U.S. Supreme Court Miranda v. Arizona, 384
U.S. 436 (1966) Miranda v. Arizona No. 759 Argued February 28-March 1, 1966 Decided June 13, 1966* 384
U.S. 436 CERTIORARI TO THE SUPREME COURT OF ARIZONA MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

															The cases before us raise questions which go to the roots of our
concepts of American criminal jurisprudence: the restraints society
must observe consistent with the Federal Constitution in
prosecuting individuals for crime. More specifically, we deal with
the admissibility of statements obtained from an individual who is
subjected to custodial police interrogation and the necessity for
procedures which assure that the individual is accorded his
privilege under the Fifth Amendment to the Constitution not to be
compelled to incriminate himself. [440 ]

															We dealt with certain phases of this problem recently in Escobedo v. Illinois , 378 U. S. 478 (1964).
There, as in the four cases before us, law enforcement officials
took the defendant into custody and interrogated him in a police
station for the purpose of obtaining a confession. The police did
not effectively advise him of his right to remain silent or of his
right to consult with his attorney. Rather, they confronted him
with an alleged accomplice who accused him of having perpetrated a
murder. When the defendant denied the accusation and said "I didn't
shoot Manuel, you did it," they handcuffed him and took him to an
interrogation room. There, while handcuffed and standing, he was
questioned for four hours until he confessed. During this
interrogation, the police denied his request to speak to his
attorney, and they prevented his retained attorney, who had come to
the police station, from consulting with him. At his trial, the
State, over his objection, introduced the confession against him.
We held that the statements thus made were constitutionally
inadmissible.

															This case has been the subject of judicial interpretation and
spirited legal debate since it was decided two years ago. Both
state and federal courts, in assessing its implications, have
arrived at varying conclusions. [ Footnote 1 ] A wealth of scholarly material has been
written tracing its ramifications and underpinnings. [ Footnote 2 ] Police and prosecutor [441 ]

															have speculated on its range and desirability. [ Footnote 3 ] We granted certiorari in these
cases, 382 U.S. 924, 925, 937, in order further to explore some
facets of the problems thus exposed of applying the privilege
against self-incrimination to in-custody interrogation, and to
give [442 ]

															concrete constitutional guidelines for law enforcement agencies
and courts to follow.

															We start here, as we did in Escobedo , with the premise
that our holding is not an innovation in our jurisprudence, but is
an application of principles long recognized and applied in other
settings. We have undertaken a thorough reexamination of the Escobedo decision and the principles it announced, and we
reaffirm it. That case was but an explication of basic rights that
are enshrined in our Constitution -- that "No person
. . . shall be compelled in any criminal case to be a
witness against himself," and that "the accused shall
. . . have the Assistance of Counsel" -- rights which
were put in jeopardy in that case through official overbearing.
These precious rights were fixed in our Constitution only after
centuries of persecution and struggle. And, in the words of Chief
Justice Marshall, they were secured "for ages to come, and
. . . designed to approach immortality as nearly as human
institutions can approach it," Cohens v. Virginia , 6
Wheat. 264, 387 (1821).

															Over 70 years ago, our predecessors on this Court eloquently
stated:

															"The maxim nemo tenetur seipsum accusare had its origin
in a protest against the inquisitorial and manifestly unjust
methods of interrogating accused persons, which [have] long
obtained in the continental system, and, until the expulsion of the
Stuarts from the British throne in 1688 and the erection of
additional barriers for the protection of the people against the
exercise of arbitrary power, [were] not uncommon even in England.
While the admissions or confessions of the prisoner, when
voluntarily and freely made, have always ranked high in the scale
of incriminating evidence, if an accused person be asked to explain
his apparent connection with a crime under investigation, the ease
with which the [443 ]

															questions put to him may assume an inquisitorial character, the
temptation to press the witness unduly, to browbeat him if he be
timid or reluctant, to push him into a corner, and to entrap him
into fatal contradictions, which is so painfully evident in many of
the earlier state trials, notably in those of Sir Nicholas
Throckmorton and Udal, the Puritan minister, made the system so
odious as to give rise to a demand for its total abolition. The
change in the English criminal procedure in that particular seems
to be founded upon no statute and no judicial opinion, but upon a
general and silent acquiescence of the courts in a popular demand.
But, however adopted, it has become firmly embedded in English as
well as in American jurisprudence. So deeply did the iniquities of
the ancient system impress themselves upon the minds of the
American colonists that the States, with one accord, made a denial
of the right to question an accused person a part of their
fundamental law, so that a maxim, which in England was a mere rule
of evidence, became clothed in this country with the impregnability
of a constitutional enactment." Brown v. Walker , 161 U. S. 591 , 596-597
(1896). In stating the obligation of the judiciary to apply these
constitutional rights, this Court declared in Weems v. United
States , 217 U.
S. 349 , 373 (1910):

															". . . our contemplation cannot be only of what has
been, but of what may be. Under any other rule, a constitution
would indeed be as easy of application as it would be deficient in
efficacy and power. Its general principles would have little value,
and be converted by precedent into impotent and lifeless formulas.
Rights declared in words might be lost in reality. And this has
been recognized. The [444 ]

															meaning and vitality of the Constitution have developed against
narrow and restrictive construction."

															This was the spirit in which we delineated, in meaningful
language, the manner in which the constitutional rights of the
individual could be enforced against overzealous police practices.
It was necessary in Escobedo, as here, to insure that what was
proclaimed in the Constitution had not become but a "form of
words," Silverthorne Lumber Co. v. United States , 251 U. S. 385 , 392
(1920), in the hands of government officials. And it is in this
spirit, consistent with our role as judges, that we adhere to the
principles of Escobedo today.

															Our holding will be spelled out with some specificity in the
pages which follow, but, briefly stated, it is this: the
prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective
to secure the privilege against self-incrimination. By custodial
interrogation, we mean questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. [ Footnote 4 ] As for the procedural
safeguards to be employed, unless other fully effective means are
devised to inform accused persons of their right of silence and to
assure a continuous opportunity to exercise it, the following
measures are required. Prior to any questioning, the person must be
warned that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and that he has a
right to the presence of an attorney, either retained or appointed.
The defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and intelligently. If,
however, he indicates in any manner and at any stage of the [445 ]

															process that he wishes to consult with an attorney before
speaking, there can be no questioning. Likewise, if the individual
is alone and indicates in any manner that he does not wish to be
interrogated, the police may not question him. The mere fact that
he may have answered some questions or volunteered some statements
on his own does not deprive him of the right to refrain from
answering any further inquiries until he has consulted with an
attorney and thereafter consents to be questioned. I The constitutional issue we decide in each of these cases is the
admissibility of statements obtained from a defendant questioned
while in custody or otherwise deprived of his freedom of action in
any significant way. In each, the defendant was questioned by
police officers, detectives, or a prosecuting attorney in a room in
which he was cut off from the outside world. In none of these cases
was the defendant given a full and effective warning of his rights
at the outset of the interrogation process. In all the cases, the
questioning elicited oral admissions, and in three of them, signed
statements as well which were admitted at their trials. They all
thus share salient features -- incommunicado interrogation of
individuals in a police-dominated atmosphere, resulting in
self-incriminating statements without full warnings of
constitutional rights.

															An understanding of the nature and setting of this in-custody
interrogation is essential to our decisions today. The difficulty
in depicting what transpires at such interrogations stems from the
fact that, in this country, they have largely taken place
incommunicado. From extensive factual studies undertaken in the
early 1930's, including the famous Wickersham Report to Congress by
a Presidential Commission, it is clear that police violence and the
"third degree" flourished at that time. [ Footnote 5 ] [446 ]

															In a series of cases decided by this Court long after these
studies, the police resorted to physical brutality -- beating,
hanging, whipping -- and to sustained and protracted questioning
incommunicado in order to extort confessions. [ Footnote 6 ] The Commission on Civil Rights in
1961 found much evidence to indicate that "some policemen still
resort to physical force to obtain confessions," 1961 Comm'n on
Civil Rights Rep. Justice, pt. 5, 17. The use of physical brutality
and violence is not, unfortunately, relegated to the past or to any
part of the country. Only recently in Kings County, New York, the
police brutally beat, kicked and placed lighted cigarette butts on
the back of a potential witness under interrogation for the purpose
of securing a statement incriminating a third party. People v.
Portelli , 15 N.Y.2d 235, 205 N.E.2d 857, 257 N.Y.S.2d 931
(1965). [ Footnote 7 ] [447 ]

															The examples given above are undoubtedly the exception now, but
they are sufficiently widespread to be the object of concern.
Unless a proper limitation upon custodial interrogation is achieved
-- such as these decisions will advance -- there can be no
assurance that practices of this nature will be eradicated in the
foreseeable future. The conclusion of the Wickersham Commission
Report, made over 30 years ago, is still pertinent:

															"To the contention that the third degree is necessary to get the
facts, the reporters aptly reply in the language of the present
Lord Chancellor of England (Lord Sankey):"

															"It is not admissible to do a great right by doing a little
wrong. . . . It is not sufficient to do justice by
obtaining a proper result by irregular or improper means."

															"Not only does the use of the third degree involve a flagrant
violation of law by the officers of the law, but it involves also
the dangers of false confessions, and it tends to make police and
prosecutors less zealous in the search for objective evidence. As
the New York prosecutor quoted in the report said, 'It is a
short-cut, and makes the police lazy and unenterprising.' Or, as
another official quoted remarked: 'If you use your fists, you [448 ]

															are not so likely to use your wits.' We agree with the
conclusion expressed in the report, that"

															"The third degree brutalizes the police, hardens the prisoner
against society, and lowers the esteem in which the administration
of Justice is held by the public."

															"IV National Commission on Law Observance and Enforcement,
Report on Lawlessness in Law Enforcement 5 (1931)."

															Again we stress that the modern practice of in-custody
interrogation is psychologically, rather than physically, oriented.
As we have stated before,

															"Since Chambers v. Florida , 309 U. S. 227 , this Court has
recognized that coercion can be mental as well as physical, and
that the blood of the accused is not the only hallmark of an
unconstitutional inquisition." Blackburn v. Alabama , 361 U. S. 199 , 206
(1960). Interrogation still takes place in privacy. Privacy results
in secrecy, and this, in turn, results in a gap in our knowledge as
to what, in fact, goes on in the interrogation rooms. A valuable
source of information about present police practices, however, may
be found in various police manuals and texts which document
procedures employed with success in the past, and which recommend
various other effective tactics. [ Footnote 8 ] These [449 ]

															texts are used by law enforcement agencies themselves as guides.
[ Footnote 9 ] It should be noted
that these texts professedly present the most enlightened and
effective means presently used to obtain statements through
custodial interrogation. By considering these texts and other data,
it is possible to describe procedures observed and noted around the
country.

															The officers are told by the manuals that the

															"principal psychological factor contributing to a successful
interrogation is privacy -- being alone with the person
under interrogation. [ Footnote 10 ]"

															The efficacy of this tactic has been explained as follows:

															"If at all practicable, the interrogation should take place in
the investigator's office or at least in a room of his own choice.
The subject should be deprived of every psychological advantage. In
his own home, he may be confident, indignant, or recalcitrant. He
is more keenly aware of his rights and [450 ]

															more reluctant to tell of his indiscretions or criminal behavior
within the walls of his home. Moreover his family and other friends
are nearby, their presence lending moral support. In his own
office, the investigator possesses all the advantages. The
atmosphere suggests the invincibility of the forces of the law.
[ Footnote 11 ]"

															To highlight the isolation and unfamiliar surroundings, the
manuals instruct the police to display an air of confidence in the
suspect's guilt and, from outward appearance, to maintain only an
interest in confirming certain details. The guilt of the subject is
to be posited as a fact. The interrogator should direct his
comments toward the reasons why the subject committed the act,
rather than court failure by asking the subject whether he did it.
Like other men, perhaps the subject has had a bad family life, had
an unhappy childhood, had too much to drink, had an unrequited
desire for women. The officers are instructed to minimize the moral
seriousness of the offense, [ Footnote 12 ] to cast blame on the victim or on society.
[ Footnote 13 ] These tactics
are designed to put the subject in a psychological state where his
story is but an elaboration of what the police purport to know
already -- that he is guilty. Explanations to the contrary are
dismissed and discouraged.

															The texts thus stress that the major qualities an interrogator
should possess are patience and perseverance. [451 ]

															One writer describes the efficacy of these characteristics in
this manner:

															"In the preceding paragraphs, emphasis has been placed on
kindness and stratagems. The investigator will, however, encounter
many situations where the sheer weight of his personality will be
the deciding factor. Where emotional appeals and tricks are
employed to no avail, he must rely on an oppressive atmosphere of
dogged persistence. He must interrogate steadily and without
relent, leaving the subject no prospect of surcease. He must
dominate his subject and overwhelm him with his inexorable will to
obtain the truth. He should interrogate for a spell of several
hours, pausing only for the subject's necessities in acknowledgment
of the need to avoid a charge of duress that can be technically
substantiated. In a serious case, the interrogation may continue
for days, with the required intervals for food and sleep, but with
no respite from the atmosphere of domination. It is possible in
this way to induce the subject to talk without resorting to duress
or coercion. The method should be used only when the guilt of the
subject appears highly probable. [ Footnote
14 ]"

															The manuals suggest that the suspect be offered legal excuses
for his actions in order to obtain an initial admission of guilt.
Where there is a suspected revenge killing, for example, the
interrogator may say:

															"Joe, you probably didn't go out looking for this fellow with
the purpose of shooting him. My guess is, however, that you
expected something from him, and that's why you carried a gun --
for your own protection. You knew him for what he was, no good.
Then when you met him, he probably started using foul, abusive
language and he gave some indication [452 ]

															that he was about to pull a gun on you, and that's when you had
to act to save your own life. That's about it, isn't it, Joe?
[ Footnote 15 ]"

															Having then obtained the admission of shooting, the interrogator
is advised to refer to circumstantial evidence which negates the
self-defense explanation. This should enable him to secure the
entire story. One text notes that,

															"Even if he fails to do so, the inconsistency between the
subject's original denial of the shooting and his present admission
of at least doing the shooting will serve to deprive him of a
self-defense 'out' at the time of trial. [ Footnote
16 ]"

															When the techniques described above prove unavailing, the texts
recommend they be alternated with a show of some hostility. One
ploy often used has been termed the "friendly-unfriendly," or the
"Mutt and Jeff" act:

															". . . In this technique, two agents are employed.
Mutt, the relentless investigator, who knows the subject is guilty
and is not going to waste any time. He's sent a dozen men away for
this crime, and he's going to send the subject away for the full
term. Jeff, on the other hand, is obviously a kindhearted man. He
has a family himself. He has a brother who was involved in a little
scrape like this. He disapproves of Mutt and his tactics, and will
arrange to get him off the case if the subject will cooperate. He
can't hold Mutt off for very long. The subject would be wise to
make a quick decision. The technique is applied by having both
investigators present while Mutt acts out his role. Jeff may stand
by quietly and demur at some of Mutt's tactics. When Jeff makes his
plea for cooperation, Mutt is not present in the room. [ Footnote 17 ] " [453 ]

															The interrogators sometimes are instructed to induce a
confession out of trickery. The technique here is quite effective
in crimes which require identification or which run in series. In
the identification situation, the interrogator may take a break in
his questioning to place the subject among a group of men in a
line-up.

															"The witness or complainant (previously coached, if necessary)
studies the line-up and confidently points out the subject as the
guilty party. [ Footnote 18 ]"

															Then the questioning resumes "as though there were now no doubt
about the guilt of the subject." A variation on this technique is
called the "reverse line-up":

															"The accused is placed in a line-up, but this time he is
identified by several fictitious witnesses or victims who
associated him with different offenses. It is expected that the
subject will become desperate and confess to the offense under
investigation in order to escape from the false accusations.
[ Footnote 19 ]"

															The manuals also contain instructions for police on how to
handle the individual who refuses to discuss the matter entirely,
or who asks for an attorney or relatives. The examiner is to
concede him the right to remain silent.

															"This usually has a very undermining effect. First of all, he is
disappointed in his expectation of an unfavorable reaction on the
part of the interrogator. Secondly, a concession of this right to
remain silent impresses [454 ]

															the subject with the apparent fairness of his interrogator.
[ Footnote 20 ]"

															After this psychological conditioning, however, the officer is
told to point out the incriminating significance of the suspect's
refusal to talk:

															"Joe, you have a right to remain silent. That's your privilege,
and I'm the last person in the world who'll try to take it away
from you. If that's the way you want to leave this, O. K. But let
me ask you this. Suppose you were in my shoes, and I were in yours,
and you called me in to ask me about this, and I told you, 'I don't
want to answer any of your questions.' You'd think I had something
to hide, and you'd probably be right in thinking that. That's
exactly what I'll have to think about you, and so will everybody
else. So let's sit here and talk this whole thing over. [ Footnote 21 ]"

															Few will persist in their initial refusal to talk, it is said,
if this monologue is employed correctly.

															In the event that the subject wishes to speak to a relative or
an attorney, the following advice is tendered:

															"[T]he interrogator should respond by suggesting that the
subject first tell the truth to the interrogator himself, rather
than get anyone else involved in the matter. If the request is for
an attorney, the interrogator may suggest that the subject save
himself or his family the expense of any such professional service,
particularly if he is innocent of the offense under investigation.
The interrogator may also add, 'Joe, I'm only looking for the
truth, and if you're telling the truth, that's it. You can handle
this by yourself.' [ Footnote 22 ] " [455 ]

															From these representative samples of interrogation techniques,
the setting prescribed by the manuals and observed in practice
becomes clear. In essence, it is this: to be alone with the subject
is essential to prevent distraction and to deprive him of any
outside support. The aura of confidence in his guilt undermines his
will to resist. He merely confirms the preconceived story the
police seek to have him describe. Patience and persistence, at
times relentless questioning, are employed. To obtain a confession,
the interrogator must "patiently maneuver himself or his quarry
into a position from which the desired objective may be attained."
[ Footnote 23 ] When normal
procedures fail to produce the needed result, the police may resort
to deceptive stratagems such as giving false legal advice. It is
important to keep the subject off balance, for example, by trading
on his insecurity about himself or his surroundings. The police
then persuade, trick, or cajole him out of exercising his
constitutional rights.

															Even without employing brutality, the "third degree" or the
specific stratagems described above, the very fact of custodial
interrogation exacts a heavy toll on individual liberty, and trades
on the weakness of individuals. [ Footnote 24 ] [456 ]

															This fact may be illustrated simply by referring to three
confession cases decided by this Court in the Term immediately
preceding our Escobedo decision. In Townsend v.
Sain , 372 U. S.
293 (1963), the defendant was a 19-year-old heroin addict,
described as a "near mental defective," id. at 307-310.
The defendant in Lynumn v. Illinois , 372 U. S. 528 (1963), was
a woman who confessed to the arresting officer after being
importuned to "cooperate" in order to prevent her children from
being taken by relief authorities. This Court, as in those cases,
reversed the conviction of a defendant in Haynes v.
Washington , 373
U. S. 503 (1963), whose persistent request during his
interrogation was to phone his wife or attorney. [ Footnote 25 ] In other settings, these
individuals might have exercised their constitutional rights. In
the incommunicado police-dominated atmosphere, they succumbed.

															In the cases before us today, given this background, we concern
ourselves primarily with this interrogation atmosphere and the
evils it can bring. In No. 759, Miranda v. Arizona , the
police arrested the defendant and took him to a special
interrogation room, where they secured a confession. In No. 760, Vignera v. New York , the defendant made oral admissions to
the police after interrogation in the afternoon, and then signed an
inculpatory statement upon being questioned by an assistant
district attorney later the same evening. In No. 761, Westover
v. United States , the defendant was handed over to the Federal
Bureau of Investigation by [457 ]

															local authorities after they had detained and interrogated him
for a lengthy period, both at night and the following morning.
After some two hours of questioning, the federal officers had
obtained signed statements from the defendant. Lastly, in No. 584, California v. Stewart , the local police held the defendant
five days in the station and interrogated him on nine separate
occasions before they secured his inculpatory statement.

															In these cases, we might not find the defendants' statements to
have been involuntary in traditional terms. Our concern for
adequate safeguards to protect precious Fifth Amendment rights is,
of course, not lessened in the slightest. In each of the cases, the
defendant was thrust into an unfamiliar atmosphere and run through
menacing police interrogation procedures. The potentiality for
compulsion is forcefully apparent, for example, in Miranda , where the indigent Mexican defendant was a
seriously disturbed individual with pronounced sexual fantasies,
and in Stewart , in which the defendant was an indigent Los
Angeles Negro who had dropped out of school in the sixth grade. To
be sure, the records do not evince overt physical coercion or
patent psychological ploys. The fact remains that in none of these
cases did the officers undertake to afford appropriate safeguards
at the outset of the interrogation to insure that the statements
were truly the product of free choice.

