U.S. Supreme Court Escobedo v. Illinois, 378
U.S. 478 (1964) Escobedo v. Illinois No. 615 Argued April 29, 1964 Decided June 22, 1964 378
U.S. 478 CERTIORARI TO THE SUPREME COURT OF
ILLINOIS Syllabus Petitioner, a 22-year-old of Mexican extraction, was arrested
with his sister and taken to police headquarters for interrogation
in connection with the fatal shooting, about 11 days before, of his
brother-in-law. He had been arrested shortly after the shooting,
but had made no statement, and was released after his lawyer
obtained a writ of habeas corpus from a state court. Petitioner
made several requests to see his lawyer, who, though present in the
building, and despite persistent efforts, was refused access to his
client. Petitioner was not advised by the police of his right to
remain silent and, after persistent questioning by the police, made
a damaging statement to an Assistant State's Attorney which was
admitted at the trial. Convicted of murder, he appealed to the
State Supreme Court, which affirmed the conviction. Held: Under the circumstances of this case, where a
police investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect in
police custody who has been refused an opportunity to consult with
his counsel and who has not been warned of his constitutional right
to keep silent, the accused has been denied the assistance of
counsel in violation of the Sixth and Fourteenth Amendments, and no
statement extracted by the police during the interrogation may be
used against him at a trial. Crooker v. California, 357 U. S. 433 , and Cicenia v. Lagay, 357 U. S. 504 ,
distinguished, and, to the extent that they may be inconsistent
with the instant case, they are not controlling. Pp. 378 U. S.
479 -492. 28 Ill. 2d
41 , 190 N.E.2d
825 , reversed and remanded. Page 378 U. S. 479 MR. JUSTICE GOLDBERG delivered the opinion of the Court.

															The critical question in this case is whether, under the
circumstances, the refusal by the police to honor petitioner's
request to consult with his lawyer during the course of an
interrogation constitutes a denial of "the Assistance of Counsel"
in violation of the Sixth Amendment to the Constitution as "made
obligatory upon the States by the Fourteenth Amendment," Gideon
v. Wainwright, 372 U. S. 335 , 372 U. S. 342 ,
and thereby renders inadmissible in a state criminal trial any
incriminating statement elicited by the police during the
interrogation.

															On the night of January 19, 1960, petitioner's brother-in-law
was fatally shot. In the early hours of the next morning, at 2:30
a.m., petitioner was arrested without a warrant and interrogated.
Petitioner made no statement to the police, and was released at 5
that afternoon pursuant to a state court writ of habeas corpus
obtained by Mr. Warren Wolfson, a lawyer who had been retained by
petitioner.

															On January 30, Benedict DiGerlando, who was then in police
custody and who was later indicted for the murder along with
petitioner, told the police that petitioner had fired the fatal
shots. Between 8 and 9 that evening, petitioner and his sister, the
widow of the deceased, were arrested and taken to police
headquarters. En route to the police station, the police "had
handcuffed the defendant behind his back," and "one of the
arresting officers told defendant that DiGerlando had named him as
the one who shot" the deceased. Petitioner testified, without
contradiction, that the "detectives said they had us pretty well,
up pretty tight, and we might as well admit to this crime," and
that he replied, "I am sorry, but I would like to have advice from
my lawyer." A police officer testified that, although petitioner
was not formally charged, "he was in custody" and "couldn't walk
out the door." Page 378 U. S. 480 Shortly after petitioner reached police headquarters, his
retained lawyer arrived. The lawyer described the ensuing events in
the following terms:

															"On that day, I received a phone call [from 'the mother of
another defendant'] and, pursuant to that phone call, I went to the
Detective Bureau at 11th and State. The first person I talked to
was the Sergeant on duty at the Bureau Desk, Sergeant Pidgeon. I
asked Sergeant Pidgeon for permission to speak to my client, Danny
Escobedo. . . . Sergeant Pidgeon made a call to the Bureau lockup
and informed me that the boy had been taken from the lockup to the
Homicide Bureau. This was between 9:30 and 10:00 in the evening.
Before I went anywhere, he called the Homicide Bureau and told them
there was an attorney waiting to see Escobedo. He told me I could
not see him. Then I went upstairs to the Homicide Bureau. There
were several Homicide Detectives around, and I talked to them. I
identified myself as Escobedo's attorney and asked permission to
see him. They said I could not. . . . The police officer told me to
see Chief Flynn, who was on duty. I identified myself to Chief
Flynn and asked permission to see my client. He said I could not. .
. . I think it was approximately 11:00 o'clock. He said I couldn't
see him because they hadn't completed questioning. . . . [F]or a
second or two, I spotted him in an office in the Homicide Bureau.
The door was open, and I could see through the office. . . . I
waved to him and he waved back, and then the door was closed by one
of the officers at Homicide. [ Footnote 1 ] There were four or five officers milling Page 378 U. S. 481 around the Homicide Detail that night. As to whether I talked to
Captain Flynn any later that day, I waited around for another hour
or two and went back again and renewed by [ sic ] request to
see my client. He again told me I could not. . . . I filed an
official complaint with Commissioner Phelan of the Chicago Police
Department. I had a conversation with every police officer I could
find. I was told at Homicide that I couldn't see him and I would
have to get a writ of habeas corpus. I left the Homicide Bureau and
from the Detective Bureau at 11th and State at approximately 1:00
A.M. [Sunday morning]. I had no opportunity to talk to my client
that night. I quoted to Captain Flynn the Section of the Criminal
Code which allows an attorney the right to see his client.
[ Footnote 2 ]"

															Petitioner testified that, during the course of the
interrogation, he repeatedly asked to speak to his lawyer, and that
the police said that his lawyer "didn't want to see" him. The
testimony of the police officers confirmed these accounts in
substantial detail.

															Notwithstanding repeated requests by each, petitioner and his
retained lawyer were afforded no opportunity to consult during the
course of the entire interrogation. At one point, as previously
noted, petitioner and his attorney came into each other's view for
a few moments, but the attorney was quickly ushered away.
Petitioner testified "that he heard a detective telling the
attorney the latter would not be allowed to talk to [him] until
they Page 378 U. S.
482 were done,'" and that he heard the attorney being refused
permission to remain in the adjoining room. A police officer
testified that he had told the lawyer that he could not see
petitioner until "we were through interrogating" him. There is testimony by the police that, during the interrogation,
petitioner, a 22-year-old of Mexican extraction with no record of
previous experience with the police, "was handcuffed" [ Footnote 3 ] in a standing position and
that he "was nervous, he had circles under his eyes, and he was
upset" and was "agitated" because "he had not slept well in over a
week."

															It is undisputed that, during the course of the interrogation,
Officer Montejano, who "grew up" in petitioner's neighborhood, who
knew his family, and who uses "Spanish language in [his] police
work," conferred alone with petitioner "for about a quarter of an
hour. . . ." Petitioner testified that the officer said to him "in
Spanish that my sister and I could go home if I pinned it on
Benedict DiGerlando," that

															"he would see to it that we would go home and be held only as
witnesses, if anything, if we had made a statement against
DiGerlando . . . that we would be able to go home that night."

															Petitioner testified that he made the statement in issue because
of this assurance. Officer Montejano denied offering any such
assurance.

															A police officer testified that, during the interrogation, the
following occurred:

															"I informed him of what DiGerlando told me, and, when I did, he
told me that DiGerlando was [lying], and I said, 'Would you care to
tell DiGerlando that?' and he said, 'Yes, I will.' So I Page 378 U. S. 483 brought . . . Escobedo in and he confronted DiGerlando and he
told him that he was lying and said, 'I didn't shoot Manuel, you
did it.'"

