure made this conclusion in answer to a question that he was not allowed to call his — to call his wife.

He indicated that he had no purpose to call an attorney and merely said to call his wife.

There was no testimony of any request that he actually made to anyone to call other than the request to the lieutenant and the conflicting request made to the conflicting evidence as to request made to other police officers.

There were no jailers produced at the trial to indicate that they had received request and refused them.

The petitioner’s wife testified.

She indicated that — she went to the city jail the day following the petitioner’s arrest and she asked merely this question, or she called the city jail by telephone.

She asked this question.

“Is Raymond Haynes in jail?”

And she was told, “Yes, he is.”

She then asked why and she identified herself and said that she was Mrs. Haynes.

The police at that point refused to give her further information.

Of course, this was a telephone call.

They had no way of knowing that this was Mrs. Haynes or merely a curious neighbor.

And they said if you want to know why he’s in jail, read it in the papers.

She did not —

Earl Warren:

In the newspaper?

Read the newspapers, —

George A. Kain:

Pardon?

Yes.

Earl Warren:

— did they?

George A. Kain:

She did not ask to see Mr. Raymond Haynes.

She did not ask to call him by telephone.

She made no request at that time other than why he is in jail — why he was in jail.

And this is found at page 131 of the record.

Now, the following day, she again went to the city jail and she asked about Raymond Haynes’ automobile.

She talked to Detective Cockburn.

George A. Kain:

She did not ask to visit him at that time.

Now, bear in mind that this is after the confession, after the booking so that the rule did not prevent her seeing the petitioner.

She could have seen him had she sought too, because there was no so-called small book rule once he had been booked.

She went to the jail personally after he had been booked but she did not ask to see him, she did not ask to telephone him, she did not ask that a message be delivered to him.

She only asked about the family car.

Arthur J. Goldberg:

(Inaudible)

George A. Kain:

I believe I’ll have to concede that, Your Honor, yes.

Earl Warren:

Didn’t he claim — didn’t he claim here that for some days after the confession he was denied the opportunity to see either his wife or a lawyer?

George A. Kain:

That’s correct, Your Honor.

Earl Warren:

Is there — is there contradiction of that in the evidence?

George A. Kain:

Well, Your Honor in that regard, the petitioner’s wife and the petitioner both indicated that they had no communication for —

Earl Warren:

Well, I didn’t ask that.

I said he — he claims that he was held incommunicado.

He denied the opportunity to talk to anyone for days after the confession.

Now, was that contradicted?

George A. Kain:

Your Honor, there is nothing in the record, no jailer to say that that was not the fact, no.

The petitioner testified to the conclusion that he was not allowed to call.

The State produced no law enforcement people to show that that statement was false.

Earl Warren:

Then I suppose for what it’s worth, we’d have to take it as true.

George A. Kain:

Being post-confession procedure for what it’s worth —

Earl Warren:

Well, what its worth, they say, yes.

George A. Kain:

— as you say.

Although as I indicated, the rule did not prevent communication once the man had been booked, the rule, it was enforced at that time.

And the petitioner’s wife testified that she first saw the petitioner one week after his surrender.

That’s on 131.

She didn’t testify that she’d ever tried to see him before that.

She merely said she first saw him at that time.

And the rule would not have prevented her seeing him, nor would the rule have prevented the petitioner’s calling out.

The rule applied to those held by the police charged with merely investigation for a crime and not booked for a specific crime.

Hugo L. Black:

May I ask you regarding the verdict of this crime, what kind of case did you have against the man without the confession?

George A. Kain:

Well, Your Honor I’ll have to admit this case without the confessions was rather unusual.

There were two eye witnesses.

One of those has since died.

These eye witnesses —

Hugo L. Black:

Did he testify?

George A. Kain:

Yes.

Yes, he did.

And he identified the accused and his brother as being those two persons who had committed a robbery upon himself at his service station.

Of course, these three oral confessions, the confession to the uniformed officers, the confession to Lieutenant Wakeley, and the confession to Detectives Cockburn and Peck were also in evidence.

Hugo L. Black:

I say, aside from the confessions, you say you had one witness that identified him to the jury?

George A. Kain:

Yes, Your Honor.

Hugo L. Black:

And he since died then what —

George A. Kain:

No, there were — there were two witnesses that gave — each gave — giving a partial identification that one of those two witnesses has since died, yes.

Hugo L. Black:

What do you mean by partial evidence then?

George A. Kain:

Well I’m — I believe that the service station owner testified and his wife testified, gave a partial description of the accused as I recall.

Her testimony isn’t in the record but I don’t think that —

Hugo L. Black:

Did he identify him?

George A. Kain:

Yes.

Yes, Your Honor.