															It is obvious that such an interrogation environment is created
for no purpose other than to subjugate the individual to the will
of his examiner. This atmosphere carries its own badge of
intimidation. To be sure, this is not physical intimidation, but it
is equally destructive of human dignity. [ Footnote 26 ] The current practice of incommunicado
interrogation is at odds with one of our [458 ]

															Nation's most cherished principles -- that the individual may
not be compelled to incriminate himself. Unless adequate protective
devices are employed to dispel the compulsion inherent in custodial
surroundings, no statement obtained from the defendant can truly be
the product of his free choice.

															From the foregoing, we can readily perceive an intimate
connection between the privilege against self-incrimination and
police custodial questioning. It is fitting to turn to history and
precedent underlying the Self-Incrimination Clause to determine its
applicability in this situation. II We sometimes forget how long it has taken to establish the
privilege against self-incrimination, the sources from which it
came, and the fervor with which it was defended. Its roots go back
into ancient times. [ Footnote
27 ] Perhaps [459 ]

															the critical historical event shedding light on its origins and
evolution was the trial of one John Lilburn, a vocal anti-Stuart
Leveller, who was made to take the Star Chamber Oath in 1637. The
oath would have bound him to answer to all questions posed to him
on any subject. The Trial of John Lilburn and John
Wharton , 3 How.St.Tr. 1315 (1637). He resisted the oath and
declaimed the proceedings, stating:

															"Another fundamental right I then contended for was that no
man's conscience ought to be racked by oaths imposed to answer to
questions concerning himself in matters criminal, or pretended to
be so."

															Haller & Davies, The Leveller Tracts 1647-1653, p. 454
(1944)

															On account of the Lilburn Trial, Parliament abolished the
inquisitorial Court of Star Chamber and went further in giving him
generous reparation. The lofty principles to which Lilburn had
appealed during his trial gained popular acceptance in England.
[ Footnote 28 ] These
sentiments worked their way over to the Colonies, and were
implanted after great struggle into the Bill of Rights. [ Footnote 29 ] Those who framed our
Constitution and the Bill of Rights were ever aware of subtle
encroachments on individual liberty. They knew that

															"illegitimate and unconstitutional practices get their first
footing . . . by silent approaches and slight deviations
from legal modes of procedure." Boyd v. United States , 116 U. S. 616 , 635
(1886). The privilege was elevated to constitutional status, and
has always been "as broad as the mischief [460 ]

															against which it seeks to guard." Counselman v.
Hitchcock , 142
U. S. 547 , 562 (1892). We cannot depart from this noble
heritage.

															Thus, we may view the historical development of the privilege as
one which groped for the proper scope of governmental power over
the citizen. As a "noble principle often transcends its origins,"
the privilege has come rightfully to be recognized in part as an
individual's substantive right, a "right to a private enclave where
he may lead a private life. That right is the hallmark of our
democracy." United States v. Grunewald , 233 F.2d 556, 579,
581-582 (Frank, J., dissenting), rev'd , 353 U.S.
391 (1957). We have recently noted that the privilege against
self-incrimination -- the essential mainstay of our adversary
system -- is founded on a complex of values, Murphy v.
Waterfront Comm'n , 378 U. S. 52 , 55-57, n. 5
(1964); Tehan v. Shott , 382 U. S. 406 , 414-415,
n. 12 (1966). All these policies point to one overriding thought:
the constitutional foundation underlying the privilege is the
respect a government -- state or federal -- must accord to the
dignity and integrity of its citizens. To maintain a "fair
state-individual balance," to require the government "to shoulder
the entire load," 8 Wigmore, Evidence 317 (McNaughton rev.1961), to
respect the inviolability of the human personality, our accusatory
system of criminal justice demands that the government seeking to
punish an individual produce the evidence against him by its own
independent labors, rather than by the cruel, simple expedient of
compelling it from his own mouth. Chambers v. Florida , 309 U. S. 227 ,
235-238 (1940). In sum, the privilege is fulfilled only when the
person is guaranteed the right "to remain silent unless he chooses
to speak in the unfettered exercise of his own will." Malloy v.
Hogan , 378 U. S.
1 , 8 (1964).

															The question in these cases is whether the privilege is fully
applicable during a period of custodial interrogation. [461 ]

															In this Court, the privilege has consistently been accorded a
liberal construction. Albertson v. SACB , 382 U. S. 70 , 81 (1965); Hoffman v. United States , 341 U. S. 479 , 486
(1951); Arndstein v. McCarthy , 254 U. S. 71 , 72-73
(1920); Counselman v. Hitchock , 142 U. S. 547 , 562
(1892). We are satisfied that all the principles embodied in the
privilege apply to informal compulsion exerted by law enforcement
officers during in-custody questioning. An individual swept from
familiar surroundings into police custody, surrounded by
antagonistic forces, and subjected to the techniques of persuasion
described above cannot be otherwise than under compulsion to speak.
As a practical matter, the compulsion to speak in the isolated
setting of the police station may well be greater than in courts or
other official investigations, where there are often impartial
observers to guard against intimidation or trickery. [ Footnote 30 ]

															This question, in fact, could have been taken as settled in
federal courts almost 70 years ago, when, in Bram v. United
States , 168 U.
S. 532 , 542 (1897), this Court held:

															"In criminal trials, in the courts of the United States,
wherever a question arises whether a confession is incompetent
because not voluntary, the issue is controlled by that portion of
the Fifth Amendment . . . commanding that no person
'shall be compelled in any criminal case to be a witness against
himself.'"

															In Bram , the Court reviewed the British and American
history and case law and set down the Fifth Amendment standard for
compulsion which we implement today:

															"Much of the confusion which has resulted from the effort to
deduce from the adjudged cases what [462 ]

															would be a sufficient quantum of proof to show that a confession
was or was not voluntary, has arisen from a misconception of the
subject to which the proof must address itself. The rule is not
that, in order to render a statement admissible, the proof must be
adequate to establish that the particular communications contained
in a statement were voluntarily made, but it must be sufficient to
establish that the making of the statement was voluntary; that is
to say, that from the causes, which the law treats as legally
sufficient to engender in the mind of the accused hope or fear in
respect to the crime charged, the accused was not involuntarily
impelled to make a statement, when, but for the improper
influences, he would have remained
silent. . . ."

															168 U.S. at 549. And see id. at 542.

															The Court has adhered to this reasoning. In 1924, Mr. Justice
Brandeis wrote for a unanimous Court in reversing a conviction
resting on a compelled confession, Wan v. United States , 266 U. S. 1 . He
stated:

															"In the federal courts, the requisite of voluntariness is not
satisfied by establishing merely that the confession was not
induced by a promise or a threat. A confession is voluntary in law
if, and only if, it was, in fact, voluntarily made. A confession
may have been given voluntarily, although it was made to police
officers, while in custody, and in answer to an examination
conducted by them. But a confession obtained by compulsion must be
excluded whatever may have been the character of the compulsion,
and whether the compulsion was applied in a judicial proceeding or
otherwise. Bram v. United States , 168 U. S. 532 ."

															266 U.S. at 14-15. In addition to the expansive historical
development of the privilege and the sound policies which have
nurtured [463 ]

															its evolution, judicial precedent thus clearly establishes its
application to incommunicado interrogation. In fact, the Government
concedes this point as well established in No. 761, Westover v.
United States , stating:

															"We have no doubt . . . that it is possible for a
suspect's Fifth Amendment right to be violated during in-custody
questioning by a law enforcement officer. [ Footnote
31 ]"

															Because of the adoption by Congress of Rule 5(a) of the Federal
Rules of Criminal Procedure, and this Court's effectuation of that
Rule in McNabb v. United States , 318 U. S. 332 (1943), and Mallory v. United States , 354 U. S. 449 (1957), we
have had little occasion in the past quarter century to reach the
constitutional issues in dealing with federal interrogations. These
supervisory rules, requiring production of an arrested person
before a commissioner "without unnecessary delay" and excluding
evidence obtained in default of that statutory obligation, were
nonetheless responsive to the same considerations of Fifth
Amendment policy that unavoidably face us now as to the States. In McNabb , 318 U.S. at 343-344, and in Mallory , 354
U.S. at 455-456, we recognized both the dangers of interrogation
and the appropriateness of prophylaxis stemming from the very fact
of interrogation itself. [ Footnote 32 ]

															Our decision in Malloy v. Hogan , 378 U. S. 1 (1964),
necessitates an examination of the scope of the privilege in state
cases as well. In Malloy , we squarely held the [464 ]

															privilege applicable to the States, and held that the
substantive standards underlying the privilege applied with full
force to state court proceedings. There, as in Murphy v.
Waterfront Comm'n , 378 U. S. 52 (1964), and Griffin v. California , 380 U. S. 609 (1965), we
applied the existing Fifth Amendment standards to the case before
us. Aside from the holding itself, the reasoning in Malloy made clear what had already become apparent -- that the substantive
and procedural safeguards surrounding admissibility of confessions
in state cases had become exceedingly exacting, reflecting all the
policies embedded in the privilege, 378 U.S. at 7-8. [ Footnote 33 ] The voluntariness doctrine
in the state cases, as Malloy indicates, encompasses all
interrogation practices which are likely to exert such pressure
upon an individual as to disable him from [465 ]

															making a free and rational choice. [ Footnote 34 ] The implications of this proposition
were elaborated in our decision in Escobedo v. Illinois , 378 U. S. 478 ,
decided one week after Malloy applied the privilege to the
States.

															Our holding there stressed the fact that the police had not
advised the defendant of his constitutional privilege to remain
silent at the outset of the interrogation, and we drew attention to
that fact at several points in the decision, 378 U.S. at 483, 485,
491. This was no isolated factor, but an essential ingredient in
our decision. The entire thrust of police interrogation there, as
in all the cases today, was to put the defendant in such an
emotional state as to impair his capacity for rational judgment.
The abdication of the constitutional privilege -- the choice on his
part to speak to the police -- was not made knowingly or
competently because of the failure to apprise him of his rights;
the compelling atmosphere of the in-custody interrogation, and not
an independent decision on his part, caused the defendant to
speak.

															A different phase of the Escobedo decision was
significant in its attention to the absence of counsel during the
questioning. There, as in the cases today, we sought a protective
device to dispel the compelling atmosphere of the interrogation. In Escobedo , however, the police did not relieve the
defendant of the anxieties which they had created in the
interrogation rooms. Rather, they denied his request for the
assistance of counsel, 378 U.S. at 481, 488, 491. [ Footnote 35 ] This heightened his
dilemma, and [466 ]

															made his later statements the product of this compulsion. Cf. Haynes v. Washington , 373 U. S. 503 , 373 U.S. 514 (1963). The
denial of the defendant's request for his attorney thus undermined
his ability to exercise the privilege -- to remain silent if he
chose or to speak without any intimidation, blatant or subtle. The
presence of counsel, in all the cases before us today, would he the
adequate protective device necessary to make the process of police
interrogation conform to the dictates of the privilege. His
presence would insure that statements made in the
government-established atmosphere are not the product of
compulsion.

															It was in this manner that Escobedo explicated another
facet of the pretrial privilege, noted in many of the Court's prior
decisions: the protection of rights at trial. [ Footnote 36 ] That counsel is present when
statements are taken from an individual during interrogation
obviously enhances the integrity of the factfinding processes in
court. The presence of an attorney, and the warnings delivered to
the individual, enable the defendant under otherwise compelling
circumstances to tell his story without fear, effectively, and in a
way that eliminates the evils in the interrogation process. Without
the protections flowing from adequate warnings and the rights of
counsel,

															"all the careful safeguards erected around the giving of
testimony, whether by an accused or any other witness, would become
empty formalities in a procedure where the most compelling possible
evidence of guilt, a confession, would have already been obtained
at the unsupervised pleasure of the police." Mapp v. Ohio , 367 U. S. 643 , 685 (1961)
(HARLAN, J., dissenting). Cf. Pointer v. Texas , 380 U. S. 400 (1965). [467 ] III Today, then, there can be no doubt that the Fifth Amendment
privilege is available outside of criminal court proceedings, and
serves to protect persons in all settings in which their freedom of
action is curtailed in any significant way from being compelled to
incriminate themselves. We have concluded that, without proper
safeguards, the process of in-custody interrogation of persons
suspected or accused of crime contains inherently compelling
pressures which work to undermine the individual's will to resist
and to compel him to speak where he would not otherwise do so
freely. In order to combat these pressures and to permit a full
opportunity to exercise the privilege against self-incrimination,
the accused must be adequately and effectively apprised of his
rights, and the exercise of those rights must be fully honored.

															It is impossible for us to foresee the potential alternatives
for protecting the privilege which might be devised by Congress or
the States in the exercise of their creative rulemaking capacities.
Therefore, we cannot say that the Constitution necessarily requires
adherence to any particular solution for the inherent compulsions
of the interrogation process as it is presently conducted. Our
decision in no way creates a constitutional straitjacket which will
handicap sound efforts at reform, nor is it intended to have this
effect. We encourage Congress and the States to continue their
laudable search for increasingly effective ways of protecting the
rights of the individual while promoting efficient enforcement of
our criminal laws. However, unless we are shown other procedures
which are at least as effective in apprising accused persons of
their right of silence and in assuring a continuous opportunity to
exercise it, the following safeguards must be observed.

															At the outset, if a person in custody is to be subjected to
interrogation, he must first be informed in clear and [468 ]

															unequivocal terms that he has the right to remain silent. For
those unaware of the privilege, the warning is needed simply to
make them aware of it -- the threshold requirement for an
intelligent decision as to its exercise. More important, such a
warning is an absolute prerequisite in overcoming the inherent
pressures of the interrogation atmosphere. It is not just the
subnormal or woefully ignorant who succumb to an interrogator's
imprecations, whether implied or expressly stated, that the
interrogation will continue until a confession is obtained or that
silence in the face of accusation is itself damning, and will bode
ill when presented to a jury. [ Footnote 37 ] Further, the warning will show the
individual that his interrogators are prepared to recognize his
privilege should he choose to exercise it.

															The Fifth Amendment privilege is so fundamental to our system of
constitutional rule, and the expedient of giving an adequate
warning as to the availability of the privilege so simple, we will
not pause to inquire in individual cases whether the defendant was
aware of his rights without a warning being given. Assessments of
the knowledge the defendant possessed, based on information [469 ]

															as to his age, education, intelligence, or prior contact with
authorities, can never be more than speculation; [ Footnote 38 ] a warning is a clear-cut fact.
More important, whatever the background of the person interrogated,
a warning at the time of the interrogation is indispensable to
overcome its pressures and to insure that the individual knows he
is free to exercise the privilege at that point in time.

															The warning of the right to remain silent must be accompanied by
the explanation that anything said can and will be used against the
individual in court. This warning is needed in order to make him
aware not only of the privilege, but also of the consequences of
forgoing it. It is only through an awareness of these consequences
that there can be any assurance of real understanding and
intelligent exercise of the privilege. Moreover, this warning may
serve to make the individual more acutely aware that he is faced
with a phase of the adversary system -- that he is not in the
presence of persons acting solely in his interest.

															The circumstances surrounding in-custody interrogation can
operate very quickly to overbear the will of one merely made aware
of his privilege by his interrogators. Therefore, the right to have
counsel present at the interrogation is indispensable to the
protection of the Fifth Amendment privilege under the system we
delineate today. Our aim is to assure that the individual's right
to choose between silence and speech remains unfettered throughout
the interrogation process. A once-stated warning, delivered by
those who will conduct the interrogation, cannot itself suffice to
that end among those who most require knowledge of their rights. A
mere [470 ]

															warning given by the interrogators is not alone sufficient to
accomplish that end. Prosecutors themselves claim that the
admonishment of the right to remain silent, without more, "will
benefit only the recidivist and the professional." Brief for the
National District Attorneys Association as amicus curiae ,
p. 14. Even preliminary advice given to the accused by his own
attorney can be swiftly overcome by the secret interrogation
process. Cf. Escobedo v. Illinois , 378 U. S. 478 , 485, n. 5.
Thus, the need for counsel to protect the Fifth Amendment privilege
comprehends not merely a right to consult with counsel prior to
questioning, but also to have counsel present during any
questioning if the defendant so desires.

															The presence of counsel at the interrogation may serve several
significant subsidiary functions, as well. If the accused decides
to talk to his interrogators, the assistance of counsel can
mitigate the dangers of untrustworthiness. With a lawyer present,
the likelihood that the police will practice coercion is reduced,
and, if coercion is nevertheless exercised, the lawyer can testify
to it in court. The presence of a lawyer can also help to guarantee
that the accused gives a fully accurate statement to the police,
and that the statement is rightly reported by the prosecution at
trial. See Crooker v. California , 357 U. S. 433 , 443-448
(1958) (DOUGLAS, J., dissenting).

															An individual need not make a pre-interrogation request for a
lawyer. While such request affirmatively secures his right to have
one, his failure to ask for a lawyer does not constitute a waiver.
No effective waiver of the right to counsel during interrogation
can be recognized unless specifically made after the warnings we
here delineate have been given. The accused who does not know his
rights and therefore does not make a request [471 ]

															may be the person who most needs counsel. As the California
Supreme Court has aptly put it:

															"Finally, we must recognize that the imposition of the
requirement for the request would discriminate against the
defendant who does not know his rights. The defendant who does not
ask for counsel is the very defendant who most needs counsel. We
cannot penalize a defendant who, not understanding his
constitutional rights, does not make the formal request, and, by
such failure, demonstrates his helplessness. To require the request
would be to favor the defendant whose sophistication or status had
fortuitously prompted him to make it." People v. Dorado , 62 Cal. 2d
338 , 351, 398 P.2d 361, 369-370, 42 Cal. Rptr. 169, 177-178
(1965) (Tobriner, J.). In Carnley v. Cochran , 369 U. S. 506 , 513
(1962), we stated:

															"[I]t is settled that, where the assistance of counsel is a
constitutional requisite, the right to be furnished counsel does
not depend on a request."

															This proposition applies with equal force in the context of
providing counsel to protect an accused's Fifth Amendment privilege
in the face of interrogation. [ Footnote 39 ] Although the role of counsel at trial
differs from the role during interrogation, the differences are not
relevant to the question whether a request is a prerequisite.

															Accordingly, we hold that an individual held for interrogation
must be clearly informed that he has the right to consult with a
lawyer and to have the lawyer with him during interrogation under
the system for protecting the privilege we delineate today. As with
the warnings of the right to remain silent and that anything stated
can be used in evidence against him, this warning is an absolute
prerequisite to interrogation. No amount of [472 ]

															circumstantial evidence that the person may have been aware of
this right will suffice to stand in its stead. Only through such a
warning is there ascertainable assurance that the accused was aware
of this right.

															If an individual indicates that he wishes the assistance of
counsel before any interrogation occurs, the authorities cannot
rationally ignore or deny his request on the basis that the
individual does not have or cannot afford a retained attorney. The
financial ability of the individual has no relationship to the
scope of the rights involved here. The privilege against
self-incrimination secured by the Constitution applies to all
individuals. The need for counsel in order to protect the privilege
exists for the indigent as well as the affluent. In fact, were we
to limit these constitutional rights to those who can retain an
attorney, our decisions today would be of little significance. The
cases before us, as well as the vast majority of confession cases
with which we have dealt in the past, involve those unable to
retain counsel. [ Footnote
40 ] While authorities are not required to relieve the accused
of his poverty, they have the obligation not to take advantage of
indigence in the administration of justice. [ Footnote 41 ] Denial [473 ]

															of counsel to the indigent at the time of interrogation while
allowing an attorney to those who can afford one would be no more
supportable by reason or logic than the similar situation at trial
and on appeal struck down in Gideon v. Wainwright , 372 U. S. 335 (1963), and Douglas v. California , 372 U. S. 353 (1963).