															In this way, petitioner for the first time admitted to some
knowledge of the crime. After that, he made additional statements
further implicating himself in the murder plot. At this point, an
Assistant State's Attorney, Theodore J. Cooper, was summoned "to
take" a statement. Mr. Cooper, an experienced lawyer who was
assigned to the Homicide Division to take "statements from some
defendants and some prisoners that they had in custody," "took"
petitioner's statement by asking carefully framed questions
apparently designed to assure the admissibility into evidence of
the resulting answers. Mr. Cooper testified that he did not advise
petitioner of his constitutional rights, and it is undisputed that
no one during the course of the interrogation so advised him.

															Petitioner moved both before and during trial to suppress the
incriminating statement, but the motions were denied. Petitioner
was convicted of murder, and he appealed the conviction.

															The Supreme Court of Illinois, in its original opinion of
February 1, 1963, held the statement inadmissible and reversed the
conviction. The court said:

															"[I]t seems manifest to us, from the undisputed evidence and the
circumstances surrounding defendant at the time of his statement
and shortly prior thereto, that the defendant understood he would
be permitted to go home if he gave the statement, and would be
granted an immunity from prosecution." Compare Lynumn v. Illinois, 372 U.
S. 528 . The State petitioned for, and the court granted,
rehearing. The court then affirmed the conviction. It said:

															"[T]he Page 378 U. S. 484 officer denied making the promise and the trier of fact believed
him. We find no reason for disturbing the trial court's finding
that the confession was voluntary. [ Footnote 4 ]" 28 Ill. 2d
41 , 45-46, 190 N.E.2d
825 , 827. The court also held, on the authority of this Court's
decisions in Crooker v. California, 357 U.
S. 433 , and Cicenia v. Lagay, 357 U.
S. 504 , that the confession was admissible even though
"it was obtained after he had requested the assistance of counsel,
which request was denied." 28 Ill. 2d at 46, 190 N.E.2d at 827. We
granted a writ of certiorari to consider whether the petitioner's
statement was constitutionally admissible at his trial. 375 U.S.
902. We conclude, for the reasons stated below, that it was not
and, accordingly, we reverse the judgment of conviction. In Massiah v. United States, 377 U.
S. 201 , this Court observed that

															"a Constitution which guarantees a defendant the aid of counsel
at . . . trial could surely vouchsafe no less to an indicted
defendant under interrogation by the police in a completely
extrajudicial proceeding. Anything less . . . might deny a
defendant 'effective representation by counsel at the only stage
when Page 378 U. S. 485 legal aid and advice would help him.'" Id. at 377 U. S. 204 ,
quoting DOUGLAS, J., concurring in Spano v. New York, 360 U. S. 315 , 360 U. S.
326 .

															The interrogation here was conducted before petitioner was
formally indicted. But in the context of this case, that fact
should make no difference. When petitioner requested, and was
denied, an opportunity to consult with his lawyer, the
investigation had ceased to be a general investigation of "an
unsolved crime." Spano v New York, 360 U.
S. 315 , 360 U. S. 327 (STEWART, J., concurring). Petitioner had become the accused, and
the purpose of the interrogation was to "get him" to confess his
guilt despite his constitutional right not to do so. At the time of
his arrest and throughout the course of the interrogation, the
police told petitioner that they had convincing evidence that he
had fired the fatal shots. Without informing him of his absolute
right to remain silent in the face of this accusation, the police
urged him to make a statement. [ Footnote 5 ] As this Court observed many years ago:

															"It cannot be doubted that, placed in the position in which the
accused was when the statement was made to him that the other
suspected person had charged him with crime, the result was to
produce upon his mind the fear that, if he remained silent, it
would be considered an admission of guilt, and therefore render
certain his being committed for trial as the guilty person, and it
cannot be conceived that the converse impression would not also
have naturally Page 378 U. S. 486 arisen, that, by denying there was hope of removing the
suspicion from himself." Bram v. United States, 168 U.
S. 532 , 168 U. S. 562 .
Petitioner, a layman, was undoubtedly unaware that, under Illinois
law, an admission of "mere" complicity in the murder plot was
legally as damaging as an admission of firing of the fatal shots. Illinois v. Escobedo, 28 Ill. 2d
41 , 190 N.E.2d
825 . The "guiding hand of counsel" was essential to advise
petitioner of his rights in this delicate situation. Powell v.
Alabama, 287 U. S. 45 , 287 U. S. 69 .
This was the "stage when legal aid and advice" were most critical
to petitioner. Massiah v. United States, supra, at 377 U. S. 204 .
It was a stage surely as critical as was the arraignment in Hamilton v. Alabama, 368 U. S. 52 , and
the preliminary hearing in White v. Maryland, 373 U. S.
59 . What happened at this interrogation could certainly
"affect the whole trial," Hamilton v. Alabama, supra, at 368 U. S. 54 ,
since rights "may be as irretrievably lost, if not then and there
asserted, as they are when an accused represented by counsel waives
a right for strategic purposes." Ibid. It would exalt form
over substance to make the right to counsel, under these
circumstances, depend on whether, at the time of the interrogation,
the authorities had secured a formal indictment. Petitioner had,
for all practical purposes, already been charged with murder.

															The New York Court of Appeals, whose decisions this Court cited
with approval in Massiah, 377 U.
S. 201 , at 377 U. S. 205 ,
has recently recognized that, under circumstances such as those
here, no meaningful distinction can be drawn between interrogation
of an accused before and after formal indictment. In People v.
Donovan, 13 N.Y.2d 148, 193 N.E.2d 628, that court, in an
opinion by Judge Fuld, held that a

															"confession taken from a defendant, during a period of detention
[prior to indictment], after his attorney had requested and been
denied access Page 378 U. S. 487 to him"

															could not be used against him in a criminal trial. [ Footnote 6 ] Id. at 151, 193
N.E.2d at 629. The court observed that it

															"would be highly incongruous if our system of justice permitted
the district attorney, the lawyer representing the State, to
extract a confession from the accused while his own lawyer, seeking
to speak with him, was kept from him by the police." Id. at 152, 193 N.E.2d at 629. [ Footnote 7 ]

															In Gideon v. Wainwright, 372 U.
S. 335 , we held that every person accused of a crime,
whether state or federal, is entitled to a lawyer at trial.
[ Footnote 8 ] The rule sought by
the State here, however, would make the trial no more than an
appeal from the interrogation, and the

															"right to use counsel at the formal trial [would be] a very
hollow thing [if], for all practical purposes, the conviction is
already assured by pretrial examination." In re Groban , 352 U.S. Page 378 U. S. 488 330, 352 U. S. 344 (BLACK, J., dissenting). [ Footnote
9 ]

															"One can imagine a cynical prosecutor saying: 'Let them have the
most illustrious counsel now. They can't escape the noose. There is
nothing that counsel can do for them at the trial.'" Ex parte Sullivan, 107 F.
Supp. 514 , 517-518.