Hugo L. Black:

Both of them?

George A. Kain:

Yes.

Earl Warren:

Why isn’t that in the record?

George A. Kain:

Well, Your Honor, each party of course had the duty to designate those portions of the record to be prepared for this Court and in view with the cause involved, I felt that I — if I set forth a portion of the testimony of the actual victim, the owner of the service station, that would indicate that there was at least one eye witness.

I then went to the portion of the record which covered the wife and I could find no small number of pages that encompass this identification that I could pick out and put in the record so I left at it indicating that the owner himself had identified the accused.

Hugo L. Black:

You say you couldn’t find anything in the wife’s testimony?

George A. Kain:

No.

Hugo L. Black:

(Inaudible)

George A. Kain:

No, Your Honor, I couldn’t find anything within a period — a space of — a page or two, and I didn’t wish to expand the record forever.

I thought it would —

Hugo L. Black:

You didn’t find a — any statement where you’ve said, is this the man and she said, yes.

Hugo L. Black:

Is that it?

George A. Kain:

It’s — it’s in the trial court record, yes Your Honor.

Hugo L. Black:

It was.

George A. Kain:

But you’re aware of how trials proceed, questions are asked and some answers aren’t responsive then they refer to it again and I thought it would be sufficient to indicate in as much as the truthfulness of a confession or other evidence —

Hugo L. Black:

Not crucial in this case, I was —

George A. Kain:

Yes.

Hugo L. Black:

— just curious as to why (Voice Overlap) —

George A. Kain:

I felt it because —

Hugo L. Black:

— (Inaudible) confession if you have a good case without it.

George A. Kain:

Well, I think the State had a pretty good case without the confession, yes.

Earl Warren:

The only reason I asked that question was because you said two other witnesses partially identified him.

Now —

George A. Kain:

Well, I meant —

Earl Warren:

Since that — since you’ve stated — said that, you have said that they did positively identified him.

George A. Kain:

Well, the record indicates the identification of the husband, the owner of the service station.

And my recollection is that his wife was not as sure in her identification as he was.

That’s all I can say, Your Honor.

If the Court please, under a consideration of all of these circumstances, it made the following observations to be compared possibly with other cases although that is not critical or decisive.

The petitioner here was an adult.

He was a person of average intelligence according to his testimony at the trial.

He was a skilled workman.

He was a sheet metal worker.

He’d been convicted of five serious crimes including robbery, theft of a car, breaking and entering, jailbreak, resisting arrest.

He was on parole at the time he came to the State of Washington and he was pretty familiar with the law enforcement procedures.

In other words, he — as our — the Supreme Court of the State of Washington held he was not a lamb.

He was told only that he could call his wife when he was booked on a specific charge.

He was never told according to the undisputed evidence that he could call his wife only when he confessed.

He made two oral confessions after his surrender and initial confession.

He was detained for about 14 hours without being permitted communication prior to signing — excuse me, 14 hours prior to the dictating the written confession.

And he was detained 16 hours prior to his signing this written confession.

George A. Kain:

He was giving — given a hearing as I indicated before a committing magistrate within 17 to 19 hours after his arrest and the day following his arrest when the courts were not in session on the day of his arrest.

And this is kind of unusual.

It’s contrary to the majority of the confession cases, at no time did this petitioner denied his guilt to the police.

From the very moment of his arrest, he did not deny his guilt; he confessed.

He was interrogated for a total time of one hour and 15 minutes according to one account, the maximum time that he could have been interrogated by all persons concerned was two hours and 20 minutes.

During this time, during this two hours and 20 minutes maximum, he made four separate confessions; three of them oral and one of them written.

Tom C. Clark:

Did I understand you to say that he confessed along the way to the police station?

George A. Kain:

Well Your Honor, confessed, when I use that term, I didn’t mean a confession in detail.

He said he was the one they were after.

He got in the car and said he’d robbed the service station.

He then pointed out the service station he had robbed.

In other words, to my way of thinking, that’s a complete admission of his guilt unless a confession brief as it may be.

Tom C. Clark:

By the owner of this small business at that time?

George A. Kain:

At that time, Your Honor, he was actually had not been booked on any charge.

He was on his way to the police station.

Tom C. Clark:

Then when was this second statement to that police officer?

George A. Kain:

The second statement commenced at 10 p.m. and finished at 10:20 or 10:30 and he made no request of any kind during that time.

Tom C. Clark:

Was he on the small book then?

George A. Kain:

I don’t believe he’d been booked at that time, Your Honor.

I think he was placed on the so-called small book after he’d been placed in the lineup.

They’re placed on this book when they‘re — all it is, is a jail log.

And their names are placed in this jail log when they’re taken to the jail.