															In order fully to apprise a person interrogated of the extent of
his rights under this system, then, it is necessary to warn him not
only that he has the right to consult with an attorney, but also
that, if he is indigent, a lawyer will be appointed to represent
him. Without this additional warning, the admonition of the right
to consult with counsel would often be understood as meaning only
that he can consult with a lawyer if he has one or has the funds to
obtain one. The warning of a right to counsel would be hollow if
not couched in terms that would convey to the indigent -- the
person most often subjected to interrogation -- the knowledge that
he too has a right to have counsel present. [ Footnote 42 ] As with the warnings of the
right to remain silent and of the general right to counsel, only by
effective and express explanation to the indigent of this right can
there be assurance that he was truly in a position to exercise it.
[ Footnote 43 ]

															Once warnings have been given, the subsequent procedure is
clear. If the individual indicates in any manner, [474 ]

															at any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease. [ Footnote 44 ] At this point, he has shown that
he intends to exercise his Fifth Amendment privilege; any statement
taken after the person invokes his privilege cannot be other than
the product of compulsion, subtle or otherwise. Without the right
to cut off questioning, the setting of in-custody interrogation
operates on the individual to overcome free choice in producing a
statement after the privilege has been once invoked. If the
individual states that he wants an attorney, the interrogation must
cease until an attorney is present. At that time, the individual
must have an opportunity to confer with the attorney and to have
him present during any subsequent questioning. If the individual
cannot obtain an attorney and he indicates that he wants one before
speaking to police, they must respect his decision to remain
silent.

															This does not mean, as some have suggested, that each police
station must have a "station house lawyer" present at all times to
advise prisoners. It does mean, however, that, if police propose to
interrogate a person, they must make known to him that he is
entitled to a lawyer and that, if he cannot afford one, a lawyer
will be provided for him prior to any interrogation. If authorities
conclude that they will not provide counsel during a reasonable
period of time in which investigation in the field is carried out,
they may refrain from doing so without violating the person's Fifth
Amendment privilege so long as they do not question him during that
time. [475 ]

															If the interrogation continues without the presence of an
attorney and a statement is taken, a heavy burden rests on the
government to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination and
his right to retained or appointed counsel. Escobedo v.
Illinois , 378 U.
S. 478 , 490, n. 14. This Court has always set high standards of
proof for the waiver of constitutional rights, Johnson v.
Zerbst , 304 U.
S. 458 (1938), and we reassert these standards as applied to
in-custody interrogation. Since the State is responsible for
establishing the isolated circumstances under which the
interrogation takes place, and has the only means of making
available corroborated evidence of warnings given during
incommunicado interrogation, the burden is rightly on its
shoulders.

															An express statement that the individual is willing to make a
statement and does not want an attorney, followed closely by a
statement, could constitute a waiver. But a valid waiver will not
be presumed simply from the silence of the accused after warnings
are given, or simply from the fact that a confession was, in fact,
eventually obtained. A statement we made in Carnley v.
Cochran , 369 U.
S. 506 , 516 (1962), is applicable here:

															"Presuming waiver from a silent record is impermissible. The
record must show, or there must be an allegation and evidence which
show, that an accused was offered counsel but intelligently and
understandingly rejected the offer. Anything less is not
waiver." See also Glasser v. United States , 315 U. S. 60 (1942).
Moreover, where in-custody interrogation is involved, there is no
room for the contention that the privilege is waived if the
individual answers some questions or gives [476 ]

															some information on his own prior to invoking his right to
remain silent when interrogated. [ Footnote 45 ]

															Whatever the testimony of the authorities as to waiver of rights
by an accused, the fact of lengthy interrogation or incommunicado
incarceration before a statement is made is strong evidence that
the accused did not validly waive his rights. In these
circumstances, the fact that the individual eventually made a
statement is consistent with the conclusion that the compelling
influence of the interrogation finally forced him to do so. It is
inconsistent with any notion of a voluntary relinquishment of the
privilege. Moreover, any evidence that the accused was threatened,
tricked, or cajoled into a waiver will, of course, show that the
defendant did not voluntarily waive his privilege. The requirement
of warnings and waiver of rights is a fundamental with respect to
the Fifth Amendment privilege, and not simply a preliminary ritual
to existing methods of interrogation.

															The warnings required and the waiver necessary in accordance
with our opinion today are, in the absence of a fully effective
equivalent, prerequisites to the admissibility of any statement
made by a defendant. No distinction can be drawn between statements
which are direct confessions and statements which amount to
"admissions" of part or all of an offense. The privilege against
self-incrimination protects the individual from being compelled to
incriminate himself in any manner; it does not distinguish degrees
of incrimination. Similarly, [477 ]

															for precisely the same reason, no distinction may be drawn
between inculpatory statements and statements alleged to be merely
"exculpatory." If a statement made were, in fact, truly
exculpatory, it would, of course, never be used by the prosecution.
In fact, statements merely intended to be exculpatory by the
defendant are often used to impeach his testimony at trial or to
demonstrate untruths in the statement given under interrogation,
and thus to prove guilt by implication. These statements are
incriminating in any meaningful sense of the word, and may not be
used without the full warnings and effective waiver required for
any other statement. In Escobedo itself, the defendant
fully intended his accusation of another as the slayer to be
exculpatory as to himself.

															The principles announced today deal with the protection which
must be given to the privilege against self-incrimination when the
individual is first subjected to police interrogation while in
custody at the station or otherwise deprived of his freedom of
action in any significant way. It is at this point that our
adversary system of criminal proceedings commences, distinguishing
itself at the outset from the inquisitorial system recognized in
some countries. Under the system of warnings we delineate today, or
under any other system which may be devised and found effective,
the safeguards to be erected about the privilege must come into
play at this point.

															Our decision is not intended to hamper the traditional function
of police officers in investigating crime. See Escobedo v.
Illinois , 378 U.
S. 478 , 492. When an individual is in custody on probable
cause, the police may, of course, seek out evidence in the field to
be used at trial against him. Such investigation may include
inquiry of persons not under restraint. General on-the-scene
questioning as to facts surrounding a crime or other general
questioning of citizens in the factfinding process is not affected
by our holding. It is an act of [478 ]

															responsible citizenship for individuals to give whatever
information they may have to aid in law enforcement. In such
situations, the compelling atmosphere inherent in the process of
in-custody interrogation is not necessarily present. [ Footnote 46 ]

															In dealing with statements obtained through interrogation, we do
not purport to find all confessions inadmissible. Confessions
remain a proper element in law enforcement. Any statement given
freely and voluntarily without any compelling influences is, of
course, admissible in evidence. The fundamental import of the
privilege while an individual is in custody is not whether he is
allowed to talk to the police without the benefit of warnings and
counsel, but whether he can be interrogated. There is no
requirement that police stop a person who enters a police station
and states that he wishes to confess to a crime, [ Footnote 47 ] or a person who calls the police
to offer a confession or any other statement he desires to make.
Volunteered statements of any kind are not barred by the Fifth
Amendment, and their admissibility is not affected by our holding
today.

															To summarize, we hold that, when an individual is taken into
custody or otherwise deprived of his freedom by the authorities in
any significant way and is subjected to questioning, the privilege
against self-incrimination is jeopardized. Procedural safeguards
must be employed to [479 ]

															protect the privilege, and unless other fully effective means
are adopted to notify the person of his right of silence and to
assure that the exercise of the right will be scrupulously honored,
the following measures are required. He must be warned prior to any
questioning that he has the right to remain silent, that anything
he says can be used against him in a court of law, that he has the
right to the presence of an attorney, and that, if he cannot afford
an attorney one will be appointed for him prior to any questioning
if he so desires. Opportunity to exercise these rights must be
afforded to him throughout the interrogation. After such warnings
have been given, and such opportunity afforded him, the individual
may knowingly and intelligently waive these rights and agree to
answer questions or make a statement. But unless and until such
warnings and waiver are demonstrated by the prosecution at trial,
no evidence obtained as a result of interrogation can be used
against him. [ Footnote
48 ] IV A recurrent argument made in these cases is that society's need
for interrogation outweighs the privilege. This argument is not
unfamiliar to this Court. See, e.g., Chambers v. Florida , 309 U. S. 227 ,
240-241 (1940). The whole thrust of our foregoing discussion
demonstrates that the Constitution has prescribed the rights of the
individual when confronted with the power of government when it
provided in the Fifth Amendment that an individual cannot be
compelled to be a witness against himself. That right cannot be
abridged. As Mr. Justice Brandeis once observed:

															"Decency, security and liberty alike demand that government
officials shall be subjected to the same [480 ]

															rules of conduct that are commands to the citizen. In a
government of laws, existence of the government will be imperilled
if it fail to observe the law scrupulously. Our Government is the
potent, the omnipresent teacher. For good or for ill, it teaches
the whole people by its example. Crime is contagious. If the
Government becomes a lawbreaker, it breeds contempt for law; it
invites every man to become a law unto himself; it invites anarchy.
To declare that, in the administration of the criminal law, the end
justifies the means . . . would bring terrible
retribution. Against that pernicious doctrine this Court should
resolutely set its face." Olmstead v. United States , 277 U. S. 438 , 485 (1928)
(dissenting opinion). [ Footnote
49 ] In this connection, one of our country's distinguished
jurists has pointed out: "The quality of a nation's civilization
can be largely measured by the methods it uses in the enforcement
of its criminal law." [ Footnote
50 ]

															If the individual desires to exercise his privilege, he has the
right to do so. This is not for the authorities to decide. An
attorney may advise his client not to talk to police until he has
had an opportunity to investigate the case, or he may wish to be
present with his client during any police questioning. In doing so
an attorney is merely exercising the good professional judgment he
has been taught. This is not cause for considering the attorney a
menace to law enforcement. He is merely carrying out what he is
sworn to do under his oath -- to protect to the extent of his
ability the rights of his client. [481 ]

															In fulfilling this responsibility, the attorney plays a vital
role in the administration of criminal justice under our
Constitution.

															In announcing these principles, we are not unmindful of the
burdens which law enforcement officials must bear, often under
trying circumstances. We also fully recognize the obligation of all
citizens to aid in enforcing the criminal laws. This Court, while
protecting individual rights, has always given ample latitude to
law enforcement agencies in the legitimate exercise of their
duties. The limits we have placed on the interrogation process
should not constitute an undue interference with a proper system of
law enforcement. As we have noted, our decision does not in any way
preclude police from carrying out their traditional investigatory
functions. Although confessions may play an important role in some
convictions, the cases before us present graphic examples of the
overstatement of the "need" for confessions. In each case,
authorities conducted interrogations ranging up to five days in
duration despite the presence, through standard investigating
practices, of considerable evidence against each defendant. [ Footnote 51 ] Further examples are
chronicled in our prior cases. See, e.g., Haynes v.
Washington , 373
U. S. 503 , 518-519 (1963); Rogers v. Richmond , 365 U. S. 534 ,
541 (1961); Malinski v. New York , 324 U. S. 401 ,402 (1945).
[ Footnote 52 ] [482 ]

															It is also urged that an unfettered right to detention for
interrogation should be allowed because it will often redound to
the benefit of the person questioned. When police inquiry
determines that there is no reason to believe that the person has
committed any crime, it is said, he will be released without need
for further formal procedures. The person who has committed no
offense, however, will be better able to clear himself after
warnings with counsel present than without. It can be assumed that,
in such circumstances, a lawyer would advise his client to talk
freely to police in order to clear himself.

															Custodial interrogation, by contrast, does not necessarily
afford the innocent an opportunity to clear themselves. A serious
consequence of the present practice of the interrogation alleged to
be beneficial for the innocent is that many arrests "for
investigation" subject large numbers of innocent persons to
detention and interrogation. In one of the cases before us, No.
584, California v. Stewart , police held four persons, who
were in the defendant's house at the time of the arrest, in jail
for five days until defendant confessed. At that time, they were
finally released. Police stated that there was "no evidence to
connect them with any crime." Available statistics on the extent of
this practice where it is condoned indicate that these four are far
from alone in being subjected to arrest, prolonged detention, and
interrogation without the requisite probable cause. [ Footnote 53 ] [483 ]

															Over the years, the Federal Bureau of Investigation has compiled
an exemplary record of effective law enforcement while advising any
suspect or arrested person, at the outset of an interview, that he
is not required to make a statement, that any statement may be used
against him in court, that the individual may obtain the services
of an attorney of his own choice, and, more recently, that he has a
right to free counsel if he is unable to pay. [ Footnote 54 ] A letter received from the
Solicitor General in response to a question from the Bench makes it
clear that the present pattern of warnings and respect for the [484 ]

															rights of the individual followed as a practice by the FBI is
consistent with the procedure which we delineate today. It
states:

															"At the oral argument of the above cause, Mr. Justice Fortas
asked whether I could provide certain information as to the
practices followed by the Federal Bureau of Investigation. I have
directed these questions to the attention of the Director of the
Federal Bureau of Investigation, and am submitting herewith a
statement of the questions and of the answers which we have
received."

															" (1) When an individual is interviewed by agents of the Bureau,
what warning is given to him?"

															" The standard warning long given by Special Agents of the FBI
to both suspects and persons under arrest is that the person has a
right to say nothing and a right to counsel, and that any statement
he does make may be used against him in court. Examples of this
warning are to be found in the Westover case at 342 F.2d
684 (1965), and Jackson v. U.S. , 337 F.2d 136 (1964), cert. den. , 380 U.S. 935."

															" After passage of the Criminal Justice Act of 1964, which
provides free counsel for Federal defendants unable to pay, we
added to our instructions to Special Agents the requirement that
any person who is under arrest for an offense under FBI
jurisdiction, or whose arrest is contemplated following the
interview, must also be advised of his right to free counsel if he
is unable to pay, and the fact that such counsel will be assigned
by the Judge. At the same time, we broadened the right to counsel
warning [485 ]

															to read counsel of his own choice, or anyone else with whom he
might wish to speak."

															" (2) When is the warning given?"

															" The FBI warning is given to a suspect at the very outset of
the interview, as shown in the Westover case, cited above.
The warning may be given to a person arrested as soon as
practicable after the arrest, as shown in the Jackson case, also cited above, and in U.S. v. Konigsberg , 336
F.2d 844 (1964), cert. den. , 379 U.S. 933, but, in any
event, it must precede the interview with the person for a
confession or admission of his own guilt."

															" (3) What is the Bureau's practice in the event that (a) the
individual requests counsel and (b) counsel appears?"

															" When the person who has been warned of his right to counsel
decides that he wishes to consult with counsel before making a
statement, the interview is terminated at that point, Shultz v.
U.S. , 351 F.2d 287 (1965). It may be continued, however, as to
all matters other than the person's own guilt or innocence. If he
is indecisive in his request for counsel, there may be some
question on whether he did or did not waive counsel. Situations of
this kind must necessarily be left to the judgment of the
interviewing Agent. For example, in Hiram v. U.S. , 354
F.2d 4 (1965), the Agent's conclusion that the person arrested had
waived his right to counsel was upheld by the courts."

															" A person being interviewed and desiring to consult counsel by
telephone must be permitted to do so, as shown in Caldwell v.
U.S. , 351 F.2d 459 (1965). When counsel appears in person, he
is permitted to confer with his client in private. " [486 ]

															" (4) What is the Bureau's practice if the individual requests
counsel, but cannot afford to retain an attorney?"

															" If any person being interviewed after warning of counsel
decides that he wishes to consult with counsel before proceeding,
further the interview is terminated, as shown above. FBI Agents do
not pass judgment on the ability of the person to pay for counsel.
They do, however, advise those who have been arrested for an
offense under FBI jurisdiction, or whose arrest is contemplated
following the interview, of a right to free counsel if they are
unable to pay, and the availability of such counsel from the Judge.
[ Footnote 55 ]"

															The practice of the FBI can readily be emulated by state and
local enforcement agencies. The argument that the FBI deals with
different crimes than are dealt with by state authorities does not
mitigate the significance of the FBI experience. [ Footnote 56 ]

															The experience in some other countries also suggests that the
danger to law enforcement in curbs on interrogation is overplayed.
The English procedure, since 1912 under the Judges' Rules, is
significant. As recently [487 ]

															strengthened, the Rules require that a cautionary warning be
given an accused by a police officer as soon as he has evidence
that affords reasonable grounds for suspicion; they also require
that any statement made be given by the accused without questioning
by police. [ Footnote 57 ] [488 ]

															The right of the individual to consult with an attorney during
this period is expressly recognized. [ Footnote 58 ]

															The safeguards present under Scottish law may be even greater
than in England. Scottish judicial decisions bar use in evidence of
most confessions obtained through police interrogation. [ Footnote 59 ] In India, confessions
made to police not in the presence of a magistrate have been
excluded [489 ]

															by rule of evidence since 1872, at a time when it operated under
British law. [ Footnote 60 ]
Identical provisions appear in the Evidence Ordinance of Ceylon,
enacted in 1895. [ Footnote
61 ] Similarly, in our country, the Uniform Code of Military
Justice has long provided that no suspect may be interrogated
without first being warned of his right not to make a statement,
and that any statement he makes may be used against him. [ Footnote 62 ] Denial of the right
to consult counsel during interrogation has also been proscribed by
military tribunals. [ Footnote
63 ] There appears to have been no marked detrimental effect on
criminal law enforcement in these jurisdictions as a result of
these rules. Conditions of law enforcement in our country are
sufficiently similar to permit reference to this experience as
assurance that lawlessness will not result from warning an
individual of his rights or allowing him to exercise them.
Moreover, it is consistent with our legal system that we give at
least as much protection to these rights as is given in the
jurisdictions described. We deal in our country with rights
grounded in a specific requirement of the Fifth Amendment of the
Constitution, [490 ]

															whereas other jurisdictions arrived at their conclusions on the
basis of principles of justice not so specifically defined. [ Footnote 64 ]

															It is also urged upon us that we withhold decision on this issue
until state legislative bodies and advisory groups have had an
opportunity to deal with these problems by rulemaking. [ Footnote 65 ] We have already pointed out
that the Constitution does not require any specific code of
procedures for protecting the privilege against self-incrimination
during custodial interrogation. Congress and the States are free to
develop their own safeguards for the privilege, so long as they are
fully as effective as those described above in informing accused
persons of their right of silence and in affording a continuous
opportunity to exercise it. In any event, however, the issues
presented are of constitutional dimensions, and must be determined
by the courts. The admissibility of a statement in the face of a
claim that it was obtained in violation of the defendant's
constitutional rights is an issue the resolution of which has long
since been undertaken by this Court. See Hopt v. Utah , 110 U. S. 574 (1884). Judicial solutions to problems of constitutional dimension
have evolved decade by decade. As courts have been presented with
the need to enforce constitutional rights, they have found means of
doing so. That was our responsibility when Escobedo was
before us, and it is our [491 ]

															responsibility today. Where rights secured by the Constitution
are involved, there can be no rulemaking or legislation which would
abrogate them. V Because of the nature of the problem and because of its
recurrent significance in numerous cases, we have to this point
discussed the relationship of the Fifth Amendment privilege to
police interrogation without specific concentration on the facts of
the cases before us. We turn now to these facts to consider the
application to these cases of the constitutional principles
discussed above. In each instance, we have concluded that
statements were obtained from the defendant under circumstances
that did not meet constitutional standards for protection of the
privilege.

															No. 759. Miranda v. Arizona On March 13, 1963, petitioner, Ernesto Miranda, was arrested at
his home and taken in custody to a Phoenix police station. He was
there identified by the complaining witness. The police then took
him to "Interrogation Room No. 2" of the detective bureau. There he
was questioned by two police officers. The officers admitted at
trial that Miranda was not advised that he had a right to have an
attorney present. [ Footnote
66 ] Two hours later, the [492 ]

															officers emerged from the interrogation room with a written
confession signed by Miranda. At the top of the statement was a
typed paragraph stating that the confession was made voluntarily,
without threats or promises of immunity and "with full knowledge of
my legal rights, understanding any statement I make may be used
against me." [ Footnote
67 ]

															At his trial before a jury, the written confession was admitted
into evidence over the objection of defense counsel, and the
officers testified to the prior oral confession made by Miranda
during the interrogation. Miranda was found guilty of kidnapping
and rape. He was sentenced to 20 to 30 years' imprisonment on each
count, the sentences to run concurrently. On appeal, the Supreme
Court of Arizona held that Miranda's constitutional rights were not
violated in obtaining the confession, and affirmed the conviction.
98 Ariz. 18, 401 P.2d 721 .
In reaching its decision, the court emphasized heavily the fact
that Miranda did not specifically request counsel.

															We reverse. From the testimony of the officers and by the
admission of respondent, it is clear that Miranda was not in any
way apprised of his right to consult with an attorney and to have
one present during the interrogation, nor was his right not to be
compelled to incriminate himself effectively protected in any other
manner. Without these warnings, the statements were inadmissible.
The mere fact that he signed a statement which contained a typed-in
clause stating that he had "full knowledge" of his "legal rights"
does not approach the knowing and intelligent waiver required to
relinquish constitutional rights. Cf. 373 U.
S. Washington , 373 U.S. [493 ]

															503, 512-513 (1963); Haley v. Ohio , 332 U. S. 596 , 601 (1948)
(opinion of MR JUSTICE DOUGLAS).