															It is argued that, if the right to counsel is afforded prior to
indictment, the number of confessions obtained by the police will
diminish significantly, because most confessions are obtained
during the period between arrest and indictment, [ Footnote 10 ] and "any lawyer worth his salt
will tell the suspect in no uncertain terms to make no statement to
police under any circumstances." Watts v. Indiana, 338 U. S. 49 , 338 U. S. 59 (Jackson, J., concurring in part and dissenting in part). This
argument, of course, cuts two ways. The fact that many confessions
are obtained during this period points up its critical nature as a
"stage when legal aid and advice" are surely needed. Massiah v.
United States, supra, at 377 U. S. 204 ; Hamilton v. Alabama, supra; White v. Maryland, supra. The
right to counsel would indeed be hollow if it began at a period
when few confessions were obtained. There is necessarily a direct
relationship between the importance of a stage to the police in
their quest for a confession and the criticalness of that stage to
the accused in his need for legal advice. Our Constitution, unlike
some others, strikes the balance in favor of the right of the
accused to be advised by his lawyer of his privilege against
self-incrimination. See Note, 73 Yale L.J. 1000, 1048-1051
(1964).

															We have learned the lesson of history, ancient and modern, that
a system of criminal law enforcement Page 378 U. S. 489 which comes to depend on the "confession" will, in the long run,
be less reliable [ Footnote
11 ] and more subject to abuses [ Footnote 12 ] than a system which depends on extrinsic
evidence independently secured through skillful investigation. As
Dean Wigmore so wisely said:

															" [A]ny system of administration which permits the
prosecution to trust habitually to compulsory self-disclosure as a
source of proof must itself suffer morally thereby. The
inclination develops to rely mainly upon such evidence, and to be
satisfied with an incomplete investigation of the other sources.
The exercise of the power to extract answers begets a forgetfulness
of the just limitations of that power. The simple and peaceful
process of questioning breeds a readiness to resort to bullying and
to physical force and torture. If there is a right to an answer,
there soon seems to be a right to the expected answer -- that is,
to a confession of guilt. Thus, the legitimate use grows into the
unjust abuse; ultimately, the innocent are jeopardized by the
encroachments of a bad system. Such seems to have been the course
of experience in those legal systems where the privilege was not
recognized."

															8 Wigmore, Evidence (3d ed.1940), 309. (Emphasis in
original.) Page 378 U. S. 490 This Court also has recognized that

															"history amply shows that confessions have often been extorted
to save law enforcement officials the trouble and effort of
obtaining valid and independent evidence. . . ." Haynes v. Washington, 373 U. S. 503 , 373 U. S.
519 .

															We have also learned the companion lesson of history that no
system of criminal justice can, or should, survive if it comes to
depend for its continued effectiveness on the citizens' abdication
through unawareness of their constitutional rights. No system worth
preserving should have to fear that, if an accused is permitted to
consult with a lawyer, he will become aware of, and exercise, these
rights. [ Footnote 13 ] If the
exercise of constitutional rights will thwart the effectiveness of
a system of law enforcement, then there is something very wrong
with that system. [ Footnote
14 ]

															We hold, therefore, that where, as here, the investigation is no
longer a general inquiry into an unsolved crime, but has begun to
focus on a particular suspect, the suspect Page 378 U. S. 491 has been taken into police custody, the police carry out a
process of interrogations that lends itself to eliciting
incriminating statements, the suspect has requested and been denied
an opportunity to consult with his lawyer, and the police have not
effectively warned him of his absolute constitutional right to
remain silent, the accused has been denied "the Assistance of
Counsel" in violation of the Sixth Amendment to the Constitution as
"made obligatory upon the States by the Fourteenth Amendment," Gideon v. Wainwright, 372 U.S. at 372 U. S. 342 ,
and that no statement elicited by the police during the
interrogation may be used against him at a criminal trial. Crooker v. California, 357 U.
S. 433 , does not compel a contrary result. In that case,
the Court merely rejected the absolute rule sought by petitioner,
that

															"every state denial of a request to contact counsel [is] an
infringement of the constitutional right without regard to the
circumstances of the case. " Id. at 357 U. S. 440 .
(Emphasis in original.) In its place, the following rule was
announced:

															"[S]tate refusal of a request to engage counsel violates due
process not only if the accused is deprived of counsel at trial on
the merits, . . . but also if he is deprived of counsel for any
part of the pretrial proceedings, provided that he is so
prejudiced thereby as to infect his subsequent trial with an
absence of 'that fundamental fairness essential to the very concept
of justice. . . .' The latter determination necessarily depends
upon all the circumstances of the case."

															357 U.S. at 357 U. S.
439 -440. (Emphasis added.) The Court, applying "these
principles" to "the sum total of the circumstances [there] during
the time petitioner was without counsel," id. at 357 U. S. 440 ,
concluded that he had not been fundamentally prejudiced by the
denial of his request for counsel. Among the critical circumstances
which distinguish that case from this one are that the petitioner
there, but not here, was explicitly advised by the police of his
constitutional right to remain silent and Page 378 U. S. 492 not to "say anything" in response to the questions, id. at 357 U. S. 437 ,
and that petitioner there, but not here, was a well educated man
who had studied criminal law while attending law school for a year.
The Court's opinion in Cicenia v. Lagay, 357 U.
S. 504 , decided the same day, merely said that the
"contention that petitioner had a constitutional right to confer
with counsel is disposed of by Crooker v. California. . .
." That case adds nothing, therefore, to Crooker. In any
event, to the extent that Cicenia or Crooker may
be inconsistent with the principles announced today, they are not
to be regarded as controlling. [ Footnote 15 ]

															Nothing we have said today affects the powers of the police to
investigate "an unsolved crime," Spano v. New York, 360 U. S. 315 , 360 U. S. 327 (STEWART, J., concurring), by gathering information from witnesses
and by other "proper investigative efforts." Haynes v.
Washington, 373 U. S. 503 , 373 U. S. 519 .
We hold only that, when the process shifts from investigatory to
accusatory -- when its focus is on the accused and its purpose is
to elicit a confession -- our adversary system begins to operate,
and, under the circumstances here, the accused must be permitted to
consult with his lawyer.

															The judgment of the Illinois Supreme Court is reversed, and the
case remanded for proceedings not inconsistent with this
opinion. Reversed and remanded. [ Footnote 1 ]

															Petitioner testified that this ambiguous gesture "could have
meant most anything," but that he "took it upon [his] own to think
that [the lawyer was telling him] not to say anything," and that
the lawyer "wanted to talk" to him.

															[ Footnote 2 ]

															The statute then in effect provided in pertinent part that:

															"All public officers . . . having the custody of any person . .
. restrained of his liberty for any alleged cause whatever, shall,
except in cases of imminent danger of escape, admit any practicing
attorney . . . whom such person . . . may desire to see or consult.
. . ."

															Ill.Rev.Stat. (1959), c. 38, § 477. Repealed as of Jan. 1, 1964,
by Act approved Aug. 14, 1963, H.B. No. 851.

															[ Footnote 3 ]

															The trial judge justified the handcuffing on the ground that it
"is ordinary police procedure."

															[ Footnote 4 ] Compare Haynes v. Washington, 373 U.
S. 503 , 373 U. S. 515 (decided on the same day as the decision of the Illinois Supreme
Court here), where we said:

															"Our conclusion is in no way foreclosed, as the State contends,
by the fact that the state trial judge or the jury may have reached
a different result on this issue."

															"It is well settled that the duty of constitutional adjudication
resting upon this Court requires that the question whether the Due
Process Clause of the Fourteenth Amendment has been violated by
admission into evidence of a coerced confession be the subject of
an independent determination here, see, e.g., Ashcraft
v. Tennessee, 322 U. S. 143 , 322 U. S.
147 -148; 'we cannot escape the responsibility of making
our own examination of the record,' Spano v. New York, 360 U. S.
315 , 360 U. S. 316 ."

															(Emphasis in original.)