In this case that didn’t occur until maybe 11 or 12 o’ clock.

Tom C. Clark:

Then there was no prohibition — if there is a rule that is a prohibition against the cause after the small book entered to put you, there was no such prohibition until the time of the lineup.

George A. Kain:

Well, that’s true.

Of course, the uncontradicted test of testimony is that the petitioner didn’t ask to make any telephone call to anybody until he’d confess twice orally.

Tom C. Clark:

Was that after the lineup that he asked the first time?

George A. Kain:

No, it was before the lineup and after —

Tom C. Clark:

(Inaudible)

George A. Kain:

After he had confessed to Lieutenant Wakeley at about 10:20 or 10:30 p.m..

Tom C. Clark:

That’s when he asked him to contact his wife.

George A. Kain:

The lieutenant could not recall for certain whether he asked to call his wife but he must have because the lieutenant then admitted in his testimony that he had told the petitioner that he, the lieutenant, would call his wife.

Tom C. Clark:

Well, the rest of the custody was incommunicado, whatever you want to call it, was in order to —

George A. Kain:

Well it —

Tom C. Clark:

— to write up the confession, is that your theory?

George A. Kain:

Well, Your Honor, I can’t explain why the police held this man after they had — had two oral confessions.

As Mr. Justice Goldberg drew from me, it’s obvious that the police desire a written confession.

Tom C. Clark:

He had — he had oral statements to two separate officers.

George A. Kain:

That’s correct, Your Honor.

Earl Warren:

What is the purpose of the small book?

George A. Kain:

Well, Your Honor the — the small book, other than the infamous name it’s acquired recently, the small book is just a log, as I indicated, in the jail, and the booking procedure required that a man who is booked on a specific charge would be put in what I would imagine they must have called the large book.

And if no specific charge had been brought against the man, in other words, if he had until that point at which a warrant and a complaint had been filed, he could be held only on the small book.

Earl Warren:

You mean that if the police arrest a man a few moments after a robbery and he is identified by the people whom he robbed and he confesses to the robbery, that he — he isn’t arrested, in the normal sense of the word and — and then subject to all of equal processes that are either available to or against him as an arrested man.

George A. Kain:

Well, Your Honor, I must admit that the practice in Spokane, Washington at that time until this day is this.

That —

Earl Warren:

To this day exists, you say?

George A. Kain:

No, no, not this small book rule, Your Honor.

People now are permitted to use the telephone, permitted communication with friends and attorneys.

This small book rule didn’t last for any period of time.

But the practice, they does continue in the City of Spokane is this.

That when a man is arrested even though the question of his guilt is obvious, he is not taken before a committing magistrate until legal process had be filed in the Court, because the purpose of the judge is twofold.

First, to advice the man as to his constitutional rights, secondly, to set bond, he cannot set bond until he’s been fully apprised to the facts surrounding the offense and he sets bond by looking at the allegations and the warrant questioning the officer and then deciding what the bond shall be.

So the practice is that within a reasonable time after an arrest, the complaint warrant are tied up, presented to the judge for signing, and at that point, that the man is given a hearing.

Earl Warren:

Well, do you submit that that — that’s the only reason this man was not put on a regular book before he was in this case?

George A. Kain:

Well, Your Honor, I can say this.

If the — if this had occurred during the ordinary business hours, he would have been taken immediately to the prosecutor’s office on the basis of what he had said, a complaint and warrant would have been typed up because it was obvious that this man had — a crime had occurred and this man had committed it.

This would have been presented to the judge and then he would have been given an appearance at that time, because the judge would have had something to deal with.

Earl Warren:

But here in this case that happened late at night and the police and everybody went home and went to bed, and got up in the morning and — in the morning, they didn’t do that.

George A. Kain:

That’s correct.

Earl Warren:

They went after him again.

George A. Kain:

That’s correct.

Earl Warren:

And didn’t — then didn’t book him until — until he had made this written confession, had signed it.

George A. Kain:

That’s correct, Your Honor.

Earl Warren:

So that doesn’t quite bear out, does it?

The conclusion that the only reason they don’t charge him immediately is because they want to have him advise of his rights.

George A. Kain:

No, I’m sorry, I may have misunderstood.

I didn’t — it’s true in this case they could have — they could have been present at the hour of 8:30 the next morning to request a formal complaint and warrant on the facts that they had at that time.

Earl Warren:

Yes.

Tom C. Clark:

He just — the brother confessed?

George A. Kain:

Well, this is kind of an oddity.

His brother in sharp contrast to this petitioner had no criminal record.

His brother steadfastly refused to confess.

He may have confessed but of the inception at the very beginning with contrast to Mr. Haynes, Raymond Haynes, he said nothing to the police.