															No. 760. Vignera v. New York Petitioner, Michael Vignera, was picked up by New York police on
October 14, 1960, in connection with the robbery three days earlier
of a Brooklyn dress shop. They took him to the 17th Detective Squad
headquarters in Manhattan. Sometime thereafter, he was taken to the
66th Detective Squad. There a detective questioned Vignera with
respect to the robbery. Vignera orally admitted the robbery to the
detective. The detective was asked on cross-examination at trial by
defense counsel whether Vignera was warned of his right to counsel
before being interrogated. The prosecution objected to the
question, and the trial judge sustained the objection. Thus, the
defense was precluded from making any showing that warnings had not
been given. While at the 66th Detective Squad, Vignera was
identified by the store owner and a saleslady as the man who robbed
the dress shop. At about 3 p.m., he was formally arrested. The
police then transported him to still another station, the 70th
Precinct in Brooklyn, "for detention." At 11 p.m., Vignera was
questioned by an assistant district attorney in the presence of a
hearing reporter, who transcribed the questions and Vignera's
answers. This verbatim account of these proceedings contains no
statement of any warnings given by the assistant district attorney.
At Vignera's trial on a charge of first degree robbery, the
detective testified as to the oral confession. The transcription of
the statement taken was also introduced in evidence. At the
conclusion of the testimony, the trial judge charged the jury in
part as follows:

															"The law doesn't say that the confession is void or invalidated
because the police officer didn't advise the defendant as to his
rights. Did you hear what [494 ]

															I said? I am telling you what the law of the State of New York
is."

															Vignera was found guilty of first degree robbery. He was
subsequently adjudged a third-felony offender and sentenced to 30
to 60 years' imprisonment. [ Footnote 68 ] The conviction was affirmed without opinion
by the Appellate Division, Second Department, 21 App.Div.2d 752,
252 N.Y.S.2d 19, and by the Court of Appeals, also without opinion,
15 N.Y.2d 970, 207 N.E.2d 527, 259 N.Y.S.2d 857, remittitur
amended , 16 N.Y.2d 614, 209 N.E.2d 110, 261 N.Y. .2d 65. In
argument to the Court of Appeals, the State contended that Vignera
had no constitutional right to be advised of his right to counsel
or his privilege against self-incrimination.

															We reverse. The foregoing indicates that Vignera was not warned
of any of his rights before the questioning by the detective and by
the assistant district attorney. No other steps were taken to
protect these rights. Thus, he was not effectively apprised of his
Fifth Amendment privilege or of his right to have counsel present,
and his statements are inadmissible.

															No. 761. Westover v. United States At approximately 9:45 p.m. on March 20, 1963, petitioner, Carl
Calvin Westover, was arrested by local police in Kansas City as a
suspect in two Kansas City robberies. A report was also received
from the FBI that he was wanted on a felony charge in California.
The local authorities took him to a police station and placed him
in a line-up on the local charges, and, at about 11:45 p.m., he was
booked. Kansas City police interrogated Westover [495 ]

															on the night of his arrest. He denied any knowledge of criminal
activities. The next day, local officers interrogated him again
throughout the morning. Shortly before noon, they informed the FBI
that they were through interrogating Westover and that the FBI
could proceed to interrogate him. There is nothing in the record to
indicate that Westover was ever given any warning as to his rights
by local police. At noon, three special agents of the FBI continued
the interrogation in a private interview room of the Kansas City
Police Department, this time with respect to the robbery of a
savings and loan association and bank in Sacramento, California.
After two or two and one-half hours, Westover signed separate
confessions to each of these two robberies which had been prepared
by one of the agents during the interrogation. At trial, one of the
agents testified, and a paragraph on each of the statements states,
that the agents advised Westover that he did not have to make a
statement, that any statement he made could be used against him,
and that he had the right to see an attorney.

															Westover was tried by a jury in federal court and convicted of
the California robberies. His statements were introduced at trial.
He was sentenced to 15 years' imprisonment on each count, the
sentences to run consecutively. On appeal, the conviction was
affirmed by the Court of Appeals for the Ninth Circuit. 342 F.2d
684.

															We reverse. On the facts of this case, we cannot find that
Westover knowingly and intelligently waived his right to remain
silent and his right to consult with counsel prior to the time he
made the statement. [ Footnote
69 ] At the [496 ]

															time the FBI agents began questioning Westover, he had been in
custody for over 14 hours, and had been interrogated at length
during that period. The FBI interrogation began immediately upon
the conclusion of the interrogation by Kansas City police, and was
conducted in local police headquarters. Although the two law
enforcement authorities are legally distinct, and the crimes for
which they interrogated Westover were different, the impact on him
was that of a continuous period of questioning. There is no
evidence of any warning given prior to the FBI interrogation, nor
is there any evidence of an articulated waiver of rights after the
FBI commenced its interrogation. The record simply shows that the
defendant did, in fact, confess a short time after being turned
over to the FBI following interrogation by local police. Despite
the fact that the FBI agents gave warnings at the outset of their
interview, from Westover's point of view, the warnings came at the
end of the interrogation process. In these circumstances, an
intelligent waiver of constitutional rights cannot be assumed.

															We do not suggest that law enforcement authorities are precluded
from questioning any individual who has been held for a period of
time by other authorities and interrogated by them without
appropriate warnings. A different case would be presented if an
accused were taken into custody by the second authority, removed
both in time and place from his original surroundings, and then
adequately advised of his rights and given an opportunity to
exercise them. But here, the FBI interrogation was conducted
immediately following the state interrogation in the same police
station -- in the same compelling surroundings. Thus, in obtaining
a confession from Westover [497 ]

															the federal authorities were the beneficiaries of the pressure
applied by the local in-custody interrogation. In these
circumstances, the giving of warnings alone was not sufficient to
protect the privilege.

															No. 584. California v. Stewart In the course of investigating a series of purse-snatch
robberies in which one of the victims had died of injuries
inflicted by her assailant, respondent, Roy Allen Stewart, was
pointed out to Los Angeles police as the endorser of dividend
checks taken in one of the robberies. At about 7:15 p.m., January
31, 1963, police officers went to Stewart's house and arrested him.
One of the officers asked Stewart if they could search the house,
to which he replied, "Go ahead." The search turned up various items
taken from the five robbery victims. At the time of Stewart's
arrest, police also arrested Stewart's wife and three other persons
who were visiting him. These four were jailed along with Stewart,
and were interrogated. Stewart was taken to the University Station
of the Los Angeles Police Department, where he was placed in a
cell. During the next five days, police interrogated Stewart on
nine different occasions. Except during the first interrogation
session, when he was confronted with an accusing witness, Stewart
was isolated with his interrogators.

															During the ninth interrogation session, Stewart admitted that he
had robbed the deceased and stated that he had not meant to hurt
her. Police then brought Stewart before a magistrate for the first
time. Since there was no evidence to connect them with any crime,
the police then released the other four persons arrested with
him.

															Nothing in the record specifically indicates whether Stewart was
or was not advised of his right to remain silent or his right to
counsel. In a number of instances, [498 ]

															however, the interrogating officers were asked to recount
everything that was said during the interrogations. None indicated
that Stewart was ever advised of his rights.

															Stewart was charged with kidnapping to commit robbery, rape, and
murder. At his trial, transcripts of the first interrogation and
the confession at the last interrogation were introduced in
evidence. The jury found Stewart guilty of robbery and first degree
murder, and fixed the penalty as death. On appeal, the Supreme
Court of California reversed. 62 Cal. 2d
571 , 400 P.2d 97, 43 Cal. Rptr. 201. It held that, under this
Court's decision in Escobedo , Stewart should have been
advised of his right to remain silent and of his right to counsel,
and that it would not presume in the face of a silent record that
the police advised Stewart of his rights. [ Footnote 70 ]

															We affirm. [ Footnote 71 ]
In dealing with custodial interrogation, we will not presume that a
defendant has been effectively apprised of his rights and that his
privilege against self-incrimination has been adequately
safeguarded on a record that does not show that any warnings have
been given or that any effective alternative has been employed. Nor
can a knowing and intelligent waiver of [499 ]

															these rights be assumed on a silent record. Furthermore,
Stewart's steadfast denial of the alleged offenses through eight of
the nine interrogations over a period of five days is subject to no
other construction than that he was compelled by persistent
interrogation to forgo his Fifth Amendment privilege.

															Therefore, in accordance with the foregoing, the judgments of
the Supreme Court Of Arizona in No. 759, of the New York Court of
Appeals in No. 760, and of the Court of Appeals for the Ninth
Circuit in No. 761, are reversed. The judgment of the Supreme Court
of California in No. 584 is affirmed. It is so ordered. * Together with No. 760, Vignera v. New York , on
certiorari to the Court of Appeals of New York and No. 761, Westover v. United States , on certiorari to the United
States Court of Appeals for the Ninth Circuit, both argued February
28-March 1, 1966, and No. 584, California v. Stewart , on
certiorari to the Supreme Court of California, argued February
28-March 2, 1966.

															MR. JUSTICE CLARK, dissenting in Nos. 759, 760, and 761, and
concurring in the result in No. 584.

															It is with regret that I find it necessary to write in these
cases. However, I am unable to join the majority because its
opinion goes too far on too little, while my dissenting brethren do
not go quite far enough. Nor can I join in the Court's criticism of
the present practices of police and investigatory agencies as to
custodial interrogation. The materials it refers to as "police
manuals" [ Footnote 1 ] are,
as I read them, merely writings in this field by professors and
some police officers. Not one is shown by the record here to be the
official manual of any police department, much less in universal
use in crime detection. Moreover, the examples of police brutality
mentioned by the Court [ Footnote 2 ] are rare exceptions to the thousands of
cases [500 ]

															that appear every year in the law reports. The police agencies
-- all the way from municipal and state forces to the federal
bureaus -- are responsible for law enforcement and public safety in
this country. I am proud of their efforts, which, in my view, are
not fairly characterized by the Court's opinion. I The ipse dixit of the majority has no support in our
cases. Indeed, the Court admits that "we might not find the
defendants' statements [here] to have been involuntary in
traditional terms." Ante , p. 457. In short, the Court has
added more to the requirements that the accused is entitled to
consult with his lawyer and that he must be given the traditional
warning that he may remain silent and that anything that he says
may be used against him. Escobedo v. Illinois , 378 U. S. 478 , 490-491
(1964). Now the Court fashions a constitutional rule that the
police may engage in no custodial interrogation without
additionally advising the accused that he has a right under the
Fifth Amendment to the presence of counsel during interrogation and
that, if he is without funds, counsel will be furnished him. When,
at any point during an interrogation, the accused seeks
affirmatively or impliedly to invoke his rights to silence or
counsel, interrogation must be forgone or postponed. The Court
further holds that failure to follow the new procedures requires
inexorably the exclusion of any statement by the accused, as well
as the fruits thereof. Such a strict constitutional specific
inserted at the nerve center of crime detection may well kill the
patient. [ Footnote 3 ] [501 ]

															Since there is at this time a paucity of information and an
almost total lack of empirical knowledge on the practical operation
of requirements truly comparable to those announced by the
majority, I would be more restrained, lest we go too far too
fast. II Custodial interrogation has long been recognized as "undoubtedly
an essential tool in effective law enforcement." Haynes v.
Washington , 373
U. S. 503 , 515 (1963). Recognition of this fact should put us
on guard against the promulgation of doctrinaire rules. Especially
is this true where the Court finds that "the Constitution has
prescribed" its holding, and where the light of our past cases,
from Hopt v. Utah , 110 U. S. 574 (1884),
down to Haynes v. Washington, supra , is to [502 ]

															the contrary. Indeed, even in Escobedo , the Court never
hinted that an affirmative "waiver" was a prerequisite to
questioning; that the burden of proof as to waiver was on the
prosecution; that the presence of counsel -- absent a waiver --
during interrogation was required; that a waiver can be withdrawn
at the will of the accused; that counsel must be furnished during
an accusatory stage to those unable to pay; nor that admissions and
exculpatory statements are "confessions." To require all those
things at one gulp should cause the Court to choke over more cases
than Crooker v. California , 357 U. S. 433 (1958), and Cicenia v. Lagay , 357 U. S. 504 (1958),
which it expressly overrules today.

															The rule prior to today -- as Mr. Justice Goldberg, the author
of the Court's opinion in Escobedo , stated it in Haynes v. Washington -- depended upon "a totality of
circumstances evidencing an involuntary . . . admission
of guilt." 373 U.S. at 373 U.S.
514 . And he concluded:

															"Of course, detection and solution of crime is, at best, a
difficult and arduous task requiring determination and persistence
on the part of all responsible officers charged with the duty of
law enforcement. And certainly we do not mean to suggest that all
interrogation of witnesses and suspects is impermissible. Such
questioning is undoubtedly an essential tool in effective law
enforcement. The line between proper and permissible police conduct
and techniques and methods offensive to due process is, at best, a
difficult one to draw, particularly in cases such as this, where it
is necessary to make fine judgments as to the effect of
psychologically coercive pressures and inducements on the mind and
will of an accused. . . . We are here impelled to
the conclusion, from all of the facts presented, that the bounds of
due process have been exceeded." Id. at 373 U.S.
514 -515. [503 ] III I would continue to follow that rule. Under the "totality of
circumstances" rule of which my Brother Goldberg spoke in Haynes , I would consider in each case whether the police
officer, prior to custodial interrogation, added the warning that
the suspect might have counsel present at the interrogation, and,
further, that a court would appoint one at his request if he was
too poor to employ counsel. In the absence of warnings, the burden
would be on the State to prove that counsel was knowingly and
intelligently waived or that, in the totality of the circumstances,
including the failure to give the necessary warnings, the
confession was clearly voluntary.

															Rather than employing the arbitrary Fifth Amendment rule [ Footnote 4 ] which the Court lays
down, I would follow the more pliable dictates of the Due Process
Clauses of the Fifth and Fourteenth Amendments which we are
accustomed to administering, and which we know from our cases are
effective instruments in protecting persons in police custody. In
this way, we would not be acting in the dark, nor, in one full
sweep, changing the traditional rules of custodial interrogation
which this Court has for so long recognized as a justifiable and
proper tool in balancing individual rights against the rights of
society. It will be soon enough to go further when we are able to
appraise with somewhat better accuracy the effect of such a
holding.

															I would affirm the convictions in Miranda v. Arizona ,
No. 759; Vignera v. New York , No. 760, and Westover v.
United States , No. 761. In each of those cases, I find from
the circumstances no warrant for reversal. In [504 ] California v. Stewart , No. 584, I would dismiss the
writ of certiorari for want of a final judgment, 28 U.S.C. §
1257(3) (1964 ed.); but, if the merits are to be reached, I would
affirm on the ground that the State failed to fulfill its burden,
in the absence of a showing that appropriate warnings were given,
of proving a waiver or a totality of circumstances showing
voluntariness. Should there be a retrial, I would leave the State
free to attempt to prove these elements.

															MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE
WHITE join, dissenting.

															I believe the decision of the Court represents poor
constitutional law and entails harmful consequences for the country
at large. How serious these consequences may prove to be, only time
can tell. But the basic flaws in the Court's justification seem to
me readily apparent now, once all sides of the problem are
considered. I . INTRODUCTION

															At the outset, it is well to note exactly what is required by
the Court's new constitutional code of rules for confessions. The
foremost requirement, upon which later admissibility of a
confession depends, is that a four-fold warning be given to a
person in custody before he is questioned, namely, that he has a
right to remain silent, that anything he says may be used against
him, that he has a right to have present an attorney during the
questioning, and that, if indigent he has a right to a lawyer
without charge. To forgo these rights, some affirmative statement
of rejection is seemingly required, and threats, tricks, or
cajolings to obtain this waiver are forbidden. If, before or during
questioning, the suspect seeks to invoke his right to remain
silent, interrogation must be forgone or cease; a request for
counsel [505 ]

															brings about the same result until a lawyer is procured.
Finally, there are a miscellany of minor directives, for example,
the burden of proof of waiver is on the State, admissions and
exculpatory statements are treated just like confessions,
withdrawal of a waiver is always permitted, and so forth. [ Footnote 1 ]

															While the fine points of this scheme are far less clear than the
Court admits, the tenor is quite apparent. The new rules are not
designed to guard against police brutality or other unmistakably
banned forms of coercion. Those who use third-degree tactics and
deny them in court are equally able and destined to lie as
skillfully about warnings and waivers. Rather, the thrust of the
new rules is to negate all pressures, to reinforce the nervous or
ignorant suspect, and ultimately to discourage any confession at
all. The aim, in short, is toward "voluntariness" in a utopian
sense, or, to view it from a different angle, voluntariness with a
vengeance.

															To incorporate this notion into the Constitution requires a
strained reading of history and precedent and a disregard of the
very pragmatic concerns that alone may on occasion justify such
strains. I believe that reasoned examination will show that the Due
Process Clauses provide an adequate tool for coping with
confessions ,and that, even if the Fifth Amendment privilege
against self-incrimination be invoked, its precedents, taken as a
whole, do not sustain the present rules. Viewed as a choice based
on pure policy, these new rules prove to be a highly debatable, if
not one-sided, appraisal of the competing interests, imposed over
widespread objection, at the very time when judicial restraint is
most called for by the circumstances. [506 ] II . CONSTITUTIONAL PREMISES

															It is most fitting to begin an inquiry into the constitutional
precedents by surveying the limits on confessions the Court has
evolved under the Due Process Clause of the Fourteenth Amendment.
This is so because these cases show that there exists a workable
and effective means of dealing with confessions in a judicial
manner; because the cases are the baseline from which the Court now
departs, and so serve to measure the actual, as opposed to the
professed, distance it travels, and because examination of them
helps reveal how the Court has coasted into its present
position.

															The earliest confession cases in this Court emerged from federal
prosecutions, and were settled on a nonconstitutional basis, the
Court adopting the common law rule that the absence of inducements,
promises, and threats made a confession voluntary and admissible. Hopt v. Utah , 110 U. S. 574 ; Pierce
v. United States , 160 U. S. 355 . While a
later case said the Fifth Amendment privilege controlled
admissibility, this proposition was not itself developed in
subsequent decisions. [ Footnote 2 ] The Court did, however, heighten the test of
admissibility in federal trials to one of voluntariness "in fact," Wan v. [507 ] United States , 266 U. S. 1 , 14 (quoted, ante p. 462), and then, by and large, left federal judges
to apply the same standards the Court began to derive in a string
of state court cases.

															This new line of decisions, testing admissibility by the Due
Process Clause, began in 1936 with Brown v. Mississippi , 297 U. S. 278 ,
and must now embrace somewhat more than 30 full opinions of the
Court. [ Footnote 3 ] While
the voluntariness rubric was repeated in many instances, e.g.,
Lyons v. Oklahoma , 322 U. S. 596 , the Court
never pinned it down to a single meaning, but, on the contrary,
infused it with a number of different values. To travel quickly
over the main themes, there was an initial emphasis on reliability, e.g., Ward v. Texas , 316 U. S. 547 ,
supplemented by concern over the legality and fairness of the
police practices, e.g., Ashcraft v. Tennessee , 322 U. S. 143 , in an
"accusatorial" system of law enforcement, Watts v.
Indiana , 338 U.
S. 49 , 54, and eventually by close attention to the
individual's state of mind and capacity for effective choice, e.g., Gallegos v. Colorado , 370 U. S. 49 . The outcome
was a continuing reevaluation on the facts of each case of how
much pressure on the suspect was permissible. [ Footnote 4 ] [508 ]

															Among the criteria often taken into account were threats or
imminent danger, e.g., Payne v. Arkansas , 356 U. S. 560 , physical
deprivations such as lack of sleep or food, e.g., Reck v.
Pate , 367 U. S.
433 , repeated or extended interrogation, e.g., Chambers v.
Florida , 309 U.
S. 227 , limits on access to counsel or friends, Crooker v.
California , 357
U. S. 433 ; Cicenia v. Lagay , 357 U. S. 504 , length and
illegality of detention under state law, e.g., Haynes v.
Washington , 373
U. S. 503 , and individual weakness or incapacities, Lynumn
v. Illinois , 372
U. S. 528 . Apart from direct physical coercion, however, no
single default or fixed combination of defaults guaranteed
exclusion, and synopses of the cases would serve little use,
because the overall gauge has been steadily changing, usually in
the direction of restricting admissibility. But to mark just what
point had been reached before the Court jumped the rails in Escobedo v. Illinois , 378 U. S. 478 , it is
worth capsulizing the then-recent case of Haynes v.
Washington , 373
U. S. 503 . There, Haynes had been held some 16 or more hours in
violation of state law before signing the disputed confession, had
received no warnings of any kind, and, despite requests, had been
refused access to his wife or to counsel, the police indicating
that access would be allowed after a confession. Emphasizing
especially this last inducement and rejecting some contrary indicia
of voluntariness, the Court in a 5-to-4 decision, held the
confession inadmissible.