															[ Footnote 5 ]

															Although there is testimony in the record that petitioner and
his lawyer had previously discussed what petitioner should do in
the event of interrogation, there is no evidence that they
discussed what petitioner should, or could, do in the face of a
false accusation that he had fired the fatal bullets.

															[ Footnote 6 ]

															The English Judges' Rules also recognize that a functional,
rather than a formal, test must be applied, and that, under
circumstances such as those here, no special significance should be
attached to formal indictment. The applicable Rule does not permit
the police to question an accused, except in certain extremely
limited situations not relevant here, at any time after the
defendant "has been charged or informed that he my be
prosecuted. " [1964] Crim.L.Rev. 166-170 (emphasis supplied).
Although voluntary statements obtained in violation of these rules
are not automatically excluded from evidence, the judge may, in the
exercise of his discretion, exclude them.

															"Recent cases suggest that perhaps the judges have been
tightening up, [and, almost] inevitably, the effect of the new
Rules will be to stimulate this tendency." Id. at 182.

															[ Footnote 7 ]

															Canon 9 of the American Bar Association's Canon of Professional
Ethics provides that:

															"A lawyer should not in any way communicate upon the subject of
controversy with a party represented by counsel; much less should
he undertake to negotiate or compromise the matter with him, but
should deal only with his counsel. It is incumbent upon the lawyer
most particularly to avoid everything that may tend to mislead a
party not represented by counsel, and he should not undertake to
advise him as to the law." See Broeder, Wong Sun v. United States: A
Study in Faith and Hope, 42 Neb.L.Rev. 483, 599-604.

															[ Footnote 8 ]

															Twenty-two States, including Illinois, urged us so to hold.

															[ Footnote 9 ]

															The Soviet criminal code does not permit a lawyer to be present
during the investigation. The Soviet trial has thus been aptly
described as "an appeal from the pretrial investigation." Feifer,
Justice in Moscow (1964), 86.

															[ Footnote 10 ] See Barrett, Police Practices and the Law -- From
Arrest to Release or Charge, 50 Cal.L.Rev. 11, 43 (1962).

															[ Footnote 11 ] See Committee Print, Subcommittee to Investigate
Administration of the Internal Security Act, Senate Committee on
the Judiciary, 85th Cong., 1st Sess., reporting and analyzing the
proceedings at the XXth Congress of the Communist Party of the
Soviet Union, February 25, 1956, exposing the false confessions
obtained during the Stalin purges of the 1930's. See also
Miller v. United States, 320 F.2d 767, 772-773 (opinion of
Chief Judge Bazelon); Lifton, Thought Reform and the Psychology of
Totalism (1961); Rogge, Why Men Confess (1959); Schein, Coercive
Persuasion (1961).

															[ Footnote 12 ] See Stephen, History of the Criminal Law, quoted in 8
Wigmore, Evidence (3d ed.1940), 312; Report and Recommendations of
the Commissioners' Committee on Police Arrests for Investigation,
District of Columbia (1962).

															[ Footnote 13 ] Cf. Report of Attorney General's Committee on Poverty
and the Administration of Federal Criminal Justice (1963),
10-11:

															"The survival of our system of criminal justice and the values
which it advances depends upon a constant, searching, and creative
questioning of official decisions and assertions of authority at
all stages of the process. . . . Persons [denied access to counsel]
are incapable of providing the challenges that are indispensable to
satisfactory operation of the system. The loss to the interests of
accused individuals, occasioned by these failures, are great and
apparent. It is also clear that a situation in which persons are
required to contest a serious accusation but are denied access to
the tools of contest is offensive to fairness and equity. Beyond
these considerations, however, is the fact that [this situation is]
detrimental to the proper functioning of the system of justice, and
that the loss in vitality of the adversary system thereby
occasioned significantly endangers the basic interests of a free
community."

															[ Footnote 14 ]

															The accused may, of course, intelligently and knowingly waive
his privilege against self-incrimination and his right to counsel
either at a pretrial stage or at the trial. See Johnson v.
Zerbst, 304 U. S. 458 . But
no knowing and intelligent waiver of any constitutional right can
be said to have occurred under the circumstances of this case.

															[ Footnote 15 ]

															The authority of Cicenia v. Lagay, 357 U.
S. 504 , and Crooker v. California, 357 U.
S. 433 , was weakened by the subsequent decisions of this
Court in Hamilton v. Alabama, 368 U. S.
52 , White v. Maryland, 373 U. S.
59 , and Massiah v. United States, 377 U.
S. 201 (as the dissenting opinion in the last-cited case
recognized).

															MR. JUSTICE HARLAN, dissenting.

															I would affirm the judgment of the Supreme Court of Illinois on
the basis of Cicenia v. Lagay, 357 U.
S. 504 , Page 378 U. S. 493 decided by this Court only six years ago. Like my Brother WHITE, post, p. 378 U. S. 495 ,
I think the rule announced today is most ill-conceived, and that it
seriously and unjustifiably fetters perfectly legitimate methods of
criminal law enforcement.

															MR. JUSTICE STEWART, dissenting.

															I think this case is directly controlled by Cicenia v.
Lagay, 357 U. S. 504 , and
I would therefore affirm the judgment. Massiah v. United States, 377 U.
S. 201 , is not in point here. In that case, a federal
grand jury had indicted Massiah. He had retained a lawyer and
entered a formal plea of not guilty. Under our system of federal
justice, an indictment and arraignment are followed by a trial, at
which the Sixth Amendment guarantees the defendant the assistance
of counsel. * But Massiah was
released on bail, and thereafter agents of the Federal Government
deliberately elicited incriminating statements from him in the
absence of his lawyer. We held that the use of these statements
against him at his trial denied him the basic protections of the
Sixth Amendment guarantee. Putting to one side the fact that the
case now before us is not a federal case, the vital fact remains
that this case does not involve the deliberate interrogation of a
defendant after the initiation of judicial proceedings against him.
The Court disregards this basic difference between the present case
and Massiah's, with the bland assertion that "that fact should make
no difference." Ante, p. 378 U. S.
485 .

															It is "that fact," I submit, which makes all the difference.
Under our system of criminal justice, the institution of formal,
meaningful judicial proceedings, by way of indictment, information,
or arraignment, marks the Page 378 U. S. 494 point at which a criminal investigation has ended and adversary
proceedings have commenced. It is at this point that the
constitutional guarantees attach which pertain to a criminal trial.
Among those guarantees are the right to a speedy trial, the right
of confrontation, and the right to trial by jury. Another is the
guarantee of the assistance of counsel. Gideon v.
Wainwright, 372 U. S. 335 ; Hamilton v. Alabama, 368 U. S. 52 ; White v. Maryland, 373 U. S. 59 .

															The confession which the Court today holds inadmissible was a
voluntary one. It was given during the course of a perfectly
legitimate police investigation of an unsolved murder. The Court
says that what happened during this investigation "affected" the
trial. I had always supposed that the whole purpose of a police
investigation of a murder was to "affect" the trial of the
murderer, and that it would be only an incompetent, unsuccessful,
or corrupt investigation which would not do so. The Court further
says that the Illinois police officers did not advise the
petitioner of his "constitutional rights" before he confessed to
the murder. This Court has never held that the Constitution
requires the police to give any "advice" under circumstances such
as these.

															Supported by no stronger authority than its own rhetoric, the
Court today converts a routine police investigation of an unsolved
murder into a distorted analogue of a judicial trial. It imports
into this investigation constitutional concepts historically
applicable only after the onset of formal prosecutorial
proceedings. By doing so, I think the Court perverts those precious
constitutional guarantees, and frustrates the vital interests of
society in preserving the legitimate and proper function of honest
and purposeful police investigation.