Tom C. Clark:

He said what?

George A. Kain:

He said nothing to the police.

I’m not certain.

I believe a written confession was introduced in evidence with respect to the petitioner Keith Haynes.

The time, I believe, he was questioned for about the same period of time that Raymond was.

Tom C. Clark:

When did he first confess?

Earl Warren:

Who?

Raymond or the —

Tom C. Clark:

The brother.

Earl Warren:

The brother.

Tom C. Clark:

I mean, the brother.

George A. Kain:

I believe it was sometime before noon, as I recall.

Tom C. Clark:

The next day?

George A. Kain:

Yes.

Tom C. Clark:

Well, is this small book in the nature of a booking for investigation purposes?

George A. Kain:

That’s what it amounts to, yes, Your Honor.

Tom C. Clark:

Could it be possible that the police were trying to tie in the brother who had not confessed —

George A. Kain:

That’s possibly, yes Your Honor.

Tom C. Clark:

— when they booked him on the small book?

George A. Kain:

That’s possible.

Earl Warren:

Was the brother convicted too?

George A. Kain:

The brother was convicted and received probation, yes.

If I could complete this summary, Your Honor, the — there were no false inducements to confess in this case.

There was no indication of lack of adequate food and rest.

There was no nighttime questioning unless we consider nighttime from 11:00 to midnight.

There was no physical violence.

He was questioned by only four officers, I submit, in contrast to the petitioner’s briefs.

He was confe — questioned by officer — five officers.

Officer Usher, the uniformed officer, Lieutenant Wakeley, Detectives Peck, Cockburn, and Detective Pike.

In this case, no person, relative, friend, or attorney actually sought to visit with petitioners and was turned away.

The testimony undisputed is that if an attorney went to the jail to see him, he would have been admitted.

The petitioner’s wife knew of his incarceration at least the next day, the next morning and could have seen fit to her an attorney who would have been admitted in the jail even under the rule excluding friends.

Tom C. Clark:

Did Wakeley notify?

George A. Kain:

There’s nothing in the record to indicate whether he notified her or not, Your Honor, but the fact that she appeared at the police station the following day and said, “Is Keith in jail?”

(Inaudible) Err, excuse me, “Is my husband Raymond in jail?”

You can take that either way that she’d been told and was verifying it or that she had not been told and was there asking for him because possibly he hadn’t come home.

Tom C. Clark:

Is that before the written confession?

George A. Kain:

That must have been before — after the dictation of the written confession and before the signing of the written confession.

Earl Warren:

Well, he — a lawyer couldn’t have seen him during the time he’s on this small book, could he?

George A. Kain:

Yes, he could Your Honor, if the lawyer had known he was in jail.

Earl Warren:

I thought the lieutenant testified that he could not, am I — you know the record better than I do.

If he didn’t — if he didn’t say that why — we got it — those — the rest of your argument but I thought the lieutenant said that — I think the — one of these questions asked of Lieutenant Wakeley, “When was he booked?

“He wasn’t booked.

He was booked for investigation.

That is an open charge after the people picked him out of the lineup.”

“This book for investigation is what you call a small book down there.”

Answer: “That is right.”

Earl Warren:

Question: “And when a person is booked for investigation, are they allowed to make any telephone calls, whatsoever?”

Answer: “No.”

“Are they allowed to have any contact with the outside world?”

Answer: “No, we don’t allow them to use the phone to call out, if some relative wants to contact the lawyer that is their privilege.”

Question: “That is assuming the relative knew that the party was in custody.”

“That is right.”

George A. Kain:

Yes, Your Honor.

And that coupled with the testimony of Lieutenant Cockburn to the effect that a lawyer could see an accused.

Earl Warren:

I don’t — that what?

George A. Kain:

That a lawyer could see an accused even though he was on the small book if he knew he was in jail.

I feel that the answer of Lieutenant Wakeley if somewhere he wants to contact — if some relative wants to contact a lawyer, that’s their privilege.

There wouldn’t be much sense in making that statement.I contend if the lawyer couldn’t do his job once he’d been contacted.

And Lieutenant Cock — or Detective Cockburn testified that a lawyer could, under that rule, visit with an accused booked on the so-called small book or held for investigation only.

Tom C. Clark:

What page is that?

George A. Kain:

The —

Tom C. Clark:

(Inaudible)

That’s alright, I’ll find it.

George A. Kain:

I believe it’s on 69, Your Honor.

Tom C. Clark:

Thank you.

George A. Kain:

At that — on that page it says —

Tom C. Clark:

Well, I see it.

I do know what the — attorney does come to see an individual being held, that is a driving privilege.