															There are several relevant lessons to be drawn from this
constitutional history. The first is that, with over 25 years of
precedent, the Court has developed an elaborate, sophisticated, and
sensitive approach to admissibility of confessions. It is
"judicial" in its treatment of one case at a time, see Culombe
v. Connecticut , 367 U. S. 568 , 635
(concurring opinion of THE CHIEF JUSTICE), flexible in its ability
to respond to the endless mutations of fact presented, and ever
more familiar to the lower courts. [509 ]

															Of course, strict certainty is not obtained in this developing
process, but this is often so with constitutional principles, and
disagreement is usually confined to that borderland of close cases
where it matters least.

															The second point is that, in practice and, from time to time, in
principle, the Court has given ample recognition to society's
interest in suspect questioning as an instrument of law
enforcement. Cases countenancing quite significant pressures can be
cited without difficulty, [ Footnote 5 ] and the lower courts may often have been yet
more tolerant. Of course, the limitations imposed today were
rejected by necessary implication in case after case, the right to
warnings having been explicitly rebuffed in this Court many years
ago. Powers v. United States , 223 U. S. 303 ; Wilson
v. United States , 162 U. S. 613 . As
recently as Haynes v. Washington , 373 U. S. 503 , 515, the
Court openly acknowledged that questioning of witnesses and
suspects "is undoubtedly an essential tool in effective law
enforcement." Accord, Crooker v. California , 357 U. S. 433 , 441.

															Finally, the cases disclose that the language in many of the
opinions overstates the actual course of decision. It has been
said, for example, that an admissible confession must be made by
the suspect "in the unfettered exercise of his own will," Malloy v. Hogan , 378 U. S. 1 , 8, and that "a
prisoner is not to be made the deluded instrument of his own
conviction,'" Culombe v. Connecticut , 367 U. S. 568 , 581
(Frankfurter, J., announcing the Court's judgment and an opinion).
Though often repeated, such principles are rarely observed in full
measure. Even the word "voluntary" may be deemed some [510 ]

															what misleading, especially when one considers many of the
confessions that have been brought under its umbrella. See,
e.g., supra , n. 5. The tendency to overstate may be laid in
part to the flagrant facts often before the Court; but, in any
event, one must recognize how it has tempered attitudes and lent
some color of authority to the approach now taken by the Court.

															I turn now to the Court's asserted reliance on the Fifth
Amendment, an approach which I frankly regard as a tromp
l'oeil. The Court's opinion, in my view, reveals no adequate
basis for extending the Fifth Amendment's privilege against
self-incrimination to the police station. Far more important, it
fails to show that the Court's new rules are well supported, let
alone compelled, by Fifth Amendment precedents. Instead, the new
rules actually derive from quotation and analogy drawn from
precedents under the Sixth Amendment, which should properly have no
bearing on police interrogation.

															The Court's opening contention, that the Fifth Amendment governs
police station confessions, is perhaps not an impermissible
extension of the law but it has little to commend itself in the
present circumstances. Historically, the privilege against
self-incrimination did not bear at all on the use of extra-legal
confessions, for which distinct standards evolved; indeed,

															"the history of the two principles is wide apart, differing by
one hundred years in origin, and derived through separate lines of
precedents. . . ."

															8 Wigmore, Evidence § 2266, at 401 (McNaughton rev.1961).
Practice under the two doctrines has also differed in a number of
important respects. [ Footnote
6 ] [511 ]

															Even those who would readily enlarge the privilege must concede
some linguistic difficulties, since the Fifth Amendment, in terms,
proscribes only compelling any person "in any criminal case to be a
witness against himself." Cf. Kamisar, Equal Justice in
the Gatehouses and Mansions of American Criminal Procedure, in
Criminal Justice in Our Time 1, 25-26 (1965).

															Though weighty, I do not say these points and similar ones are
conclusive, for, as the Court reiterates, the privilege embodies
basic principles always capable of expansion. [ Footnote 7 ] Certainly the privilege does
represent a protective concern for the accused and an emphasis upon
accusatorial, rather than inquisitorial, values in law enforcement,
although this is similarly true of other limitations such as the
grand jury requirement and the reasonable doubt standard.
Accusatorial values, however, have openly been absorbed into the
due process standard governing confessions; this, indeed, is why,
at present, "the kinship of the two rules [governing confessions
and self-incrimination] is too apparent for denial." McCormick,
Evidence 155 (1954). Since extension of the general principle has
already occurred, to insist that the privilege applies as such
serves only to carry over inapposite historical details and
engaging rhetoric and to obscure the policy choices to be made in
regulating confessions.

															Having decided that the Fifth Amendment privilege does apply in
the police station, the Court reveals that the privilege imposes
more exacting restrictions than does the Fourteenth Amendment's
voluntariness test. [ Footnote
8 ] [512 ]

															It then emerges from a discussion of Escobedo that the
Fifth Amendment requires, for an admissible confession, that it be
given by one distinctly aware of his right not to speak and
shielded from "the compelling atmosphere" of interrogation. See
ante pp. 465-466. From these key premises, the Court finally
develops the safeguards of warning, counsel, and so forth. I do not
believe these premises are sustained by precedents under the Fifth
Amendment. [ Footnote
9 ]

															The more important premise is that pressure on the suspect must
be eliminated, though it be only the subtle influence of the
atmosphere and surroundings. The Fifth Amendment, however, has
never been thought to forbid all pressure to incriminate one's self
in the situations covered by it. On the contrary, it has been held
that failure to incriminate one's self can result in denial of
removal of one's case from state to federal court, Maryland v.
Soper , 270 U. S.
9 ; in refusal of a military commission, Orloff v.
Willoughby , 345
U. S. 83 ; in denial of a discharge in bankruptcy, Kaufman
v. Hurwitz , 176 F.2d 210, and in numerous other adverse
consequences. See 8 Wigmore, Evidence § 2272, at 441-444,
n. 18 (McNaughton rev.1961); Maguire, Evidence of Guilt § 2.062
(1959). This is not to say that, short of jail or torture, any
sanction is permissible in any case; policy and history alike may
impose sharp limits. See, e.g. , [513 ] Griffin v. California , 380 U. S. 609 . However,
the Court's unspoken assumption that any pressure violates
the privilege is not supported by the precedents, and it has failed
to show why the Fifth Amendment prohibits that relatively mild
pressure the Due Process Clause permits.

															The Court appears similarly wrong in thinking that precise
knowledge of one's rights is a settled prerequisite under the Fifth
Amendment to the loss of its protections. A number of lower federal
court cases have held that grand jury witnesses need not always be
warned of their privilege, e.g., United States v. Scully ,
225 F.2d 113, 116, and Wigmore states this to be the better rule
for trial witnesses. See 8 Wigmore, Evidence § 2269
(McNaughton rev.1961). Cf. Henry v. Mississippi , 379 U. S. 443 , 451-452
(waiver of constitutional rights by counsel despite defendant's
ignorance held allowable). No Fifth Amendment precedent is cited
for the Court's contrary view. There might, of course, be reasons
apart from Fifth Amendment precedent for requiring warning or any
other safeguard on questioning, but that is a different matter
entirely. See infra pp. 516-517.

															A closing word must be said about the Assistance of Counsel
Clause of the Sixth Amendment, which is never expressly relied on
by the Court, but whose judicial precedents turn out to be
linchpins of the confession rules announced today. To support its
requirement of a knowing and intelligent waiver, the Court cites Johnson v. Zerbst , 304 U. S. 458 , ante p. 475; appointment of counsel for the indigent
suspect is tied to Gideon v. Wainwright , 372 U. S. 335 , and Douglas v. California , 372 U. S. 353 , ante p. 473; the silent-record doctrine is borrowed from Carnley v. Cochran , 369 U. S. 506 , ante p. 475, as is the right to an express offer of
counsel, ante p. 471. All these cases imparting glosses to
the Sixth Amendment concerned counsel at trial or on appeal. While
the Court finds no pertinent difference between judicial
proceedings and police interrogation, I believe [514 ]

															the differences are so vast as to disqualify wholly the Sixth
Amendment precedents as suitable analogies in the present cases.
[ Footnote 10 ]

															The only attempt in this Court to carry the right to counsel
into the stationhouse occurred in Escobedo , the Court
repeating several times that that stage was no less "critical" than
trial itself. See 378 U.S. 485-488. This is hardly
persuasive when we consider that a grand jury inquiry, the filing
of a certiorari petition, and certainly the purchase of narcotics
by an undercover agent from a prospective defendant may all be
equally "critical," yet provision of counsel and advice on that
score have never been thought compelled by the Constitution in such
cases. The sound reason why this right is so freely extended for a
criminal trial is the severe injustice risked by confronting an
untrained defendant with a range of technical points of law,
evidence, and tactics familiar to the prosecutor, but not to
himself. This danger shrinks markedly in the police station, where,
indeed, the lawyer, in fulfilling his professional
responsibilities, of necessity may become an obstacle to
truthfinding. See infra , n. 12. The Court's summary
citation of the Sixth Amendment cases here seems to me best
described as

															"the domino method of constitutional adjudication
. . . , wherein every explanatory statement in a previous
opinion is made the basis for extension to a wholly different
situation."

															Friendly, supra , n. 10, at 950. III . POLICY CONSIDERATIONS

															Examined as an expression of public policy, the Court's new
regime proves so dubious that there can be no due [515 ]

															compensation for its weakness in constitutional law. The
foregoing discussion has shown, I think, how mistaken is the Court
in implying that the Constitution has struck the balance in favor
of the approach the Court takes. Ante , p. 479. Rather,
precedent reveals that the Fourteenth Amendment, in practice, has
been construed to strike a different balance, that the Fifth
Amendment gives the Court little solid support in this context, and
that the Sixth Amendment should have no bearing at all. Legal
history has been stretched before to satisfy deep needs of society.
In this instance, however, the Court has not and cannot make the
powerful showing that its new rules are plainly desirable in the
context of our society, something which is surely demanded before
those rules are engrafted onto the Constitution and imposed on
every State and county in the land.

															Without at all subscribing to the generally black picture of
police conduct painted by the Court, I think it must be frankly
recognized at the outset that police questioning allowable under
due process precedents may inherently entail some pressure on the
suspect, and may seek advantage in his ignorance or weaknesses. The
atmosphere and questioning techniques, proper and fair though they
be, can, in themselves, exert a tug on the suspect to confess, and,
in this light,

															"[t]o speak of any confessions of crime made after arrest as
being 'voluntary' or 'uncoerced' is somewhat inaccurate, although
traditional. A confession is wholly and incontestably voluntary
only if a guilty person gives himself up to the law and becomes his
own accuser." Ashcraft v. Tennessee , 322 U. S. 143 , 161
(Jackson, J., dissenting). Until today, the role of the
Constitution has been only to sift out undue pressure, not to
assure spontaneous confessions. [ Footnote 11 ] [516 ]

															The Court's new rules aim to offset these minor pressures and
disadvantages intrinsic to any kind of police interrogation. The
rules do not serve due process interests in preventing blatant
coercion, since, as I noted earlier, they do nothing to contain the
policeman who is prepared to lie from the start. The rules work for
reliability in confessions almost only in the Pickwickian sense
that they can prevent some from being given at all. [ Footnote 12 ] In short, the benefit
of this new regime is simply to lessen or wipe out the inherent
compulsion and inequalities to which the Court devotes some nine
pages of description. Ante , pp. 448-456.

															What the Court largely ignores is that its rules impair, if they
will not eventually serve wholly to frustrate, an instrument of law
enforcement that has long and quite reasonably been thought worth
the price paid for it. [ Footnote 13 ] There can be little doubt that the Court's
new code would markedly decrease the number of confessions. To warn
the suspect that he may remain silent and remind him that his
confession may be used in court are minor obstructions. To require
also an express waiver by the suspect and an end to questioning
whenever he demurs [517 ]

															must heavily handicap questioning. And to suggest or provide
counsel for the suspect simply invites the end of the
interrogation. See supra , n. 12.

															How much harm this decision will inflict on law enforcement
cannot fairly be predicted with accuracy. Evidence on the role of
confessions is notoriously incomplete, see Developments, supra , n. 2, at 941-944, and little is added by the
Court's reference to the FBI experience and the resources believed
wasted in interrogation. See infra , n.19, and text. We do
know that some crimes cannot be solved without confessions, that
ample expert testimony attests to their importance in crime
control, [ Footnote 14 ]
and that the Court is taking a real risk with society's welfare in
imposing its new regime on the country. The social costs of crime
are too great to call the new rules anything but a hazardous
experimentation.

															While passing over the costs and risks of its experiment, the
Court portrays the evils of normal police questioning in terms
which I think are exaggerated. Albeit stringently confined by the
due process standards, interrogation is no doubt often inconvenient
and unpleasant for the suspect. However, it is no less so for a man
to be arrested and jailed, to have his house searched, or to stand
trial in court, yet all this may properly happen to the most
innocent, given probable cause, a warrant, or an indictment.
Society has always paid a stiff price for law and order, and
peaceful interrogation is not one of the dark moments of the
law.

															This brief statement of the competing considerations seems to me
ample proof that the Court's preference is highly debatable, at
best, and therefore not to be read into [518 ]

															the Constitution. However, it may make the analysis more graphic
to consider the actual facts of one of the four cases reversed by
the Court. Miranda v. Arizona serves best, being neither
the hardest nor easiest of the four under the Court's standards.
[ Footnote 15 ]

															On March 3, 1963, an 18-year-old girl was kidnapped and forcibly
raped near Phoenix, Arizona. Ten days later, on the morning of
March 13, petitioner Miranda was arrested and taken to the police
station. At this time, Miranda was 23 years old, indigent, and
educated to the extent of completing half the ninth grade. He had
"an emotional illness" of the schizophrenic type, according to the
doctor who eventually examined him; the doctor's report also stated
that Miranda was "alert and oriented as to time, place, and
person," intelligent within normal limits, competent to stand
trial, and sane within the legal definition. At the police station,
the victim picked Miranda out of a lineup, and two officers then
took him into a separate room to interrogate him, starting about
11:30 a.m. Though at first denying his guilt, within a short time,
Miranda gave a detailed oral confession, and then wrote out in his
own hand and signed a brief statement admitting and describing the
crime. All this was accomplished in two hours or less, without any
force, threats or promises, and -- I will assume this, though the
record is uncertain, ante 491-492 and nn 66-67 -- without any effective warnings at all Miranda's oral and written confessions are now held inadmissible
under the Court's new rules. One is entitled to feel astonished
that the Constitution can be read to produce this result. These
confessions were obtained [519 ]

															during brief daytime questioning conducted by two officers and
unmarked by any of the traditional indicia of coercion. They
assured a conviction for a brutal and unsettling crime, for which
the police had and quite possibly could obtain little evidence
other than the victim's identifications, evidence which is
frequently unreliable. There was, in sum, a legitimate purpose, no
perceptible unfairness, and certainly little risk of injustice in
the interrogation. Yet the resulting confessions, and the
responsible course of police practice they represent, are to be
sacrificed to the Court's own finespun conception of fairness,
which I seriously doubt is shared by many thinking citizens in this
country. [ Footnote
16 ]

															The tenor of judicial opinion also falls well short of
supporting the Court's new approach. Although Escobedo has
widely been interpreted as an open invitation to lower courts to
rewrite the law of confessions, a significant heavy majority of the
state and federal decisions in point have sought quite narrow
interpretations. [ Footnote
17 ] Of [520 ]

															the courts that have accepted the invitation, it is hard to know
how many have felt compelled by their best guess as to this Court's
likely construction; but none of the state decisions saw fit to
rely on the state privilege against self-incrimination, and no
decision at all has gone as far as this Court goes today. [ Footnote 18 ]

															It is also instructive to compare the attitude in this case of
those responsible for law enforcement with the official views that
existed when the Court undertook three major revisions of
prosecutorial practice prior to this case, Johnson v.
Zerbst , 304 U.
S. 458 , Mapp v. Ohio , 367 U. S. 643 , and Gideon v. Wainwright , 372 U. S. 335 . In Johnson , which established that appointed counsel must be
offered the indigent in federal criminal trials, the Federal
Government all but conceded the basic issue, which had, in fact,
been recently fixed as Department of Justice policy. See Beaney, Right to Counsel 29-30, 342 (1955). In Mapp , which
imposed the exclusionary rule on the States for Fourth Amendment
violations, more than half of the States had themselves already
adopted some such rule. See 367 U.S. at 651. In Gideon , which extended Johnson v. Zerbst to the
States, an amicus brief was filed by 22 States and
Commonwealths urging that course; only two States besides that of
the respondent came forward to protest. See 372 U.S. at
345. By contrast, in this case, new restrictions on police [521 ]

															questioning have been opposed by the United States and in an amicus brief signed by 27 States and Commonwealths, not
including the three other States which are parties. No State in the
country has urged this Court to impose the newly announced rules,
nor has any State chosen to go nearly so far on its own.

															The Court, in closing its general discussion, invokes the
practice in federal and foreign jurisdictions as lending weight to
its new curbs on confessions for all the States. A brief resume
will suffice to show that none of these jurisdictions has struck so
one-sided a balance as the Court does today. Heaviest reliance is
placed on the FBI practice. Differing circumstances may make this
comparison quite untrustworthy, [ Footnote 19 ] but, in any event, the FBI falls sensibly
short of the Court's formalistic rules. For example, there is no
indication that FBI agents must obtain an affirmative "waiver"
before they pursue their questioning. Nor is it clear that one
invoking his right to silence may not be prevailed upon to change
his mind. And the warning as to appointed counsel apparently
indicates only that one will be assigned by the judge when the
suspect appears before him; the thrust of the Court's rules is to
induce the suspect to obtain appointed counsel before continuing
the interview. See ante pp. 484-486. Apparently, American
military practice, briefly mentioned by the Court, has these same
limits, and is still less favorable to the suspect than the FBI
warning, making no mention of appointed counsel. Developments, supra , n. 2, at 1084-1089.

															The law of the foreign countries described by the Court also
reflects a more moderate conception of the rights of [522 ]

															the accused as against those of society when other data are
considered. Concededly, the English experience is most relevant. In
that country, a caution as to silence, but not counsel, has long
been mandated by the "Judges' Rules," which also place other
somewhat imprecise limits on police cross-examination of suspects.
However, in the court's discretion, confessions can be, and
apparently quite frequently are, admitted in evidence despite
disregard of the Judges' Rules, so long as they are found voluntary
under the common law test. Moreover, the check that exists on the
use of pretrial statements is counterbalanced by the evident
admissibility of fruits of an illegal confession and by the judge's
often-used authority to comment adversely on the defendant's
failure to testify. [ Footnote 20 ] India, Ceylon and Scotland are the other
examples chosen by the Court. In India and Ceylon, the general ban
on police-adduced confessions cited by the Court is subject to a
major exception: if evidence is uncovered by police questioning, it
is fully admissible at trial along with the confession itself, so
far as it relates to the evidence and is not blatantly coerced. See Developments, supra , n. 2, at 1106-1110; Reg. v. Ramasamy [1965] A.C. 1 (P.C.). Scotland's limits
on interrogation do measure up to the Court's; however, restrained
comment at trial on the defendant's failure to take the stand is
allowed the judge, and, in many other respects, Scotch law
redresses the prosecutor's disadvantage in ways not permitted in
this country. [ Footnote
21 ] The Court ends its survey by imputing [523 ]

															added strength to our privilege against self-incrimination
since, by contrast to other countries, it is embodied in a written
Constitution. Considering the liberties the Court has today taken
with constitutional history and precedent, few will find this
emphasis persuasive.