															Like my Brother CLARK, I cannot escape the logic of my Brother
WHITE's conclusions as to the extraordinary implications which
emanate from the Court's opinion in Page 378 U. S. 495 this case, and I share their views as to the untold and highly
unfortunate impact today's decision may have upon the fair
administration of criminal justice. I can only hope we have
completely misunderstood what the Court has said.

															* "In all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence."

															MR. JUSTICE WHITE, with whom MR. JUSTICE CLARK and MR. JUSTICE
STEWART join, dissenting.

															In Massiah v. United States, 377 U.
S. 201 , the Court held that, as of the date of the
indictment, the prosecution is dissentitled to secure admissions
from the accused. The Court now moves that date back to the time
when the prosecution begins to "focus" on the accused. Although the
opinion purports to be limited to the facts of this case, it would
be naive to think that the new constitutional right announced will
depend upon whether the accused has retained his own counsel, cf. Gideon v. Wainwright, 372 U.
S. 335 ; Griffin v. Illinois, 351 U. S.
12 ; Douglas v. California, 372 U.
S. 353 , or has asked to consult with counsel in the
course of interrogation. Cf. Carnley v. Cochran, 369 U. S. 506 . At
the very least, the Court holds that, once the accused becomes a
suspect and, presumably, is arrested, any admission made to the
police thereafter is inadmissible in evidence unless the accused
has waived his right to counsel. The decision is thus another major
step in the direction of the goal which the Court seemingly has in
mind -- to bar from evidence all admissions obtained from an
individual suspected of crime, whether involuntarily made or not.
It does, of course, put us one step "ahead" of the English judges
who have had the good sense to leave the matter a discretionary one
with the trial court.* I reject this step and Page 378 U. S. 496 the invitation to go farther which the Court has now issued.

															By abandoning the voluntary-involuntary test for admissibility
of confessions, the Court seems driven by the notion that it is
uncivilized law enforcement to use an accused's own admissions
against him at his trial. It attempts to find a home for this new
and nebulous rule of due process by attaching it to the right to
counsel guaranteed in the federal system by the Sixth Amendment and
binding upon the States by virtue of the due process guarantee of
the Fourteenth Amendment. Gideon v. Wainwright, supra. The
right to counsel now not only entitles the accused to counsel's
advice and aid in preparing for trial, but stands as an
impenetrable barrier to any interrogation once the accused has
become a suspect. From that very moment, apparently his right to
counsel attaches, a rule wholly unworkable and impossible to
administer unless police cars are equipped with public defenders
and undercover agents and police informants have defense counsel at
their side. I would not abandon the Court's prior cases defining
with some care and analysis the circumstances requiring the
presence or aid of counsel and substitute the amorphous and wholly
unworkable principle that counsel is constitutionally required
whenever he would or could be helpful. Hamilton v.
Alabama, 368 U. S. 52 ; White v. Maryland, 373 U. S. 59 ; Gideon v. Page 378 U. S. 497 Wainwright, supra. These cases dealt with the
requirement of counsel at proceedings in which definable rights
could be won or lost, not with stages where probative evidence
might be obtained. Under this new approach, one might just as well
argue that a potential defendant is constitutionally entitled to a
lawyer before, not after, he commits a crime, since it is then that
crucial incriminating evidence is put within the reach of the
Government by the would-be accused. Until now, there simply has
been no right guaranteed by the Federal Constitution to be free
from the use at trial of a voluntary admission made prior to
indictment.

															It is incongruous to assume that the provision for counsel in
the Sixth Amendment was meant to amend or supersede the
self-incrimination provision of the Fifth Amendment, which is now
applicable to the States. Malloy v. Hogan, 378 U. S.
1 . That amendment addresses itself to the very issue of
incriminating admissions of an accused and resolves it by
proscribing only compelled statements. Neither the Framers, the
constitutional language, a century of decisions of this Court, nor
Professor Wigmore provides an iota of support for the idea that an
accused has an absolute constitutional right not to answer even in
the absence of compulsion -- the constitutional right not to
incriminate himself by making voluntary disclosures.

															Today's decision cannot be squared with other provisions of the
Constitution which, in my view, define the system of criminal
justice this Court is empowered to administer. The Fourth Amendment
permits upon probable cause even compulsory searches of the suspect
and his possessions and the use of the fruits of the search at
trial, all in the absence of counsel. The Fifth Amendment and state
constitutional provisions authorize, indeed require, inquisitorial
grand jury proceedings at which a potential defendant, in the
absence of counsel, Page 378 U. S. 498 is shielded against no more than compulsory incrimination. Mulloney v. United States, 79 F.2d 566, 578 (C.A. 1st
Cir.); United States v. Benjamin, 120 F.2d 521, 522
(C.A.2d Cir.); United States v. Scully, 225 F.2d 113, 115
(C.A.2d Cir.); United States v. Gilboy, 160 F.
Supp. 442 (D.C.M.D.Pa.). A grand jury witness, who may be a
suspect, is interrogated and his answers, at least until today, are
admissible in evidence at trial. And these provisions have been
thought of as constitutional safeguards to persons suspected of an
offense. Furthermore, until now, the Constitution has permitted the
accused to be fingerprinted and to be identified in a lineup or in
the courtroom itself.

															The Court chooses to ignore these matters, and to rely on the
virtues and morality of a system of criminal law enforcement which
does not depend on the "confession." No such judgment is to be
found in the Constitution. It might be appropriate for a
legislature to provide that a suspect should not be consulted
during a criminal investigation; that an accused should never be
called before a grand jury to answer, even if he wants to, what may
well be incriminating questions, and that no person, whether he be
a suspect, guilty criminal or innocent bystander, should be put to
the ordeal of responding to orderly noncompulsory inquiry by the
State. But this is not the system our Constitution requires. The
only "inquisitions" the Constitution forbids are those which compel
incrimination. Escobedo's statements were not compelled, and the
Court does not hold that they were.

															This new American judges' rule, which is to be applied in both
federal and state courts, is perhaps thought to be a necessary
safeguard against the possibility of extorted confessions. To this
extent, it reflects a deep-seated distrust of law enforcement
officers everywhere, unsupported by relevant data or current
material based upon our own Page 378 U. S. 499 experience. Obviously law enforcement officers can make mistakes
and exceed their authority, as today's decision shows that even
judges can do, but I have somewhat more faith than the Court
evidently has in the ability and desire of prosecutors and of the
power of the appellate courts to discern and correct such
violations of the law.

															The Court may be concerned with a narrower matter: the unknowing
defendant who responds to police questioning because he mistakenly
believes that he must and that his admissions will not be used
against him. But this worry hardly calls for the broadside the
Court has now fired. The failure to inform an accused that he need
not answer and that his answers may be used against him is very
relevant indeed to whether the disclosures are compelled. Cases in
this Court, to say the least, have never placed a premium on
ignorance of constitutional rights. If an accused is told he must
answer and does not know better, it would be very doubtful that the
resulting admissions could be used against him. When the accused
has not been informed of his rights at all, the Court
characteristically and properly looks very closely at the
surrounding circumstances. See Ward v. Texas, 316 U.
S. 547 ; Haley v. Ohio, 332 U.
S. 596 ; Payne v. Arkansas, 356 U.
S. 560 . I would continue to do so. But, in this case,
Danny Escobedo knew full well that he did not have to answer, and
knew full well that his lawyer had advised him not to answer.