George A. Kain:

I — I’ve compared the facts in this case even though at first blush they seem extremely vicious with two cases that were decided by this Court solely on the basis of age and I’d like briefly to refer to the facts in those two cases.

I know that each case determines — rest upon its own facts but I feel that there is such a divergence in the facts between these cases that they’re worthy of mention.

The first is Haley versus Ohio, 332 U.S. 596.

In that case, the petitioner was 15 years old contrasted to Mr. Haynes’ age of 25 to 30.

He was questioned for five hours and this questioning didn’t start until midnight.

The five or six policemen questioned him in relays.

He denied implication in the crime until he was shown alleged confessions of coconspirators.

On the other hand, Petitioner Haynes admitted from the very inception that he was the guilty party.

George A. Kain:

The petition — Mr. Haley, the young man, was told that his confession was voluntary and he was told that no promises have been made.

He was not asked this question as was petitioner, Mr. Haynes.

A lawyer in the Haley case actually tried to see this young boy twice and was turned away.

We don’t have that situation in the Haynes’ case.

His mother wasn’t permitted to see him for five days.

He had no court appearance for three days after the confession was signed.

And there was some evidence of physical abuse in that case without citing the law that this Court set forth had held that this case depended basically upon the tender years of the petitioner.

And this Court held that what transpired would make — make this pass for careful inquiry if a mature man were involved.

It then went on the hold because this was a mere child.

The record should be very carefully scrutinized.

Referring to the nighttime interrogation from midnight to 5 a.m. by relays by police officers, the Court held in part, we cannot believe that a lad of tender years is a match for the police in such a contest.

In Gallegos versus Colorado, a recent case cited by this Court, the petitioner was only 14 years of age.

His formal confession was signed five days after his arrest.

He’d been held incommunicado all of this time.

His mother actually sought to see him.

She actually went to see him and was refused.

This Court, citing the Haley case, held that the fact that the petitioner was only 14 years of age, puts this case on the same footing as Haley versus Ohio.

They held in part, we deal with the person who is not equal to the police in knowledge and understanding.

In that language, in those two cases, I feel is the — the crux of the situation here because I submit that the petitioner, Raymond Haynes, was very equal to the police in knowledge and understanding.

In the Gallegos — the case of Gallegos versus Colorado, this Court held that the young man, 14 years of age, cannot be compared with an adult in full position of his senses and knowledgeable of the consequences of his admissions.

And therefore, even though Mr. Gallegos confessed immediately upon his arrest, they held it because he didn’t know what his constitutional rights were, that this immediate confession shouldn’t be considered.

But in this case, Mr. Haynes, I submit, had the adequate edu — as adequate an education as Mr.Crooker did in the case of Crooker versus California.

Mr. Crooker had a college education and some law school training.

I asked you to consider the conduct of a law — a freshman in law school when detained by the police and then consider a man in the position of Mr. Haynes when detained.

A man who had been convicted of, I believe, six crimes, five of them serious crimes, three of them appeared to be felonies, one of them was armed robbery, the facts indicated in this case, he had committed another armed robbery.

He’d been on parole, I think, the record said for some two years is that — is as indicated in the decision of the Washington State Supreme Court with no disrespect, they held this man was not a lamb.

I feel that under the facts, he was as adequately equipped to deal with the police as Mr. Crooker was in the case of Crooker versus California.

John M. Harlan II:

Mr. Kain, I wanted to check something.

Am I right in thinking that no exceptions to the judges’ charge were made on behalf of the defendant?

George A. Kain:

Your Honor, I read the record again last night and I’m not prepared to answer that.

John M. Harlan II:

Well, the reason I asked that is because on 132, the only exception I see is made on behalf of the State and I wonder if that is something.

George A. Kain:

Well, Your Honor, there is nothing in the printed record indicating that any exceptions were taken by the defense.

Whether there were exceptions taken in the trial court, I am not prepared to say one way or the other.

I don’t recall.

John M. Harlan II:

The other thing I wanted to ask you, are the summations of counsel to the jury — the arguments of counsel to the jury included — they’re not included in the printed record but are they — were they transcribed?

George A. Kain:

I’m not able to say that, Your Honor.

I didn’t try that case.

Sometimes they are transcribed if it’s an important case where a counsel requests that they’d be transcribed in cases which are a matter of course.

I can’t say in this case.

Continuing, Your Honor, I — I submit that the liberal consideration given to the petitioners in Haley and in Gallegos versus Colorado not be given to this petitioner because the facts, they were not on the same footing.

The facts here are basically boiled down to this.

What — I suppose some people would call a hardened criminal was told that you can’t call your wife, not an attorney, but you can’t call your wife until you’ve been booked.

I was only held 17 to 19 hours before an appearance and he signed a written confession after 16 hours.