															In closing this necessarily truncated discussion of policy
considerations attending the new confession rules, some reference
must be made to their ironic untimeliness. There is now in progress
in this country a massive reexamination of criminal law enforcement
procedures on a scale never before witnessed. Participants in this
undertaking include a Special Committee of the American Bar
Association, under the chairmanship of Chief Judge Lumbard of the
Court of Appeals for the Second Circuit; a distinguished study
group of the American Law Institute, headed by Professors Vorenberg
and Bator of the Harvard Law School, and the President's Commission
on Law Enforcement and Administration of Justice, under the
leadership of the Attorney General of the United States. [ Footnote 22 ] Studies are
also being conducted by the District of Columbia Crime Commission,
the Georgetown Law Center, and by others equipped to do practical
research. [ Footnote
23 ] There are also signs that legislatures in some of the
States may be preparing to reexamine the problem before us. [ Footnote 24 ] [524 ]

															It is no secret that concern has been expressed lest long-range
and lasting reforms be frustrated by this Court's too rapid
departure from existing constitutional standards. Despite the
Court's disclaimer, the practical effect of the decision made today
must inevitably be to handicap seriously sound efforts at reform,
not least by removing options necessary to a just compromise of
competing interests. Of course, legislative reform is rarely speedy
or unanimous, though this Court has been more patient in the past.
[ Footnote 25 ] But the
legislative reforms, when they come, would have the vast advantage
of empirical data and comprehensive study, they would allow
experimentation and use of solutions not open to the courts, and
they would restore the initiative in criminal law reform to those
forums where it truly belongs. IV . CONCLUSIONS

															All four of the cases involved here present express claims that
confessions were inadmissible not because of coercion in the
traditional due process sense, but solely because of lack of
counsel or lack of warnings concerning counsel and silence. For the
reasons stated in this opinion, I would adhere to the due process
test and reject the new requirements inaugurated by the Court. On
this premise, my disposition of each of these cases can be stated
briefly.

															In two of the three cases coming from state courts, Miranda
v. Arizona (No. 759) and Vignera v. New York (No.
760), the confessions were held admissible, and no other errors
worth comment are alleged by petitioners. [525 ]

															I would affirm in these two cases. The other state case is California v. Stewart (No. 584), where the state supreme
court held the confession inadmissible, and reversed the
conviction. In that case, I would dismiss the writ of certiorari on
the ground that no final judgment is before us, 28 U.S.C. 1257
(1964 ed.); putting aside the new trial open to the State in any
event, the confession itself has not even been finally excluded,
since the California Supreme Court left the State free to show
proof of a waiver. If the merits of the decision in Stewart be reached, then I believe it should be reversed,
and the case remanded so the state supreme court may pass on the
other claims available to respondent.

															In the federal case, Westover v. United States (No.
761), a number of issues are raised by petitioner apart from the
one already dealt with in this dissent. None of these other claims
appears to me tenable, nor in this context to warrant extended
discussion. It is urged that the confession was also inadmissible
because not voluntary, even measured by due process standards, and
because federal-state cooperation brought the McNabb-Mallory rule into play under Anderson v. United
States , 318 U.
S. 350 . However, the facts alleged fall well short of coercion,
in my view, and I believe the involvement of federal agents in
petitioner's arrest and detention by the State too slight to invoke Anderson. I agree with the Government that the admission
of the evidence now protested by petitioner was, at most, harmless
error, and two final contentions -- one involving weight of the
evidence and another improper prosecutor comment -- seem to me
without merit. I would therefore affirm Westover's conviction.

															In conclusion: nothing in the letter or the spirit of the
Constitution or in the precedents squares with the heavy-handed and
one-sided action that is so precipitously [526 ]

															taken by the Court in the name of fulfilling its constitutional
responsibilities. The foray which the Court makes today brings to
mind the wise and farsighted words of Mr. Justice Jackson in Douglas v. Jeannette , 319 U. S. 157 , 181
(separate opinion):

															"This Court is forever adding new stories to the temples of
constitutional law, and the temples have a way of collapsing when
one story too many is added."

															MR. JUSTICE WHITE, with whom MR. JUSTICE HARLAN and MR. JUSTICE
STEWART join, dissenting. I The proposition that the privilege against self-incrimination
forbids in-custody interrogation without the warnings specified in
the majority opinion and without a clear waiver of counsel has no
significant support in the history of the privilege or in the
language of the Fifth Amendment. As for the English authorities and
the common law history, the privilege, firmly established in the
second half of the seventeenth century, was never applied except to
prohibit compelled judicial interrogations. The rule excluding
coerced confessions matured about 100 years later,

															"[b]ut there is nothing in the reports to suggest that the
theory has its roots in the privilege against self-incrimination.
And, so far as the cases reveal, the privilege, as such, seems to
have been given effect only in judicial proceedings, including the
preliminary examinations by authorized magistrates."

															Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev.
1, 18 (1949).

															Our own constitutional provision provides that no person "shall
be compelled in any criminal case to be a witness against himself."
These words, when

															"[c]onsidered in the light to be shed by grammar and the
dictionary . . . , appear to signify simply that nobody
shall be [527 ]

															compelled to give oral testimony against himself in a criminal
proceeding under way in which he is defendant."

															Corwin, The Supreme Court's Construction of the
Self-Incrimination Clause, 29 Mich.L.Rev. 1, 2. And there is very
little in the surrounding circumstances of the adoption of the
Fifth Amendment or in the provisions of the then existing state
constitutions or in state practice which would give the
constitutional provision any broader meaning. Mayers, The Federal
Witness' Privilege Against Self-Incrimination: Constitutional or
Common-Law? 4 American Journal of Legal History 107 (1960). Such a
construction, however, was considerably narrower than the privilege
at common law, and, when eventually faced with the issues, the
Court extended the constitutional privilege to the compulsory
production of books and papers, to the ordinary witness before the
grand jury, and to witnesses generally. Boyd v. United
States , 116 U.
S. 616 , and Counselman v. Hitchcock , 142 U. S. 547 . Both rules
had solid support in common law history, if not in the history of
our own constitutional provision.

															A few years later, the Fifth Amendment privilege was similarly
extended to encompass the then well established rule against
coerced confessions:

															"In criminal trials, in the courts of the United States,
wherever a question arises whether a confession is incompetent
because not voluntary, the issue is controlled by that portion of
the Fifth Amendment to the Constitution of the United States,
commanding that no person 'shall be compelled in any criminal case
to be a witness against himself.'" Bram v. United States , 168 U. S. 532 , 542.
Although this view has found approval in other cases, Burdeau
v. McDowell , 256
U. S. 465 , 475; Powers v. United States , 223 U. S. 303 , 313; Shotwell v. United States , 371 U. S. 341 , 347, it
has also been questioned, see Brown v. Mississippi , 297 U. S. 278 ,
285; United States v.
Carignan , [528 ] 342 U. S.
36 , 41; Stein v. New York , 346 U. S. 156 , 191, n.
35, and finds scant support in either the English or American
authorities, see generally Regina v. Scott , Dears. &
Bell 47; 3 Wigmore, Evidence § 823 (3d ed.1940), at 249 ("a
confession is not rejected because of any connection with the
privilege against self-crimination"), and 250, n. 5 (particularly
criticizing Bram ); 8 Wigmore, Evidence § 2266, at 400-401
(McNaughton rev.1961). Whatever the source of the rule excluding
coerced confessions, it is clear that, prior to the application of
the privilege itself to state courts, Malloy v. Hogan , 378 U. S. 1 , the
admissibility of a confession in a state criminal prosecution was
tested by the same standards as were applied in federal
prosecutions. Id. at 6-7, 10. Bram , however, itself rejected the proposition which
the Court now espouses. The question in Bram was whether a
confession, obtained during custodial interrogation, had been
compelled, and, if such interrogation was to be deemed inherently
vulnerable, the Court's inquiry could have ended there. After
examining the English and American authorities, however, the Court
declared that:

															"In this court also, it has been settled that the mere fact that
the confession is made to a police officer, while the accused was
under arrest in or out of prison, or was drawn out by his
questions, does not necessarily render the confession involuntary,
but, as one of the circumstances, such imprisonment or
interrogation may be taken into account in determining whether or
not the statements of the prisoner were voluntary."

															168 U.S. at 558. In this respect, the Court was wholly
consistent with prior and subsequent pronouncements in this
Court.

															Thus, prior to Bram , the Court, in Hopt v.
Utah , 110 U. S.
574 , 583-587, had upheld the admissibility of a [529 ]

															confession made to police officers following arrest, the record
being silent concerning what conversation had occurred between the
officers and the defendant in the short period preceding the
confession. Relying on Hopt , the Court ruled squarely on
the issue in Sparf and Hansen v. United States , 156 U. S. 51 , 55:

															"Counsel for the accused insist that there cannot be a voluntary
statement, a free open confession, while a defendant is confined
and in irons under an accusation of having committed a capital
offence. We have not been referred to any authority in support of
that position. It is true that the fact of a prisoner's being in
custody at the time he makes a confession is a circumstance not to
be overlooked, because it bears upon the inquiry whether the
confession was voluntarily made or was extorted by threats or
violence or made under the influence of fear. But confinement or
imprisonment is not, in itself, sufficient to justify the exclusion
of a confession if it appears to have been voluntary, and was not
obtained by putting the prisoner in fear or by promises. Wharton's
Cr.Ev. 9th ed. §§ 661, 663, and authorities cited." Accord, Pierce v. United States , 160 U. S. 355 , 357.

															And in Wilson v. United States , 162 U. S. 613 , 623, the
Court had considered the significance of custodial interrogation
without any antecedent warnings regarding the right to remain
silent or the right to counsel. There, the defendant had answered
questions posed by a Commissioner, who had failed to advise him of
his rights, and his answers were held admissible over his claim of
involuntariness.

															"The fact that [a defendant] is in custody and manacled does not
necessarily render his statement involuntary, nor is that
necessarily the effect of popular excitement shortly
preceding. . . . And it is laid down [530 ]

															that it is not essential to the admissibility of a confession
that it should appear that the person was warned that what he said
would be used against him, but, on the contrary, if the confession
was voluntary, it is sufficient though it appear that he was not so
warned."

															Since Bram , the admissibility of statements made during
custodial interrogation has been frequently reiterated. Powers
v. United States , 223 U. S. 303 , cited Wilson approvingly and held admissible as voluntary
statements the accused's testimony at a preliminary hearing even
though he was not warned that what he said might be used against
him. Without any discussion of the presence or absence of warnings,
presumably because such discussion was deemed unnecessary, numerous
other cases have declared that "[t]he mere fact that a confession
was made while in the custody of the police does not render it
inadmissible," McNabb v. United States , 318 U. S. 332 , 346; accord, United States v. Mitchell , 322 U. S. 65 , despite its
having been elicited by police examination, Wan v. United
States , 266 U. S.
1 , 14; United States v. Carignan , 342 U. S. 36 , 39.
Likewise, in Crooker v. California , 357 U. S. 433 , 437, the
Court said that

															"the bare fact of police 'detention and police examination in
private of one in official state custody' does not render
involuntary a confession by the one so detained."

															And finally, in Cicenia v. Lagay , 357 U. S. 504 , a
confession obtained by police interrogation after arrest was held
voluntary even though the authorities refused to permit the
defendant to consult with his attorney. See generally Culombe
v. Connecticut , 367 U. S. 568 , 587-602
(opinion of Frankfurter, J.); 3 Wigmore, Evidence § 851, at 313 (3d
ed.1940); see also Joy, Admissibility of Confessions 38,
46 (1842).

															Only a tiny minority of our judges who have dealt with the
question, including today's majority, have considered in-custody
interrogation, without more, to be a violation of the Fifth
Amendment. And this Court, as [531 ]

															every member knows, has left standing literally thousands of
criminal convictions that rested at least in part on confessions
taken in the course of interrogation by the police after
arrest. II That the Court's holding today is neither compelled nor even
strongly suggested by the language of the Fifth Amendment, is at
odds with American and English legal history, and involves a
departure from a long line of precedent does not prove either that
the Court has exceeded its powers or that the Court is wrong or
unwise in its present reinterpretation of the Fifth Amendment. It
does, however, underscore the obvious -- that the Court has not
discovered or found the law in making today's decision, nor has it
derived it from some irrefutable sources; what it has done is to
make new law and new public policy in much the same way that it has
in the course of interpreting other great clauses of the
Constitution. [ Footnote
1 ] This is what the Court historically has done. Indeed, it is
what it must do, and will continue to do until and unless there is
some fundamental change in the constitutional distribution of
governmental powers.

															But if the Court is here and now to announce new and fundamental
policy to govern certain aspects of our affairs, it is wholly
legitimate to examine the mode of this or any other constitutional
decision in this Court, and to inquire into the advisability of its
end product in terms of the long-range interest of the country. At
the very least, the Court's text and reasoning should withstand
analysis, and be a fair exposition of the constitutional provision
which its opinion interprets. Decisions [532 ]

															like these cannot rest alone on syllogism, metaphysics or some
ill-defined notions of natural justice, although each will perhaps
play its part. In proceeding to such constructions as it now
announces, the Court should also duly consider all the factors and
interests bearing upon the cases, at least insofar as the relevant
materials are available, and, if the necessary considerations are
not treated in the record or obtainable from some other reliable
source, the Court should not proceed to formulate fundamental
policies based on speculation alone. III First, we may inquire what are the textual and factual bases of
this new fundamental rule. To reach the result announced on the
grounds it does, the Court must stay within the confines of the
Fifth Amendment, which forbids self-incrimination only if
compelled. Hence, the core of the Court's opinion is that, because
of the

															"compulsion inherent in custodial surroundings, no statement
obtained from [a] defendant [in custody] can truly be the product
of his free choice," ante at 458, absent the use of adequate protective
devices as described by the Court. However, the Court does not
point to any sudden inrush of new knowledge requiring the rejection
of 70 years' experience. Nor does it assert that its novel
conclusion reflects a changing consensus among state courts, see Mapp v. Ohio , 367 U. S. 643 , or that a
succession of cases had steadily eroded the old rule and proved it
unworkable, see Gideon v. Wainwright , 372 U. S. 335 . Rather
than asserting new knowledge, the Court concedes that it cannot
truly know what occurs during custodial questioning, because of the
innate secrecy of such proceedings. It extrapolates a picture of
what it conceives to be the norm from police investigatorial
manuals, published in 1959 and 1962 or earlier, without any attempt
to allow for adjustments in police practices that may [533 ]

															have occurred in the wake of more recent decisions of state
appellate tribunals or this Court. But even if the relentless
application of the described procedures could lead to involuntary
confessions, it most assuredly does not follow that each and every
case will disclose this kind of interrogation or this kind of
consequence. [ Footnote 2 ]
Insofar as appears from the Court's opinion, it has not examined a
single transcript of any police interrogation, let alone the
interrogation that took place in any one of these cases which it
decides today. Judged by any of the standards for empirical
investigation utilized in the social sciences, the factual basis
for the Court's premise is patently inadequate.

															Although, in the Court's view, in-custody interrogation is
inherently coercive, the Court says that the spontaneous product of
the coercion of arrest and detention is still to be deemed
voluntary. An accused, arrested on probable cause, may blurt out a
confession which will be admissible despite the fact that he is
alone and in custody, without any showing that he had any notion of
his right to remain silent or of the consequences of his admission.
Yet, under the Court's rule, if the police ask him a single
question, such as "Do you have anything to say?" or "Did you kill
your wife?", his response, if there is one, has somehow been
compelled, even if the accused has [534 ]

															been clearly warned of his right to remain silent. Common sense
informs us to the contrary. While one may say that the response was
"involuntary" in the sense the question provoked or was the
occasion for the response, and thus the defendant was induced to
speak out when he might have remained silent if not arrested and
not questioned, it is patently unsound to say the response is
compelled.

															Today's result would not follow even if it were agreed that, to
some extent, custodial interrogation is inherently coercive. See Ashcraft v. Tennessee , 322 U. S. 143 , 161
(Jackson, J., dissenting). The test has been whether the totality
of circumstances deprived the defendant of a "free choice to admit,
to deny, or to refuse to answer," Lisenba v. California , 314 U. S. 219 ,
241, and whether physical or psychological coercion was of such a
degree that "the defendant's will was overborne at the time he
confessed," Haynes v. Washington , 373 U. S. 503 , 513; Lynumn v. Illinois , 372 U. S. 528 , 534. The
duration and nature of incommunicado custody, the presence
or absence of advice concerning the defendant's constitutional
rights, and the granting or refusal of requests to communicate with
lawyers, relatives or friends have all been rightly regarded as
important data bearing on the basic inquiry. See, e.g.,
Ashcraft v. Tennessee , 322 U. S. 143 ; Haynes
v. Washington , 373 U. S. 503 . [ Footnote 3 ] [535 ]

															But it has never been suggested, until today, that such
questioning was so coercive and accused persons so lacking in
hardihood that the very first response to the very first question
following the commencement of custody must be conclusively presumed
to be the product of an overborne will.

															If the rule announced today were truly based on a conclusion
that all confessions resulting from custodial interrogation are
coerced, then it would simply have no rational foundation. Compare Tot v. United States , 319 U. S. 463 , 466; United States v. Romano , 382 U. S. 136 . A
fortiori , that would be true of the extension of the rule to
exculpatory statements, which the Court effects after a brief
discussion of why, in the Court's view, they must be deemed
incriminatory, but without any discussion of why they must be
deemed coerced. See Wilson v. United States , 162 U. S. 613 , 624. Even
if one were to postulate that the Court's concern is not that all
confessions induced by police interrogation are coerced, but rather
that some such confessions are coerced and present judicial
procedures are believed to be inadequate to identify the
confessions that are coerced and those that are not, it would still
not be essential to impose the rule that the Court has now
fashioned. Transcripts or observers could be required, specific
time limits, tailored to fit the cause, could be imposed, or other
devices could be utilized to reduce the chances that otherwise
indiscernible coercion will produce an inadmissible confession.

															On the other hand, even if one assumed that there was an
adequate factual basis for the conclusion that all confessions
obtained during in-custody interrogation are the product of
compulsion, the rule propounded by [536 ]

															the Court would still be irrational, for, apparently, it is only
if the accused is also warned of his right to counsel and waives
both that right and the right against self-incrimination that the
inherent compulsiveness of interrogation disappears. But if the
defendant may not answer without a warning a question such as
"Where were you last night?" without having his answer be a
compelled one, how can the Court ever accept his negative answer to
the question of whether he wants to consult his retained counsel or
counsel whom the court will appoint? And why, if counsel is present
and the accused nevertheless confesses, or counsel tells the
accused to tell the truth and that is what the accused does, is the
situation any less coercive insofar as the accused is concerned?
The Court apparently realizes its dilemma of foreclosing
questioning without the necessary warnings but, at the same time,
permitting the accused, sitting in the same chair in front of the
same policemen, to waive his right to consult an attorney. It
expects, however, that the accused will not often waive the right,
and, if it is claimed that he has, the State faces a severe, if not
impossible burden of proof.

															All of this makes very little sense in terms of the compulsion
which the Fifth Amendment proscribes. That amendment deals with
compelling the accused himself. It is his free will that is
involved. Confessions and incriminating admissions, as such, are
not forbidden evidence; only those which are compelled are banned.
I doubt that the Court observes these distinctions today. By
considering any answers to any interrogation to be compelled
regardless of the content and course of examination, and by
escalating the requirements to prove waiver, the Court not only
prevents the use of compelled confessions, but, for all practical
purposes, forbids interrogation except in the presence of counsel.
That is, instead of confining itself to protection of the right
against compelled [537 ]

															self-incrimination the Court has created a limited Fifth
Amendment right to counsel -- or, as the Court expresses it, a
"need for counsel to protect the Fifth Amendment
privilege. . . ." Ante at 470. The focus
then is not on the will of the accused, but on the will of counsel,
and how much influence he can have on the accused. Obviously there
is no warrant in the Fifth Amendment for thus installing counsel as
the arbiter of the privilege.

															In sum, for all the Court's expounding on the menacing
atmosphere of police interrogation procedures, it has failed to
supply any foundation for the conclusions it draws or the measures
it adopts. IV Criticism of the Court's opinion, however, cannot stop with a
demonstration that the factual and textual bases for the rule it
propounds are, at best, less than compelling. Equally relevant is
an assessment of the rule's consequences measured against community
values. The Court's duty to assess the consequences of its action
is not satisfied by the utterance of the truth that a value of our
system of criminal justice is "to respect the inviolability of the
human personality" and to require government to produce the
evidence against the accused by its own independent labors. Ante at 460. More than the human dignity of the accused is
involved; the human personality of others in the society must also
be preserved. Thus, the values reflected by the privilege are not
the sole desideratum; society's interest in the general security is
of equal weight.