															I do not suggest for a moment that law enforcement will be
destroyed by the rule announced today. The need for peace and order
is too insistent for that. But it will be crippled, and its task
made a great deal more difficult, all, in my opinion, for unsound,
unstated reasons which can find no home in any of the provisions of
the Constitution.

															*

															"[I]t seems from reported cases that the judges have given up
enforcing their own rules, for it is no longer the practice to
exclude evidence obtained by questioning in custody. . . . A
traditional principle of 'fairness' to criminals, which has quite
possibly lost some of the reason for its existence, is maintained
in words while it is disregarded in fact. . . ."

															"The reader may be expecting at this point a vigorous
denunciation of the police and of the judges, and a plea for a
return to the Judges' Rules as interpreted in 1930. What has to be
considered, however, is whether these Rules are a workable part of
the machinery of justice. Perhaps the truth is that the Rules have
been abandoned, by tacit consent, just because they are an
unreasonable restriction upon the activities of the police in
bringing criminals to book."

															Williams, Questioning by the Police: Some Practical
Considerations, [1960] Crim.L.Rev. 325, 331-332. See also [1964] Crim.L.Rev. 161-182.


U.S. Supreme Court Davis v. Alaska, 415
U.S. 308 (1974) Davis v. Alaska No. 72-5794 Argued December 12,
1973 Decided February 27,
1974 415
U.S. 308 CERTIORARI TO THE SUPREME COURT OF
ALASKA Syllabus Petitioner was convicted of grand larceny and burglary following
a trial in which the trial court, on motion of the prosecution,
issued a protective order prohibiting questioning Green, a key
prosecution witness, concerning Green's adjudication as a juvenile
delinquent relating to a burglary and his probation status at the
time of the events as to which he was to testify. The trial court's
order was based on state provisions protecting the anonymity of
juvenile offenders. The Alaska Supreme Court affirmed. Held: Petitioner was denied his right of confrontation
of witnesses under the Sixth and Fourteenth Amendments. Pp. 415 U. S.
315 -321.

															(a) The defense was entitled to attempt to show that Green was
biased because of his vulnerable status as a probationer and his
concern that he might be a suspect in the burglary charged against
petitioner, and limiting the cross-examination of Green precluded
the defense from showing his possible bias. Pp. 415 U. S.
315 -318.

															(b) Petitioner's right of confrontation is paramount to the
State's policy of protecting juvenile offenders, and any temporary
embarrassment to Green by disclosure of his juvenile court record
and probation status is outweighed by petitioner's right
effectively to cross-examine a witness. Pp. 415 U. S.
319 -320. 499 P.2d 1025 ,
reversed and remanded.

															BURGER, C.J., delivered the opinion of the Court, in which
DOUGLAS, BRENNAN, STEWART, MARSHALL, BLACKMUN, and POWELL, JJ.,
joined. STEWART, J., filed a concurring statement, post, p. 415 U. S. 321 .
WHITE, J., filed a dissenting opinion, in which REHNQUIST, J.,
joined, post, p. 415 U. S.
321 . Page 415 U. S. 309 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

															We granted certiorari in this case to consider whether the
Confrontation Clause requires that a defendant in a criminal case
be allowed to impeach the credibility of a prosecution witness by
cross-examination directed at possible bias deriving from the
witness' probationary status as a juvenile delinquent when such an
impeachment would conflict with a State's asserted interest in
preserving the confidentiality of juvenile adjudications of
delinquency. (1) When the Polar Bar in Anchorage closed in the early morning
hours of February 16, 1970, well over a thousand dollars in cash
and checks was in the bar's Mosler safe. About midday, February 16,
it was discovered that the bar had been broken into and the safe,
about two feet square and weighing several hundred pounds, had been
removed from the premises.

															Later that, afternoon, the Alaska State Troopers received word
that a safe had been discovered about 26 miles outside Anchorage
near the home of Jess Straight and his family. The safe, which was
subsequently determined to be the one stolen from the Polar Bar,
had been pried open and the contents removed. Richard Green, Jess
Straight's stepson, told investigating troopers on the scene that,
at about noon on February 16, he had seen and spoken with two Negro
men standing alongside a late-model metallic blue Chevrolet sedan
near where the safe was later discovered. The next day,
Anchorage Page 415 U. S. 310 police investigators brought him to the police station, where
Green was given six photographs of adult Negro males. After
examining the photographs for 30 seconds to a minute, Green
identified the photograph of petitioner as that of one of the men
he had encountered the day before and described to the police.
Petitioner was arrested the next day, February 18. On February 19,
Green picked petitioner out of a lineup of seven Negro males.

															At trial, evidence was introduced to the effect that paint chips
found in the trunk of petitioner's rented blue Chevrolet could have
originated from the surface of the stolen safe. Further, the trunk
of the car contained particles which were identified as safe
insulation characteristic of that found in Mosler safes. The
insulation found in the trunk matched that of the stolen safe.

															Richard Green was a crucial witness for the prosecution. He
testified at trial that, while on an errand for his mother, he
confronted two men standing beside a late-model metallic blue
Chevrolet, parked on a road near his family's house. The man
standing at the rear of the car spoke to Green asking if Green
lived nearby and if his father was home. Green offered the men
help, but his offer was rejected. On his return from the errand,
Green again passed the two men, and he saw the man with whom he had
had the conversation standing at the rear of the car with
"something like a crowbar" in his hands. Green identified
petitioner at the trial as the man with the "crowbar." The safe was
discovered later that afternoon at the point, according to Green,
where the Chevrolet had been parked.

															Before testimony was taken at the trial of petitioner, the
prosecutor moved for a protective order to prevent any reference to
Green's juvenile record by the defense in the course of
cross-examination. At the time of the Page 415 U. S. 311 trial and at the time of the events Green testified to, Green
was on probation by order of a juvenile court after having been
adjudicated a delinquent for burglarizing two cabins. Green was 16
years of age at the time of the Polar Bar burglary, but had turned
17 prior to trial.

															In opposing the protective order, petitioner's counsel made it
clear that he would not introduce Green's juvenile adjudication as
a general impeachment of Green's character as a truthful person
but, rather, to show specifically that, at the same time Green was
assisting the police in identifying petitioner he was on probation
for burglary. From this petitioner would seek to show -- or at
least argue -- that Green acted out of fear or concern of possible
jeopardy to his probation. Not only might Green have made a hasty
and faulty identification of petitioner to shift suspicion away
from himself as one who robbed the Polar Bar, but Green might have
been subject to undue pressure from the police, and made his
identifications under fear of possible probation revocation.
Green's record would be revealed only as necessary to probe Green
for bias and prejudice, and not generally to call Green's good
character into question.

															The trial court granted the motion for a protective order,
relying on Alaska Rule of Children's Procedure 23 [ Footnote 1 ] and Alaska Stat. 47.10.080(g)
(1971). [ Footnote 2 ] Page 415 U. S. 312 Although prevented from revealing that Green had been on
probation for the juvenile delinquency adjudication for burglary at
the same time that he originally identified petitioner, counsel for
petitioner did his best to expose Green's state of mind at the time
Green discovered that a stolen safe had been discovered near his
home. Green denied that he was upset or uncomfortable about the
discovery of the safe. He claimed not to have been worried about
any suspicions the police might have been expected to harbor
against him, though Green did admit that it crossed his mind that
the police might have thought he had something to do with the
crime.

															Defense counsel cross-examined Green in part as follows:

															"Q. Were you upset at all by the fact that this safe was found
on your property?"

															"A. No, sir."

															"Q. Did you feel that they might in some way suspect you of
this?"