Now, the question is, was this —

Earl Warren:

Did he also say — first call — ask for an attorney?Asked if he could phone an attorney?I thought he first asked — said he asked for — in contact with an attorney and then later he just asked for his wife and he testified that after awhile he thought it over and concluded that he didn’t want his wife perhaps to get a lawyer or him get another one and then have two lawyers settled on him.

George A. Kain:

Yes, sir.

I believe that he did say, I didn’t — that he did testify that he had asked some police officers for a lawyer.

Earl Warren:

Yes, that’s what I thought.

Hugo L. Black:

You joined issue with the statement of a dissent on page 150, do you not?

Had the Court said that — the judge said that the appellant was allowed to communicate with anyone not — were not allowed to communicate with anyone outside despite his repeated request to do so.

And the appellant’s wife had telephoned at city jail where he was incarcerated to refuse any information at that time except the fact that he was being held.

The following day, decided it, she called at the jail in the futile attempt to see him not successful until Thursday, December 26, one full week after the arrest.

Do you think the record does not bear that out?

George A. Kain:

That — my contention is, Your Honor, that their facts were actually disputed.

The judges of the Supreme Court of the State of Washington didn’t really differ on the law to any great extent, they differed on the facts.

Half of them or five of them took one version and four of them took the other version.

The judge who wrote this portion of the dissent took a version which, in effect, favored the petitioner, Haynes.

My contention is that the facts were in dispute on every material issue except those, of course that have been conceded before this Court, that the trial court and the jury decided those facts against Haynes, and of course, he was an impeached witness.

They apparently didn’t believe what he had to say and they decided those facts against him.

Hugo L. Black:

Do you also join the issue with the statement that during the time he was being held, he begged for the opportunity of talking to the prosecutor?

George A. Kain:

I concede that when the written confession was dictated, he did ask — I don’t say that he begged but I say that he asked to see the prosecutor, for what reason I cannot say.

The petitioners have assumed the reason, I’m not — I can’t say why he made that request.

To touch briefly upon what has been charged in the petitioner’s supplemental brief as an unlawful arrest in the consequent, illegal seizure of oral declarations from the accused, I briefly state that our position is this.

That first of all, this attack was raised for the first time not in the trial court, not in the State Supreme Court, not in the petition for certiorari, not in the petitioner’s brief on the merits, but for the first time by the petitioner’s supplemental brief filed before this Court.

There were no objections or motions made before the trial court on this matter.

The Supreme Court of the State of Washington was not permitted to consider it, whether or not the arrest was unlawful, whether the admissions were illegally seized under the authority cited in the respondent’s reply brief.

I submit that that matter is not here for consideration at this time.

Assuming that an objection was made, it was not properly preserved according to the state practice which requires assignments of error in the briefs and actual argument in the brief on the point alleged to be error under authority of Beck versus Washington, 369 U.S. 541.

I submit that an illegal arrest and search and seizure of oral declarations is not an enlargement of an argument made in the state court system that was discussed in the case of Wilson versus Crooker.

Now assuming, just for the purpose of argument, that the error had been preserved the facts conclusively show that the arrest was lawful.

There was a description of the guilty party.

A policeman testified that the petitioner was stopped but he didn’t quite fit the description.

The petitioner himself says that when they stopped him, they asked him about another man, “Did you see somebody go by?”

Or words to that effect.

He was released.

At that point he was released.

He walked up the sidewalk of a house.

The policeman waited, he returned, got back in the car.

The policeman was still seated in the patrol car apparently for time he walked up.

He surrendered.

He said, “You’ve got me, let’s go.”

When he talked to Lieutenant Wakeley, Lieutenant Wakeley testified that he said, he might as well give up.

So he told them he was the man they were looking for.

That’s what Petitioner Haynes told Lieutenant Wakeley about the surrender.

And in his written confession, he said, “I gave up the ghost.”

The meaning of that is pretty obvious.

“I gave up the ghost”, and told him, “I might as well ride downtown with him.”

The petitioner seeks to apply the doctrine of Wong Sun versus the United States to this situation.

I feel that the facts are a great deal different in Wong Sun where doors were broken down on partial information regarding assumed possession of contraband or narcotics.

In this particular case, we have to assume that the arrest was illegal.

George A. Kain:

I submit that the arrest was not illegal but the petitioner surrendered.

When he surrendered and at that moment, he was arrested not before because he was merely questioned.

He says, the petitioner himself says he was questioned as to whether somebody else might have gone by or run by or been in the area.

So when he was questioned at that moment or when he admitted at that moment that he gave up, he then was taken into custody.

Thank you.

Earl Warren:

Mr. Speiser.

Lawrence Speiser:

Mr. Chief Justice, may it please the Court.