															The obvious underpinning of the Court's decision is a
deep-seated distrust of all confessions. As the Court declares that
the accused may not be interrogated without counsel present, absent
a waiver of the right to counsel, and as the Court all but
admonishes the lawyer to [538 ]

															advise the accused to remain silent, the result adds up to a
judicial judgment that evidence from the accused should not be used
against him in any way, whether compelled or not. This is the not
so subtle overtone of the opinion -- that it is inherently wrong
for the police to gather evidence from the accused himself. And
this is precisely the nub of this dissent. I see nothing wrong or
immoral, and certainly nothing unconstitutional, in the police's
asking a suspect whom they have reasonable cause to arrest whether
or not he killed his wife, or in confronting him with the evidence
on which the arrest was based, at least where he has been plainly
advised that he may remain completely silent, see Escobedo v.
Illinois , 378 U.
S. 478 , 499 (dissenting opinion). Until today, "the admissions
or confessions of the prisoner, when voluntarily and freely made,
have always ranked high in the scale of incriminating evidence." Brown v. Walker , 161 U. S. 591 , 596; see also Hopt v. Utah , 110 U. S. 574 , 584-585.
Particularly when corroborated, as where the police have confirmed
the accused's disclosure of the hiding place of implements or
fruits of the crime, such confessions have the highest reliability,
and significantly contribute to the certitude with which we may
believe the accused is guilty. Moreover, it is by no means certain
that the process of confessing is injurious to the accused. To the
contrary, it may provide psychological relief, and enhance the
prospects for rehabilitation. This is not to say that the value of
respect for the inviolability of the accused's individual
personality should be accorded no weight, or that all confessions
should be indiscriminately admitted. This Court has long read the
Constitution to proscribe compelled confessions, a salutary rule
from which there should be no retreat. But I see no sound basis,
factual or otherwise, and the Court gives none, for concluding that
the present rule against the receipt of coerced confessions is
inadequate for the [539 ]

															task of sorting out inadmissible evidence, and must be replaced
by the per se rule which is now imposed. Even if the new
concept can be said to have advantages of some sort over the
present law, they are far outweighed by its likely undesirable
impact on other very relevant and important interests.

															The most basic function of any government is to provide for the
security of the individual and of his property. Lanzetta v. New
Jersey , 306 U.
S. 451 , 455. These ends of society are served by the criminal
laws which for the most part are aimed at the prevention of crime.
Without the reasonably effective performance of the task of
preventing private violence and retaliation, it is idle to talk
about human dignity and civilized values.

															The modes by which the criminal laws serve the interest in
general security are many. First, the murderer who has taken the
life of another is removed from the streets, deprived of his
liberty, and thereby prevented from repeating his offense. In view
of the statistics on recidivism in this country, [ Footnote 4 ] and of the number of
instances [540 ]

															in which apprehension occurs only after repeated offenses, no
one can sensibly claim that this aspect of the criminal law does
not prevent crime or contribute significantly to the personal
security of the ordinary citizen.

															Secondly, the swift and sure apprehension of those who refuse to
respect the personal security and dignity of their neighbor
unquestionably has its impact on others who might be similarly
tempted. That the criminal law is wholly or partly ineffective with
a segment of the population or with many of those who have been
apprehended and convicted is a very faulty basis for concluding
that it is not effective with respect to the great bulk of our
citizens, or for thinking that, without the criminal laws, [541 ]

															or in the absence of their enforcement, there would be no
increase in crime. Arguments of this nature are not borne out by
any kind of reliable evidence that I have seen to this date.

															Thirdly, the law concerns itself with those whom it has
confined. The hope and aim of modern penology, fortunately, is as
soon as possible to return the convict to society a better and more
law-abiding man than when he left. Sometimes there is success,
sometimes failure. But at least the effort is made, and it should
be made to the very maximum extent of our present and future
capabilities.

															The rule announced today will measurably weaken the ability of
the criminal law to perform these tasks. It is a deliberate
calculus to prevent interrogations, to reduce the incidence of
confessions and pleas of guilty, and to increase the number of
trials. [ Footnote 5 ]
Criminal trials, no [542 ]

															matter how efficient the police are, are not sure bets for the
prosecution, nor should they be if the evidence is not forthcoming.
Under the present law, the prosecution fails to prove its case in
about 30% of the criminal cases actually tried in the federal
courts. See Federal Offenders: 1964, supra , note
4, at 6 (Table 4), 59 (Table 1); Federal Offenders: 1963, supra , note 4, at 5 (Table 3); District of Columbia
Offenders: 1963, supra , note 4, at 2 (Table 1). But it is
something else again to remove from the ordinary criminal case all
those confessions which heretofore have been held to be free and
voluntary acts of the accused, and to thus establish a new
constitutional barrier to the ascertainment of truth by the
judicial process. There is, in my view, every reason to believe
that a good many criminal defendants who otherwise would have been
convicted on what this Court has previously thought to be the most
satisfactory kind of evidence will now, under this new version of
the Fifth Amendment, either not be tried at all or will be
acquitted if the State's evidence, minus the confession, is put to
the test of litigation.

															I have no desire whatsoever to share the responsibility for any
such impact on the present criminal process.

															In some unknown number of cases, the Court's rule will return a
killer, a rapist or other criminal to the streets and to the
environment which produced him, to repeat his crime whenever it
pleases him. As a consequence, there will not be a gain, but a
loss, in human dignity. The real concern is not the unfortunate
consequences of this new decision on the criminal law as an
abstract, disembodied series of authoritative proscriptions, but
the impact on those who rely on the public authority for
protection, and who, without it, can only engage in violent
self-help with guns, knives and the help of their neighbors
similarly inclined. There is, of [543 ]

															course, a saving factor: the next victims are uncertain, unnamed
and unrepresented in this case.

															Nor can this decision do other than have a corrosive effect on
the criminal law as an effective device to prevent crime. A major
component in its effectiveness in this regard is its swift and sure
enforcement. The easier it is to get away with rape and murder, the
less the deterrent effect on those who are inclined to attempt it.
This is still good common sense. If it were not, we should
post-haste liquidate the whole law enforcement establishment as a
useless, misguided effort to control human conduct.

															And what about the accused who has confessed or would confess in
response to simple, noncoercive questioning and whose guilt could
not otherwise be proved? Is it so clear that release is the best
thing for him in every case? Has it so unquestionably been resolved
that, in each and every case, it would be better for him not to
confess, and to return to his environment with no attempt
whatsoever to help him? I think not. It may well be that, in many
cases, it will be no less than a callous disregard for his own
welfare, as well as for the interests of his next victim.

															There is another aspect to the effect of the Court's rule on the
person whom the police have arrested on probable cause. The fact is
that he may not be guilty at all, and may be able to extricate
himself quickly and simply if he were told the circumstances of his
arrest and were asked to explain. This effort, and his release,
must now await the hiring of a lawyer or his appointment by the
court, consultation with counsel, and then a session with the
police or the prosecutor. Similarly, where probable cause exists to
arrest several suspects, as where the body of the victim is
discovered in a house having several residents, compare Johnson
v. State , 238 Md. 140, 207 A.2d 643 (1965), cert.
denied , 382 U.S. 1013, it will often [544 ]

															be true that a suspect may be cleared only through the results
of interrogation of other suspects. Here too, the release of the
innocent may be delayed by the Court's rule.

															Much of the trouble with the Court's new rule is that it will
operate indiscriminately in all criminal cases, regardless of the
severity of the crime or the circumstances involved. It applies to
every defendant, whether the professional criminal or one
committing a crime of momentary passion who is not part and parcel
of organized crime. It will slow down the investigation and the
apprehension of confederates in those cases where time is of the
essence, such as kidnapping, see Brinegar v. United
States , 338 U.
S. 160 , 183 (Jackson, J., dissenting); People v.
Modesto , 62 Cal. 2d
436 , 446, 398 P.2d 753, 759 (1965), those involving the
national security, see United States v. Drummond , 354 F.2d
132, 147 (C.A.2d Cir.1965) (en banc) (espionage case), pet. for
cert. pending , No. 1203, Misc., O.T. 1965; cf. Gessner v.
United States , 354 F.2d 726, 730, n. 10 (C.A. 10th Cir.1965)
(upholding, in espionage case, trial ruling that Government need
not submit classified portions of interrogation transcript), and
some of those involving organized crime. In the latter context, the
lawyer who arrives may also be the lawyer for the defendant's
colleagues, and can be relied upon to insure that no breach of the
organization's security takes place even though the accused may
feel that the best thing he can do is to cooperate.

															At the same time, the Court's per se approach may not
be justified on the ground that it provides a "bright line"
permitting the authorities to judge in advance whether
interrogation may safely be pursued without jeopardizing the
admissibility of any information obtained as a consequence. Nor can
it be claimed that judicial time and effort, assuming that is a
relevant consideration, [545 ]

															will be conserved because of the ease of application of the new
rule. Today's decision leaves open such questions as whether the
accused was in custody, whether his statements were spontaneous or
the product of interrogation, whether the accused has effectively
waived his rights, and whether nontestimonial evidence introduced
at trial is the fruit of statements made during a prohibited
interrogation, all of which are certain to prove productive of
uncertainty during investigation and litigation during prosecution.
For all these reasons, if further restrictions on police
interrogation are desirable at this time, a more flexible approach
makes much more sense than the Court's constitutional straitjacket,
which forecloses more discriminating treatment by legislative or
rulemaking pronouncements.

															Applying the traditional standards to the cases before the
Court, I would hold these confessions voluntary. I would therefore
affirm in Nos. 759, 760, and 761, and reverse in No. 584. Footnotes [ Footnote 1 ] Compare United States v. Childress , 347 F.2d 448 (C.A.
7th Cir.1965), with Collins v. Beto , 348 F.2d 823 (C.A.
5th Cir.1965). Compare People v. Dorado , 62 Cal. 2d
338 , 398 P.2d 361, 42 Cal. Rptr. 169 (1964), with People v.
Hartgraves , 31 Ill. 2d
375 , 202 N.E.2d 33 (1964).

															[ Footnote 2 ] See, e.g. , Enker & Elsen, Counsel for the Suspect: Massiah v. United States and Escobedo v.
Illinois , 49 Minn.L.Rev. 47 (1964); Herman, The Supreme Court
and Restrictions on Police Interrogation, 25 Ohio St.L.J. 449
(1964); Kamisar, Equal Justice in the Gatehouses and Mansions of
American Criminal Procedure, in Criminal Justice in Our Time 1
(1965); Dowling, Escobedo and Beyond: The Need for a
Fourteenth Amendment Code of Criminal Procedure, 56 J.Crim.L., C.
& P. S. 143, 156 (1965).

															The complex problems also prompted discussions by jurists. Compare Bazelon, Law, Morality, and Civil Liberties, 12
U.C.L.A.L.Rev. 13 (1964), with Friendly, The Bill of
Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929
(1965).

															[ Footnote 3 ]

															For example, the Los Angeles Police Chief stated that,

															"If the police are required . . . to . . .
establish that the defendant was apprised of his constitutional
guarantees of silence and legal counsel prior to the uttering of
any admission or confession, and that he intelligently waived these
guarantees . . . a whole Pandora's box is opened as to
under what circumstances . . . can a defendant
intelligently waive these rights. . . . Allegations
that modern criminal investigation can compensate for the lack of a
confession or admission in every criminal case is totally
absurd!"

															Parker, 40 L.A.Bar Bull. 603, 607, 642 (1965). His prosecutorial
counterpart, District Attorney Younger, stated that

															"[I]t begins to appear that many of these seemingly restrictive
decisions are going to contribute directly to a more effective,
efficient and professional level of law enforcement."

															L.A. Times, Oct. 2, 1965, p. 1. The former Police Commissioner
of New York, Michael J. Murphy, stated of Escobedo: "What the Court is doing is akin to requiring one boxer to fight
by Marquis of Queensbury rules while permitting the other to butt,
gouge and bite."

															N.Y. Times, May 14, 1965, p. 39. The former United States
Attorney for the District of Columbia, David C. Acheson, who is
presently Special Assistant to the Secretary of the Treasury (for
Enforcement), and directly in charge of the Secret Service and the
Bureau of Narcotics, observed that

															"Prosecution procedure has, at most, only the most remote causal
connection with crime. Changes in court decisions and prosecution
procedure would have about the same effect on the crime rate as an
aspirin would have on a tumor of the brain."

															Quoted in Herman, supra , n 2, at 500,
n. 270. Other views on the subject in general are collected in
Weisberg, Police Interrogation of Arrested Persons: A Skeptical
View, 52 J.Crim.L., C. & P.S. 21 (1961).

															[ Footnote 4 ]

															This is what we meant in Escobedo when we spoke of an
investigation which had focused on an accused.

															[ Footnote 5 ] See, for example , IV National Commission on Law
Observance and Enforcement, Report on Lawlessness in Law
Enforcement (1931) [Wickersham Report]; Booth, Confessions, and
Methods Employed in Procuring Them, 4 So. Calif.L.Rev. 83 (1930);
Kauper, Judicial Examination of the Accused -- A Remedy for the
Third Degree, 30 Mich.L.Rev. 1224 (1932). It is significant that
instances of third-degree treatment of prisoners almost invariably
took place during the period between arrest and preliminary
examination. Wickersham Report, at 169; Hall, The Law of Arrest in
Relation to Contemporary Social Problems, 3 U.Chi.L.Rev. 345, 357
(1936). See also Foote, Law and Police Practice:
Safeguards in the Law of Arrest, 52 Nw.U.L.Rev. 16 (1957).

															[ Footnote 6 ] Brown v. Mississippi , 297 U. S. 278 (1936); Chambers v. Florida , 309 U. S. 227 (1940); Canty v. Alabama , 309 U.S. 629 (1940); White v.
Texas , 310 U. S.
530 (1940); Vernon v. Alabama , 313 U.S. 547 (1941); Ward v. Texas , 316 U. S. 547 (1942); Ashcraft v. Tennessee , 322 U. S. 143 (1944); Malinski v. New York , 324 U. S. 401 (1945); Leyra v. Denno , 347 U. S. 556 (1954). See also Williams v. United States , 341 U. S. 97 (1951).

															[ Footnote 7 ]

															In addition, see People v. Wakat , 415 Ill. 610 , 114 N.E.2d
706 (1953); Wakat v. Harlib , 253 F.2d 59 (C.A. 7th
Cir.1958) (defendant suffering from broken bones, multiple bruises
and injuries sufficiently serious to require eight months' medical
treatment after being manhandled by five policemen); Kier v.
State , 213 Md. 556, 132 A.2d 494 (1957) (police doctor told
accused, who was strapped to a chair completely nude, that he
proposed to take hair and skin scrapings from anything that looked
like blood or sperm from various parts of his body); Bruner v.
People , 113 Colo.194, 156 P.2d 111 (1945) (defendant held in
custody over two months, deprived of food for 15 hours, forced to
submit to a lie detector test when he wanted to go to the toilet); People v. Matlock , 51 Cal. 2d
682 , 336 P.2d 505 (1959) (defendant questioned incessantly over
an evening's time, made to lie on cold board and to answer
questions whenever it appeared he was getting sleepy). Other cases
are documented in American Civil Liberties Union, Illinois
Division, Secret Detention by the Chicago Police (1959); Potts, The
Preliminary Examination and "The Third Degree," 2 Baylor L.Rev. 131
(1950); Sterling, Police Interrogation and the Psychology of
Confession, 14 J.Pub.L. 25 (1965).

															[ Footnote 8 ]

															The manuals quoted in the text following are the most recent and
representative of the texts currently available. Material of the
same nature appears in Kidd, Police Interrogation (1940); Mulbar,
Interrogation (1951); Dienstein, Technics for the Crime
Investigator 97-115 (1952). Studies concerning the observed
practices of the police appear in LaFave, Arrest: The Decision To
Take a Suspect Into Custody 244-437, 490-521 (1965); LaFave,
Detention for Investigation by the Police: An Analysis of Current
Practices, 1962 Wash.U.L.Q. 331; Barrett, Police Practices and the
Law -- From Arrest to Release or Charge, 50 Calif.L.Rev. 11 (1962);
Sterling, supra , n 7, at 47-65.

															[ Footnote 9 ]

															The methods described in Inbau & Reid, Criminal
Interrogation and Confessions (1962), are a revision and
enlargement of material presented in three prior editions of a
predecessor text, Lie Detection and Criminal Interrogation (3d
ed.1953). The authors and their associates are officers of the
Chicago Police Scientific Crime Detection Laboratory, and have had
extensive experience in writing, lecturing and speaking to law
enforcement authorities over a 20-year period. They say that the
techniques portrayed in their manuals reflect their experiences,
and are the most effective psychological stratagems to employ
during interrogations. Similarly, the techniques described in
O'Hara, Fundamentals of Criminal Investigation (1956), were gleaned
from long service as observer, lecturer in police science, and work
as a federal criminal investigator. All these texts have had rather
extensive use among law enforcement agencies and among students of
police science, with total sales and circulation of over
44,000.

															[ Footnote 10 ]

															Inbau & Reid, Criminal Interrogation and Confessions (1962),
at 1.

															[ Footnote 11 ]

															O'Hara, supra , at 99.

															[ Footnote 12 ]

															Inbau & Reid, supra , at 34-43, 87. For example, in Leyra v. Denno , 347 U. S. 556 (1954), the
interrogator-psychiatrist told the accused, "We do sometimes things
that are not right, but in a fit of temper or anger we sometimes do
things we aren't really responsible for," id. at 562, and
again, "We know that morally, you were just in anger. Morally, you
are not to be condemned," id. at 582.

															[ Footnote 13 ]

															Inbau Reid, supra , at 43-55.

															[ Footnote 14 ]

															O'Hara, supra , at 112.

															[ Footnote 15 ]

															Inbau & Reid, supra , at 40.

															[ Footnote 16 ] Ibid. [ Footnote 17 ]

															O'Hara, supra , at 104, Inbau & Reid, supra , at 58-59. See Spano v. New York , 360 U. S. 315 (1959). A
variant on the technique of creating hostility is one of
engendering fear. This is perhaps best described by the prosecuting
attorney in Malinski v. New York , 324 U. S. 401 , 407
(1945):

															"Why this talk about being undressed? Of course, they had a
right to undress him to look for bullet scars, and keep the clothes
off him. That was quite proper police procedure. That is some more
psychology -- let him sit around with a blanket on him, humiliate
him there for a while; let him sit in the corner, let him think he
is going to get a shellacking."

															[ Footnote 18 ]

															O'Hara, supra , at 105-106.

															[ Footnote 19 ] Id. at 106.

															[ Footnote 20 ]

															Inbau & Reid, supra , at 111.

															[ Footnote 21 ] Ibid. [ Footnote 22 ]

															Inbau & Reid, supra , at 112.

															[ Footnote 23 ]

															Inbau & Reid, Lie Detection and Criminal Interrogation 185
(3d ed.1953).

															[ Footnote 24 ]

															Interrogation procedures may even give rise to a false
confession. The most recent conspicuous example occurred in New
York, in 1964, when a Negro of limited intelligence confessed to
two brutal murders and a rape which he had not committed. When this
was discovered, the prosecutor was reported as saying:

															"Call it what you want -- brainwashing, hypnosis, fright. They
made him give an untrue confession. The only thing I don't believe
is that Whitmore was beaten."

															N.Y. Times, Jan. 28, 1965, p. 1, col. 5. In two other instances,
similar events had occurred. N.Y. Times, Oct. 20, 1964, p. 22, col.
1; N.Y. Times, Aug. 25, 1965, p. 1, col. 1. In general, see Borchard, Convicting the Innocent (1932); Frank &
Frank, Not Guilty (1957).

															[ Footnote 25 ]

															In the fourth confession case decided by the Court in the 1962
Term, Fay v. Noia , 372 U. S. 391 (1963), our
disposition made it unnecessary to delve at length into the facts.
The facts of the defendant's case there, however, paralleled those
of his codefendants, whose confessions were found to have resulted
from continuous and coercive interrogation for 27 hours, with
denial of requests for friends or attorney. See United States
v. Murphy , 222 F.2d 698 (C.A.2d Cir.1955) (Frank, J.); People v. Bonino , 1 N.Y.2d 752, 135 N.E.2d 51 (1956).

															[ Footnote 26 ]

															The absurdity of denying that a confession obtained under these
circumstances is compelled is aptly portrayed by an example in
Professor Sutherland's recent article, Crime and Confession, 79
Harv.L.Rev. 21, 37 (1965):

															"Suppose a well-to-do testatrix says she intends to will her
property to Elizabeth. John and James want her to bequeath it to
them instead. They capture the testatrix, put her in a carefully
designed room, out of touch with everyone but themselves and their
convenient 'witnesses,' keep her secluded there for hours while
they make insistent demands, weary her with contradictions of her
assertions that she wants to leave her money to Elizabeth, and
finally induce her to execute the will in their favor. Assume that
John and James are deeply and correctly convinced that Elizabeth is
unworthy, and will make base use of the property if she gets her
hands on it, whereas John and James have the noblest and most
righteous intentions. Would any judge of probate accept the will so
procured as the 'voluntary' act of the testatrix?"

															[ Footnote 27 ]

															Thirteenth century commentators found an analogue to the
privilege grounded in the Bible. "To sum up the matter, the
principle that no man is to be declared guilty on his own admission
is a divine decree." Maimonides, Mishneh Torah (Code of Jewish
Law), Book of Judges, Laws of the Sanhedrin, c. 18, 116, III Yale
Judaica Series 52-53. See also Lamm, The Fifth Amendment
and Its Equivalent in the Halakhah, 5 Judaism 53 (Winter 1956).