															"A. No."

															"Q. Did you feel uncomfortable about this though?"

															"A. No, not really."

															"Q. The fact that a safe was found on your property?"

															"A. No."

															"Q. Did you suspect for a moment that the police might somehow
think that you were involved in this?"

															"A. I thought they might ask a few questions is all."

															"Q. Did that thought ever enter your mind that you -- that the
police might think that you were somehow connected with this?"

															" * * * Page 415 U. S.
313 " "A. No, it didn't really bother me, no."

															"Q. Well, but. . . . "

															"A. I mean, you know, it didn't -- it didn't come into my mind
as worrying me, you know."

															"Q. That really wasn't -- wasn't my question, Mr. Green. Did you
think that -- not whether it worried you so much or not, but did
you feel that there was a possibility that the police might somehow
think that you had something to do with this, that they might have
that, in their mind, not that you. . . . "

															"A. That came across my mind, yes, sir."

															"Q. That did cross your mind?"

															"A. Yes."

															"Q. So, as I understand it, you went down to the-- you drove in
with the police in -- in their car from mile 25, Glenn Highway down
to the city police station?"

															"A. Yes, sir."

															"Q. And then went into the investigators' room with Investigator
Gray and Investigator Weaver?"

															"A. Yeah."

															"Q. And they started asking you questions about -- about the
incident, is that correct?"

															"A. Yeah."

															"Q. Had you ever been questioned like that, before by any law
enforcement officers?"

															"A. No."

															"MR. RIPLEY: I'm going to object to this, Your Honor, it's a
carry-on with rehash of the same thing. He's attempting to raise in
the jury's mind. . . . "

															"THE COURT: I'll sustain the objection."

															Since defense counsel was prohibited from making inquiry as to
the witness' being on probation under a juvenile court
adjudication, Green's protestations of unconcern over possible
police suspicion that he might Page 415 U. S. 314 have had a part in the Polar Bar burglary and his categorical
denial of ever having been the subject of any similar law
enforcement interrogation went unchallenged. The tension between
the right of confrontation and the State's policy of protecting the
witness with a juvenile record is particularly evident in the final
answer given by the witness. Since it is probable that Green
underwent some questioning by police when he was arrested for the
burglaries on which his juvenile adjudication of delinquency
rested, the answer can be regarded as highly suspect at the very
least. The witness was, in effect, asserting, under protection of
the trial court's ruling, a right to give a questionably truthful
answer to a cross-examiner pursuing a relevant line of inquiry; it
is doubtful whether the bold "No" answer would have been given by
Green absent a belief that he was shielded from traditional
cross-examination. It would be difficult to conceive of a situation
more clearly illustrating the need for cross-examination. The
remainder of the cross-examination was devoted to an attempt to
prove that Green was making his identification at trial on the
basis of what he remembered from his earlier identifications at the
photographic display and lineup, and not on the basis of his
February 16 confrontation with the two men on the road.

															The Alaska Supreme Court affirmed petitioner's conviction,
[ Footnote 3 ] concluding that it
did not have to resolve the potential conflict in this case between
a defendant's right to a meaningful confrontation with adverse
witnesses and the State's interest in protecting the anonymity of a
juvenile offender, since

															"our reading of the trial Page 415 U. S. 315 transcript convinces us that counsel for the defendant was able
adequately to question the youth in considerable detail concerning
the possibility of bias or motive." 499 P.2d 1025 ,
1036 (1972). Although the court admitted that Green's denials of
any sense of anxiety or apprehension upon the safe's being found
close to his home were possibly self-serving,

															"the suggestion was nonetheless brought to the attention of the
jury, and that body was afforded the opportunity to observe the
demeanor of the youth and pass on his credibility." Ibid. The court concluded that, in light of the
indirect references permitted, there was no error.

															Since we granted certiorari limited to the question of whether
petitioner was denied his right under the Confrontation Clause to
adequately cross-examine Green, 410 U.S. 925 (1973), the essential
question turns on the correctness of the Alaska court's evaluation
of the "adequacy" of the scope of cross-examination permitted. We
disagree with that court's interpretation of the Confrontation
Clause, and we reverse. (2) The Sixth Amendment to the Constitution guarantees the right of
an accused in a criminal prosecution "to be confronted with the
witnesses against him." This right is secured for defendants in
state as well as federal criminal proceedings under Pointer v.
Texas, 380 U. S. 400 (1965). Confrontation means more than being allowed to confront the
witness physically. "Our cases construing the [confrontation]
clause hold that a primary interest secured by it is the right of
cross-examination." Douglas v. Alabama, 380 U.
S. 415 , 380 U. S. 418 (1965). Professor Wigmore stated:

															"The main and essential purpose of confrontation is to
secure for the opponent the opportunity of Page 415 U. S. 316 cross-examination. The opponent demands confrontation
not for the idle purpose of gazing upon the witness, or of being
gazed upon by him, but for the purpose of cross-examination, which
cannot be had except by the direct and personal putting of
questions and obtaining immediate answers."

															5 J. Wigmore, Evidence § 1395, p. 123 (3d ed.1940). (Emphasis in
original.)

															Cross-examination is the principal means by which the
believability of a witness and the truth of his testimony are
tested. Subject always to the broad discretion of a trial judge to
preclude repetitive and unduly harassing interrogation, the
cross-examiner is not only permitted to delve into the witness'
story to test the witness' perceptions and memory, but the
cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. One way of discrediting the
witness is to introduce evidence of a prior criminal conviction of
that witness. By so doing, the cross-examiner intends to afford the
jury a basis to infer that the witness' character is such that he
would be less likely than the average trustworthy citizen to be
truthful in his testimony. The introduction of evidence of a prior
crime is thus a general attack on the credibility of the witness. A
more particular attack on the witness' credibility is effected by
means of cross-examination directed toward revealing possible
biases, prejudices, or ulterior motives of the witness as they may
relate directly to issues or personalities in the case at hand. The
partiality of a witness is subject to exploration at trial, and is
"always relevant as discrediting the witness and affecting the
weight of his testimony." 3A J. Wigmore, Evidence § 940, p. 775
(Chadbourn rev.1970). We have recognized that the exposure of a
witness' motivation in testifying is a proper and important
function of the constitutionally protected right of
cross-examination. Page 415 U. S. 317 Greene v. McElroy, 360 U. S. 474 , 360 U. S. 496 (1959). [ Footnote 4 ]

															In the instant case, defense counsel sought to show the
existence of possible bias and prejudice of Green, causing him to
make a faulty initial identification of petitioner, which, in turn,
could have affected his later in-court identification of
petitioner. [ Footnote 5 ]

															We cannot speculate as to whether the jury, as sole judge of the
credibility of a witness, would have accepted this line of
reasoning had counsel been permitted to fully present it. But we do
conclude that the jurors were entitled to have the benefit of the
defense theory before them so that they could make an informed
judgment as to the weight to place on Green's testimony which
provided "a crucial link in the proof . . . of petitioner's act." Douglas v. Alabama, 380 U.S. at 380 U. S. 419 .
The accuracy and truthfulness of Green's testimony were key
elements in the State's case against petitioner. The claim of bias
which the defense sought to develop was Page 415 U. S. 318 admissible to afford a basis for an inference of undue pressure
because of Green's vulnerable status as a probationer, cf.
Alford v. United States, 282 U. S. 687 (1931), [ Footnote 6 ] as well as
of Green's possible concern that he might be a suspect in the
investigation.