We have in this case a number of factors that the Court has considered in the past in other cases.

The difficulty with applying a subjective rule to determine whether there was a voluntary confession or a coerced confession is highlighted by this case just in the fact that the two brothers, one of whom had no criminal experience before and was belligerent as testified by the police officer refused to confess at first.

And this man who had had a prior criminal experience at some length, confessed initially and then confessed before his brother.

Therefore, I think the subjective rule or the subjective factor is not a good basis in which to determine the inadmissibility of a confession.

By looking at the objective facts as to what the police did and whether their methods were impermissible under the standards of a civilized society, I think will give a standard here, a more exact standard, in determining the admissibility of the confession.

Here, the police did hold the man incommunicado and they did it for a purpose.

And the purpose was to nail the case down.

And they continued to attempt to nail the case down not only after getting the signed confession in the interrogation room of the police department but there was also subsequent attempt to get succeeding confessions signed before the prosecutor.

The police admit they have this practice.

I think that — to suggest that the man could have made phone calls before he was placed on small book would — is totally unrealistic.

I think the small book is merely an expression of police department policy but as far as police department practice is concerned, it’s fairly evident that this man could not have made a phone call out anytime until he was booked.

Now, it’s been suggested that at first, that he could — that they were awaiting to present this to the prosecutor.

However, it’s to be noted that he wasn’t brought before a magistrate until four o’clock in the afternoon.

Arthur J. Goldberg:

As a matter of fact, doesn’t the record show that the asked to see the prosecutor and he was not given that (Inaudible)

Lawrence Speiser:

Yes, and this appears in the written confession itself.

There are some things we don’t know about what was said in the interrogation by this man by the police officer since there was no secretary present and this was not taken down, but in the written confession itself, there was a request by him to see the prosecutor.

Now, Spokane is like most that is I assumed that the magistrate was available at ten o’clock or nine o’clock in the morning, the following morning after his arrest.

Nevertheless, he was not brought before a magistrate at that time when he could have been informed of his rights.

He could have at that point, attempted to contact an attorney perhaps although we can’t tell for sure from this record whether this was possible simply because of the fact that he wasn’t able to — as he can testify to contact an attorney for or to contact his wife to contact an attorney for several days after the confession.

Arthur J. Goldberg:

Would you state Mr. Speiser what your (Inaudible)

Lawrence Speiser:

Well, I think it can be done in several fashions, Mr. Justice Goldberg.

It can be done in the way the Court has looked at the cases in the past in looking at a totality of circumstances and seeing whether the totality adds up to some impermissible method.

This would involve looking at the factors of the incommunicado detention.

Lawrence Speiser:

It would look at the factors of not bringing before a magistrate.

It would look at the factor of not advising the individual of his constitutional rights.

It would look at the factor of whether he had counsel to advice him, if he requests a counsel at any time before signing a confession.

I also urge the Court that it could be done on anyone of these factors.

There was a statement in the case of Ward versus Texas which indicates this but as yet the Court has not made any ruling on that one score.

And the cases that have come up to the Court in which the particular emphasis has been on the — that facet of the Due Process Clause involving the right to counsel in Cicenia versus Lagay and Crooker versus California.

The Court has not been — was not willing to rely on that one factor alone which was the only factor that raised this constitutional issue before the Court.

But those cases, perhaps, can be distinguishable although in answer to Mr. Justice Stewart yesterday, I urge that they’d be overruled.

They can be distinguished, I believe, on the grounds that in both cases, in Crooker, there was evident in the record that he had been advised of his right to refuse to answer questions and that the statements would be used against him.

Also, there was that very unique circumstance that he had attended law school and presumably therefore knew what his rights were.

In Cicenia, there was a similar awareness of rights and there was a contact with an attorney, with an assumption that an attorney had, in fact, consulted with him prior to his surrender at the police station.

Now, in both of those cases, it seem to me that one of these facets that I’ve mentioned has had been satisfied as far as the courts are concerned.

And I suggest that this is a distinction in — as far as those two cases are concerned.

There’s nothing in the record here to indicate that this man had an opportunity to consult with an attorney, to talk with an attorney before he confessed.

Arthur J. Goldberg:

Now, what you’re saying is exactly (Inaudible) the instruction to be given by a court or magistrate (Inaudible)

Lawrence Speiser:

I — I agree.Unfortunately, there was no objection to this instruction, as far I could tell from the lower court record, however, I’d like to point out in the case of Terminiello versus Chicago, the Court decided that case based on a faulty instruction that was not objected to in the trial court, was not considered in the state courts before it reached this Court.

John M. Harlan II:

Well then, the instruction didn’t stop there.

The Court went on to say, “If you find from the evidence in this case that any officer having custody of either defendant in this case denied him communication with his friends or an attorney in violation of the above statute, then I instruct that you may consider such denial in connection with the voluntariness of any statement made.”

Now, that instruction certainly conforms to the law up to date in this Court.

Lawrence Speiser:

And I — and I am suggesting that the — that position I have taken in response to Mr. Justice Goldberg’s question is slightly different.

I —

John M. Harlan II:

You’re asking us to substitute at least in some facets a courtesy test on voluntariness rather than the test that up to now has prevailed.

Lawrence Speiser:

I would even suggest eliminating the word “voluntary” as a needlessly confusing term to define to determine whether confessions should be admitted which have been obtained by impermissible methods in line with civilized society standards.

John M. Harlan II:

In other words, to put it in another way what you’d like to see is the prophylactic rule that is applied in the federal courts under our supervisory powers as represented in one facet by the Mallory rule, you’d like to see something of that kind extend to the States.

Lawrence Speiser:

Yes.

Obviously the prophylaxis of the — of the exclusionary principle is something I’m urging before the State.

It has been adopted by Mapp versus Ohio in applying as far as one facet of the Fourteenth Amendment’s Due Process Clause illegally — unreasonably search and seizure evidence —

John M. Harlan II:

Well, I just heard what its (Inaudible) position, and I understand that.

Hugo L. Black:

Well, that wasn’t based on the idea, was it, that if you — that we had to sit and determine whether or not the conduct opposed — violated civilized standards.

Lawrence Speiser:

No, there are — there were — there are several factors, it seems to me, in the adoption of the exclusionary rule which have been — were referred to in Mapp versus Ohio and in other cases in which they come up.

Lawrence Speiser:

There has — it has been suggested, it has a deterrent effect on the police and this has been mentioned in determining whether the exclusionary rule had a constitutional basis.

But in addition to that, there was the factor of whether the courts are going to become part of governmental lawlessness that the integrity of the judicial procedure was at stake and for this Court to uphold the utilization in a trial of evidence obtained by unconstitutional methods —

Hugo L. Black:

That is quite different.

Lawrence Speiser:

Yes.

I — I’m suggesting that these two reasons have been both been stressed and I recognized that some justices prefer one reason rather than the other but they have — are both apparently appear — appeared in the cases that have discussed the reason for the exclusionary rule.

Hugo L. Black:

Of course, if we would hold as a general rule as we could upset any state law, any state action at anytime on our basis of whether or not it violated civilized standards, there would be some question about the lawlessness or the lawfulness of our conduct, would there not?

Lawrence Speiser:

Yes.

And I — I’m not suggesting that the Court ignored the judicial restraint which is —

Hugo L. Black:

I’m not talking about judicial restraint.

I’m talking about interpretation whether you — interpreting the Constitution according to this language or introducing a new factor rather what the Court thinks it violates civilized standards.

Lawrence Speiser:

Well, the definiteness of that has been subject to too much criticism and an easy answer then would be the civilized standards or whether there’s been a violation of the Constitution in some fashion —

Hugo L. Black:

That would — suits to be better.

Lawrence Speiser:

I’m always willing to try to suit you, Justice Black.

The exclusionary rule has had a benefit on police lawlessness.

There — were refusing cries about the Mallory-McNabb rule and I realized that that was based on the supervisorial capacity of the Court over the — over the federal courts.

But in spite of the cries that the adoption of McNabb-Mallory rule would prevent efficient law enforcement, efficient law enforcement has gone on within the District of Columbia.

Oliver Gasch who was formally the U.S. Attorney here indicated that that was only an issue in approximately 5% of the cases and it has had some effect on the police practices here to the extent that arrests for investigation are to be ended here in the District of Columbia after a thorough study by indicating that they were unconstitutional.

The effect of Mapp versus Ohio is completely still too early to say, however, the benefit of experience in the States that have the exclusionary rule indicated that it had a beneficial effect.

But we have had, in the courts since 1936, a series of so-called coerced confession cases in which they have been earmarked by arrest on suspicion, incommunicado interrogation which involves refusal to permit contact with friends and relatives, no informing of rights to silence in the counsel, delay in bringing before magistrates and a denial of bail and a denial of writ of habeas corpus during that interim period.

The governments and the states have in effect become lawbreakers and there’s a very intimate relationship between the willingness of the people to observe laws and their cynicism which will develop if they feel that the Government itself is a lawbreaker.

Justice Brandeis in his dissenting opinion in Olmstead, it seems to me, made the most eloquent statement as to the value of this.

To declare that in the administration of the criminal law, the end justifies the means.

To declare that the Government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution.

Against that pernicious doctrine, this Court should resolutely set its base.