															We cannot accept the Alaska Supreme Court's conclusion that the
cross-examination that was permitted defense counsel was adequate
to develop the issue of bias properly to the jury. While counsel
was permitted to ask Green whether he was biased, counsel
was unable to make a record from which to argue why Green
might have been biased or otherwise lacked that degree of
impartiality expected of a witness at trial. On the basis of the
limited cross-examination that was permitted, the jury might well
have thought that defense counsel was engaged in a speculative and
baseless line of attack on the credibility of an apparently
blameless witness, or, as the prosecutor's objection put it, a
"rehash" of prior cross-examination. On these facts, it seems clear
to us that, to make any such inquiry effective, defense counsel
should have been permitted to expose to the jury the facts from
which jurors, as the sole triers of fact and credibility, could
appropriately draw inferences relating to the reliability of the
witness. Petitioner was thus denied the right of effective
cross-examination which

															"'would be constitutional error of the first magnitude and no
amount of showing of want of prejudice would cure it.' Brookhart v. Janis, 384 U. S. 1 , 384 U. S.
3 ." Smith v. Illinois, 390 U. S. 129 , 390 U. S. 131 (1968). Page 415 U. S. 319 (3) The claim is made that the State has an important interest in
protecting the anonymity of juvenile offenders, and that this
interest outweighs any competing interest this petitioner might
have in cross-examining Green about his being on probation. The
State argues that exposure of a juvenile's record of delinquency
would likely cause impairment of rehabilitative goals of the
juvenile correctional procedures. This exposure, it is argued,
might encourage the juvenile offender to commit further acts of
delinquency, or cause the juvenile offender to lose employment
opportunities or otherwise suffer unnecessarily for his youthful
transgression.

															We do not and need not challenge the State's interest as a
matter of its own policy in the administration of criminal justice
to seek to preserve the anonymity of a juvenile offender. Cf.
In re Gault, 387 U. S. 1 , 387 U. S. 25 (1967). Here, however, petitioner sought to introduce evidence of
Green's probation for the purpose of suggesting that Green was
biased and, therefore, that his testimony was either not to be
believed in his identification of petitioner or at least very
carefully considered in that light. Serious damage to the strength
of the State's case would have been a real possibility had
petitioner been allowed to pursue this line of inquiry. In this
setting, we conclude that the right of confrontation is paramount
to the State's policy of protecting a juvenile offender. Whatever
temporary embarrassment might result to Green or his family by
disclosure of his juvenile record -- if the prosecution insisted on
using him to make its case -- is outweighed by petitioner's right
to probe into the influence of possible bias in the testimony of a
crucial identification witness.

															In Alford v. United States, supra, we upheld the
right Page 415 U. S. 320 of defense counsel to impeach a witness by showing that, because
of the witness' incarceration in federal prison at the time of
trial, the witness' testimony was biased as "given under promise or
expectation of immunity, or under the coercive effect of his
detention by officers of the United States." 282 U.S. at 282 U. S. 693 .
In response to the argument that the witness had a right to be
protected from exposure of his criminal record, the Court
stated:

															"[N]o obligation is imposed on the court, such as that suggested
below, to protect a witness from being discredited on
cross-examination short of an attempted invasion of his
constitutional protection from self incrimination, properly
invoked. There is a duty to protect him from questions which go
beyond the bounds of proper cross-examination merely to harass,
annoy or humiliate him." Id. at 282 U. S. 694 .

															As in Alford, we conclude that the State's desire that
Green fulfill his public duty to testify free from embarrassment
and with his reputation unblemished must fall before the right of
petitioner to seek out the truth in the process of defending
himself.

															The State's policy interest in protecting the confidentiality of
a juvenile offender's record cannot require yielding of so vital a
constitutional right as the effective cross-examination for bias of
an adverse witness. The State could have protected Green from
exposure of his juvenile adjudication in these circumstances by
refraining from using him to make out its case; the State cannot,
consistent with the right of confrontation, require the petitioner
to bear the full burden of vindicating the State's interest in the
secrecy of juvenile criminal records. The judgment affirming
petitioner's convictions of burglary and grand larceny is reversed,
and the case is Page 415 U. S. 321 remanded for further proceedings not inconsistent with this
opinion. It is so ordered. [ Footnote 1 ]

															Rule 23 provides:

															"No adjudication, order, or disposition of a juvenile case shall
be admissible in a court not acting in the exercise of juvenile
jurisdiction except for use in a presentencing procedure in a
criminal case where the superior court, in its discretion,
determines that such use is appropriate."

															[ Footnote 2 ]

															Section 47.10.080(g) provides in pertinent part:

															"The commitment and placement of a child and evidence given in
the court are not admissible as evidence against the minor in a
subsequent case or proceedings in any other court. . . ."

															[ Footnote 3 ]

															In the same opinion. the Alaska Supreme Court also affirmed
petitioner's conviction, following a separate trial, for being a
felon in possession of a concealable firearm. That conviction is
not in issue before this Court.

															[ Footnote 4 ]

															In Greene, we stated:

															"Certain principles have remained relatively immutable in our
jurisprudence. One of these is that, where governmental action
seriously injures an individual, and the reasonableness of the
action depends on fact findings, the evidence used to prove the
Government's case must be disclosed to the individual so that he
has an opportunity to show that it is untrue. While this is
important in the case of documentary evidence, it is even more
important where the evidence consists of the testimony of
individuals whose memory might be faulty or who, in fact, might be
perjurers or persons motivated by malice, vindictiveness,
intolerance, prejudice, or jealousy. We have formalized these
protections in the requirements of confrontation and
cross-examination. . . ."

															360 U.S. at 360 U. S.
496 .

															[ Footnote 5 ]

															"[A] partiality of mind at some former time may be used as the basis of an argument to the same state at the
time of testifying, though the ultimate object is to establish
partiality at the time of testifying."

															3A J. Wigmore, Evidence § 940, p. 776 (Chadbourn rev.1970).
(Emphasis in original; footnotes omitted.)

															[ Footnote 6 ]

															Although Alford involved a federal criminal trial and
we reversed because of abuse of discretion and prejudicial error,
the constitutional dimension of our holding in Alford is
not in doubt. In Smith v. Illinois, 390 U.
S. 19 , 390 U. S. 13 -133
(1968), we relied, in part, on Alford to reverse a state
criminal conviction on confrontation grounds.

															MR. JUSTICE STEWART, concurring.

															The Court holds that, in the circumstances of this case, the
Sixth and Fourteenth Amendments conferred the right to
cross-examine a particular prosecution witness about his
delinquency adjudication for burglary and his status as a
probationer. Such cross-examination was necessary in this case in
order "to show the existence of possible bias and prejudice . . .
," ante at 415 U. S. 317 .
In joining the Court's opinion, I would emphasize that the Court
neither holds nor suggests that the Constitution confers a right in
every case to impeach the general credibility of a witness through
cross-examination about his past delinquency adjudications or
criminal convictions.

															MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins,
dissenting.

															As I see it, there is no constitutional principle at stake here.
This is nothing more than a typical instance of a trial court
exercising its discretion to control or limit cross-examination,
followed by a typical decision of a state appellate court refusing
to disturb the judgment of the trial court and itself concluding
that limiting cross-examination had done no substantial harm to the
defense. Yet the Court insists on second-guessing the state courts
and, in effect, inviting federal review of every ruling of a state
trial judge who believes cross-examination has gone far enough. I
would not undertake this task, if for no other reason than that I
have little faith in our ability, in fact-bound cases and on a cold
record, to improve on the judgment of trial judges and of the state
appellate courts who agree with them. I would affirm the
judgment.