															[ Footnote 28 ] See Morgan, The Privilege Against Self-Incrimination,
34 Minn.L.Rev. 1, 9-11 (1949); 8 Wigmore, Evidence 289-295
(McNaughton rev.1961). See also Lowell, The Judicial Use
of Torture, Parts I and II, 11 Harv.L.Rev. 220, 290 (1897).

															[ Footnote 29 ] See Pittman, The Colonial and Constitutional History of
the Privilege Against Self-Incrimination in America, 21 Va.L.Rev.
763 (1935); Ullmann v. United States , 350 U. S. 422 , 445-449
(1956) (DOUGLAS, J., dissenting).

															[ Footnote 30 ] Compare Brown v. Walker , 161 U. S. 591 (1896); Quinn v. United States , 349 U. S. 155 (1955).

															[ Footnote 31 ]

															Brief for the United States, p. 28. To the same effect, see Brief for the United States, pp. 40-49, n. 44, Anderson v. United States , 318 U. S. 350 (1943);
Brief for the United States, pp. 17-18, McNabb v. United
States , 318 U.
S. 332 (1943).

															[ Footnote 32 ]

															Our decision today does not indicate in any manner, of course,
that these rules can be disregarded. When federal officials arrest
an individual, they must as always comply with the dictates of the
congressional legislation and cases thereunder. See
generally Hogan & Snee, The McNabb-Mallory Rule:
Its Rise, Rationale and Rescue, 47 Geo.L.J. 1 (1958).

															[ Footnote 33 ]

															The decisions of this Court have guaranteed the same procedural
protection for the defendant whether his confession was used in a
federal or state court. It is now axiomatic that the defendant's
constitutional rights have been violated if his conviction is
based, in whole or in part, on an involuntary confession,
regardless of its truth or falsity. Rogers v. Richmond , 365 U. S. 534 ,
544 (1961); Wan v. United States , 266 U. S. 1 (1924). This is
so even if there is ample evidence aside from the confession to
support the conviction, e.g., Malinski v. New York , 324 U. S. 401 ,
404 (1945); Bram v. United States , 168 U. S. 532 , 540-542
(1897). Both state and federal courts now adhere to trial
procedures which seek to assure a reliable and clear-cut
determination of the voluntariness of the confession offered at
trial, Jackson v. Denno , 378 U. S. 368 (1964); United States v. Carignan , 342 U. S. 36 , 38 (1951); see also Wilson v. United States , 162 U. S. 613 , 624
(1896). Appellate review is exacting, see Haynes v.
Washington , 373
U. S. 503 (1963); Blackburn v. Alabama , 361 U. S. 199 (1960).
Whether his conviction was in a federal or state court, the
defendant may secure a post-conviction hearing based on the alleged
involuntary character of his confession, provided he meets the
procedural requirements, Fay v. Noia , 372 U. S. 391 (1963); Townsend v. Sain , 372 U. S. 293 (1963). In
addition, see Murphy v. Waterfront Comm'n , 378 U. S. 52 (1964).

															[ Footnote 34 ] See Lisenba v. California , 314 U. S. 219 , 241
(1941); Ashcraft v. Tennessee , 322 U. S. 143 (1944); Malinski v. New York , 324 U. S. 401 (1945); Spano v. New York , 360 U. S. 315 (1959); Lynumn v. Illinois , 372 U. S. 528 (1963); Haynes v. Washington , 373 U. S. 503 (1963).

															[ Footnote 35 ]

															The police also prevented the attorney from consulting with his
client. Independent of any other constitutional proscription, this
action constitutes a violation of the Sixth Amendment right to the
assistance of counsel, and excludes any statement obtained in its
wake. See People v. Donovan , 13 N.Y.2d 148, 193 N.E.2d
628, 243 N.Y.S.2d 841 (1963) (Fuld, J.)

															[ Footnote 36 ] In re Groban , 352 U. S. 330 , 340-352
(1957) (BLACK, J., dissenting); Note, 73 Yale L.J. 1000, 1048-1051
(1964); Comment, 31 U.Chi.L.Rev. 313, 320 (1964) and authorities
cited.

															[ Footnote 37 ] See p. 454, supra. Lord Devlin has
commented:

															"It is probable that, even today, when there is much less
ignorance about these matters than formerly, there is still a
general belief that you must answer all questions put to you by a
policeman, or at least that it will be the worse for you if you do
not."

															Devlin, The Criminal Prosecution in England 32 (1958).

															In accord with our decision today, it is impermissible to
penalize an individual for exercising his Fifth Amendment privilege
when he is under police custodial interrogation. The prosecution
may not, therefore, use at trial the fact that he stood mute or
claimed his privilege in the face of accusation. Cf. Griffin v.
California , 380
U. S. 609 (1965); Malloy v. Hogan , 378 U. S. 1 , 8 (1964);
Comment, 31 U.Chi.L.Rev. 556 (1964); Developments in the Law --
Confessions, 79 Harv.L.Rev. 935, 1041-1044 (1966). See also
Bram v. United States , 168 U. S. 532 , 562
(1897).

															[ Footnote 38 ] Cf. Betts v. Brady , 316 U. S. 455 (1942), and
the recurrent inquiry into special circumstances it necessitated. See generally Kamisar, Betts v. Brady Twenty
Years Later: The Right to Counsel and Due Process Values, 61
Mich.L.Rev. 219 (1962).

															[ Footnote 39 ] See Herman, The Supreme Court and Restrictions on
Police Interrogation, 25 Ohio St.L.J. 440, 480 (1964).

															[ Footnote 40 ]

															Estimates of 50-90% indigency among felony defendants have been
reported. Pollock, Equal Justice in Practice, 45 Minn.L.Rev. 737,
738-739 (1961); Birzon, Kasanof & Forma, The Right to Counsel
and the Indigent Accused in Courts of Criminal Jurisdiction in New
York State, 14 Buffalo L.Rev. 428, 433 (1965).

															[ Footnote 41 ] See Kamisar, Equal Justice in the Gatehouses and
Mansions of American Criminal Procedure, in Criminal Justice in Our
Time 1, 64-81 (1965). As was stated in the Report of the Attorney
General's Committee on Poverty and the Administration of Federal
Criminal Justice 9 (1963):

															"When government chooses to exert its powers in the criminal
area, its obligation is surely no less than that of taking
reasonable measures to eliminate those factors that are irrelevant
to just administration of the law, but which, nevertheless, may
occasionally affect determinations of the accused's liability or
penalty. While government may not be required to relieve the
accused of his poverty, it may properly be required to minimize the
influence of poverty on its administration of justice."

															[ Footnote 42 ] Cf. United States ex rel. Brown v. Fay , 242 F.
Supp. 273 , 277 (D.C.S.D.N.Y.1965); People v. Witenski ,
15 N.Y.2d 392, 207 N.E.2d 358, 259 N.Y.S.2d 413 (1965).

															[ Footnote 43 ]

															While a warning that the indigent may have counsel appointed
need not be given to the person who is known to have an attorney or
is known to have ample funds to secure one, the expedient of giving
a warning is too simple, and the rights involved too important, to
engage in ex post facto inquiries into financial ability
when there is any doubt at all on that score.

															[ Footnote 44 ]

															If an individual indicates his desire to remain silent, but has
an attorney present, there may be some circumstances in which
further questioning would be permissible. In the absence of
evidence of overbearing, statements then made in the presence of
counsel might be free of the compelling influence of the
interrogation process and might fairly be construed as a waiver of
the privilege for purposes of these statements.

															[ Footnote 45 ]

															Although this Court held in Rogers v. United States , 340 U. S. 367 (1951), over strong dissent, that a witness before a grand jury may
not in certain circumstances decide to answer some questions and
then refuse to answer others, that decision has no application to
the interrogation situation we deal with today. No legislative or
judicial factfinding authority is involved here, nor is there a
possibility that the individual might make self-serving statements
of which he could make use at trial while refusing to answer
incriminating statements.

															[ Footnote 46 ]

															The distinction and its significance has been aptly described in
the opinion of a Scottish court:

															"In former times, such questioning, if undertaken, would be
conducted by police officers visiting the house or place of
business of the suspect and there questioning him, probably in the
presence of a relation or friend. However convenient the modern
practice may be, it must normally create a situation very
unfavourable to the suspect." Chalmer v. H. M. Advocate , [1954] Sess.Cas. 66, 78
(J.C.).

															[ Footnote 47 ] See People v. Dorado , 62 Cal. 2d
338 , 354, 398 P.2d 361, 371 42 Cal. Rptr. 169, 179 (1965).

															[ Footnote 48 ]

															In accordance with our holdings today and in Escobedo v.
Illinois , 378 U.
S. 478 , 492, Crooker v. California , 357 U. S. 433 (1958) and Cicenia v. Lagay , 357 U. S. 504 (1958), are
not to be followed.

															[ Footnote 49 ]

															In quoting the above from the dissenting opinion of Mr. Justice
Brandeis we, of course, do not intend to pass on the constitutional
questions involved in the Olmstead case.

															[ Footnote 50 ]

															Schaefer, Federalism and State Criminal Procedure, 70
Harv.L.Rev. 1, 26 (1956).

															[ Footnote 51 ]

															Miranda, Vignera, and Westover were identified by eyewitnesses.
Marked bills from the bank robbed were found in Westover's car.
Articles stolen from the victim as well as from several other
robbery victims were found in Stewart's home at the outset of the
investigation.

															[ Footnote 52 ]

															Dealing as we do here with constitutional standards in relation
to statements made, the existence of independent corroborating
evidence produced at trial is, of course, irrelevant to our
decisions. Haynes v. Washington , 373 U. S. 503 , 518-519
(1963); Lynumn v. Illinois , 372 U. S. 528 , 537-538
(1963); Rogers v. Richmond , 365 U. S. 534 , 541
(1961); Blackburn v. Alabama , 361 U. S. 199 , 206
(1960).

															[ Footnote 53 ] See, e.g. , Report and Recommendations of the [District
of Columbia] Commissioners' Committee on Police Arrests for
Investigation (1962); American Civil Liberties Union, Secret
Detention by the Chicago Police (1959). An extreme example of this
practice occurred in the District of Columbia in 1958. Seeking
three "stocky" young Negroes who had robbed a restaurant, police
rounded up 90 persons of that general description. Sixty-three were
held overnight before being released for lack of evidence. A man
not among the 90 arrested was ultimately charged with the crime.
Washington Daily News, January 21, 1958, p. 5, col. 1; Hearings
before a Subcommittee of the Senate Judiciary Committee on H.R.
11477, S. 2970, S. 3325, and S. 3355, 85th Cong., 2d Sess. (July
1958), pp. 40, 78.

															[ Footnote 54 ]

															In 1952, J. Edgar Hoover, Director of the Federal Bureau of
Investigation, stated:

															"Law enforcement, however, in defeating the criminal, must
maintain inviolate the historic liberties of the individual. To
turn back the criminal, yet, by so doing, destroy the dignity of
the individual, would be a hollow victory."

															" * * * *" "We can have the Constitution, the best laws in the land, and
the most honest reviews by courts -- but unless the law enforcement
profession is steeped in the democratic tradition, maintains the
highest in ethics, and makes its work a career of honor, civil
liberties will continually -- and without end -- be
violated. . . . The best protection of civil
liberties is an alert, intelligent and honest law enforcement
agency. There can be no alternative."

															" * * * *" ". . . Special Agents are taught that any suspect or
arrested person, at the outset of an interview, must be advised
that he is not required to make a statement and that any statement
given can be used against him in court. Moreover, the individual
must be informed that, if he desires, he may obtain the services of
an attorney of his own choice."

															Hoover, Civil Liberties and Law Enforcement: The Role of the
FBI, 37 Iowa L.Rev. 175, 177-182 (1952).

															[ Footnote 55 ]

															We agree that the interviewing agent must exercise his judgment
in determining whether the individual waives his right to counsel.
Because of the constitutional basis of the right, however, the
standard for waiver is necessarily high. And, of course, the
ultimate responsibility for resolving this constitutional question
lies with the courts.

															[ Footnote 56 ]

															Among the crimes within the enforcement jurisdiction of the FBI
are kidnapping, 18 U.S.C. § 1201 (1964 ed.), white slavery, 18
U.S.C. §§ 2421-2423 (1964 ed.), bank robbery, 18 U.S.C. § 2113
(1964 ed.), interstate transportation and sale of stolen property,
18 U.S.C. §§ 2311-2317 (1964 ed.), all manner of conspiracies, 18
U.S.C. § 371 (1964 ed.), and violations of civil rights 18 U.S.C.
§§ 241-242 (1964 ed.). See also 18 U.S.C. § 1114 (1964
ed.) (murder of officer or employee of the United States).

															[ Footnote 57 ]

															[1964] Crim.L.Rev. at 166-170. These Rules provide in part:

															"II. As soon as a police officer has evidence which would afford
reasonable grounds for suspecting that a person has committed an
offence, he shall caution that person or cause him to be cautioned
before putting to him any questions, or further questions, relating
to that offence."

															"The caution shall be in the following terms: "

															" You are not obliged to say anything unless you wish to do so,
but what you say may be put into writing and given in
evidence."

															"When, after being cautioned a person is being questioned, or
elects to make a statement, a record shall be kept of the time and
place at which any such questioning or statement began and ended
and of the persons present."

															"III . . . "

															" * * * * ." "(b) It is only in exceptional cases that questions relating to
the offence should be put to the accused person after he has been
charged or informed that he may be prosecuted."

															" * * * *" "IV. All written statements made after caution shall be taken in
the following manner: "

															"(a) If a person says that he wants to make a statement, he
shall be told that it is intended to make a written record of what
he says."

															"He shall always be asked whether he wishes to write down
himself what he wants to say; if he says that he cannot write, or
that he would like someone to write it for him, a police officer
may offer to write the statement for him. . . ."

															"(b) Any person writing his own statement shall be allowed to do
so without any prompting, as distinct from indicating to him what
matters are material."

															" * * * *" "(d) Whenever a police officer writes the statement, he shall
take down the exact words spoken by the person making the
statement, without putting any questions other than such as may be
needed to make the statement coherent, intelligible and relevant to
the material matters: he shall not prompt him."

															The prior Rules appear in Devlin, The Criminal Prosecution in
England 137-141 (1958).

															Despite suggestions of some laxity in enforcement of the Rules,
and despite the fact some discretion as to admissibility is
invested in the trial judge, the Rules are a significant influence
in the English criminal law enforcement system. See, e.g. ,
[1964] Crim.L.Rev. at 182, and articles collected in [1960]
Crim.L.Rev. at 298-356.

															[ Footnote 58 ]

															The introduction to the Judges' Rules states in part:

															"These Rules do not affect the principles"

															" * * * *" "(c) That every person at any stage of an investigation should
be able to communicate and to consult privately with a solicitor.
This is so even if he is in custody provided that, in such a case,
no unreasonable delay or hindrance is caused to the processes of
investigation or the administration of justice by his doing
so. . . ."

															[1964] Crim.L.Rev. at 166-167.

															[ Footnote 59 ]

															As stated by the Lord Justice General in Chalmers v. H.M
Advocate , [1954] Sess.Cas. 66, 78 (J.C.):

															"The theory of our law is that, at the stage of initial
investigation, the police may question anyone with a view to
acquiring information which may lead to the detection of the
criminal; but that, when the stage has been reached at which
suspicion, or more than suspicion, has in their view centered upon
some person as the likely perpetrator of the crime, further
interrogation of that person becomes very dangerous, and, if
carried too far, e.g. , to the point of extracting a
confession by what amounts to cross-examination, the evidence of
that confession will almost certainly be excluded. Once the accused
has been apprehended and charged, he has the statutory right to a
private interview with a solicitor and to be brought before a
magistrate with all convenient speed so that he may, if so advised,
emit a declaration in presence of his solicitor under conditions
which safeguard him against prejudice."

															[ Footnote 60 ]

															"No confession made to a police officer shall be proved as
against a person accused of any offence." Indian Evidence Act §
25.

															"No confession made by any person whilst he is in the custody of
a police officer unless it be made in the immediate presence of a
Magistrate, shall be proved as against such person."

															Indian Evidence Act § 26. See 1 Ramaswami &
Rajagopalan, Law of Evidence in India 553-569 (1962). To avoid any
continuing effect of police pressure or inducement, the Indian
Supreme Court has invalidated a confession made shortly after
police brought a suspect before a magistrate, suggesting:

															"[I]t would, we think, be reasonable to insist upon giving an
accused person at least 24 hours to decide whether or not he should
make a confession." Sarwan Singh v. State of Punjab , 44 All India Rep.
1957, Sup.Ct. 637, 644.

															[ Footnote 61 ]

															I Legislative Enactments of Ceylon 211 (1958).

															[ Footnote 62 ]

															10 U.S.C. § 831(b) (1964 ed.)

															[ Footnote 63 ] United States v. Rose , 24 CMR 251 (1957); United
States v. Gunnels , 23 CMR 354 (1957).

															[ Footnote 64 ]

															Although no constitution existed at the time confessions were
excluded by rule of evidence in 1872, India now has a written
constitution which includes the provision that "No person accused
of any offence shall be compelled to be a witness against himself."
Constitution of India, Article 20(3). See Tope, The
Constitution of India 63-67 (1960).

															[ Footnote 65 ]

															Brief for United States in No. 761, Westover v. United
States , pp. 44-47; Brief for the State of New York as amicus curiae , pp. 35-39. See also Brief for the
National District Attorneys Association as amicus curiae ,
pp. 23-26.

															[ Footnote 66 ]

															Miranda was also convicted in a separate trial on an unrelated
robbery charge not presented here for review. A statement
introduced at that trial was obtained from Miranda during the same
interrogation which resulted in the confession involved here. At
the robbery trial, one officer testified that, during the
interrogation, he did not tell Miranda that anything he said would
be held against him or that he could consult with an attorney. The
other officer stated that they had both told Miranda that anything
he said would be used against him and that he was not required by
law to tell them anything.

															[ Footnote 67 ]

															One of the officers testified that he read this paragraph to
Miranda. Apparently, however, he did not do so until after Miranda
had confessed orally.

															[ Footnote 68 ]

															Vignera thereafter successfully attacked the validity of one of
the prior convictions, Vignera v. Wilkins , Civ. 9901
(D.C.W.D.N.Y. Dec. 31, 1961) (unreported), but was then resentenced
as a second-felony offender to the same term of imprisonment as the
original sentence. R. 31-33.

															[ Footnote 69 ]

															The failure of defense counsel to object to the introduction of
the confession at trial, noted by the Court of Appeals and
emphasized by the Solicitor General, does not preclude our
consideration of the issue. Since the trial was held prior to our
decision in Escobedo and, of course, prior to our decision
today making the objection available, the failure to object at
trial does not constitute a waiver of the claim. See, e.g.,
United States ex rel. Angelet v. Fay , 333 F.2d 12, 16 (C.A.2d
Cir.1964), aff'd , 381 U. S. 654 (1965). Cf. Ziffrin, Inc. v. United States , 318 U. S. 73 , 78
(1943).

															[ Footnote 70 ]

															Because of this disposition of the case, the California Supreme
Court did not reach the claims that the confession was coerced by
police threats to hold his ailing wife in custody until he
confessed, that there was no hearing as required by Jackson v.
Denno , 378 U. S.
368 (1964), and that the trial judge gave an instruction
condemned by the California Supreme Court's decision in People
v. Morse , 60 Cal. 2d
631 , 388 P.2d 33, 36 Cal. Rptr. 201 (1964).

															[ Footnote 71 ]

															After certiorari was granted in this case, respondent moved to
dismiss on the ground that there was no final judgment from which
the State could appeal, since the judgment below directed that he
be retried. In the event respondent was successful in obtaining an
acquittal on retrial, however, under California law the State would
have no appeal. Satisfied that, in these circumstances, the
decision below constituted a final judgment under 28 U.S.C. §
1257(3) (1964 ed.), we denied the motion. 383 U.S. 903.

															[ Footnote 1 ] E.g. , Inbau & Reid, Criminal Interrogation and
Confessions (196); O'Hara, Fundamentals Of Criminal Investigation
(1956); Dienstein, Technics for the Crime Investigator (1952);
Mulbar, Interrogation (1951); Kidd, Police Interrogation
(1940).

															[ Footnote 2 ]

															As developed by my Brother HARLAN, post pp. 506-514,
such cases, with the exception of the long-discredited decision in Bram v. United States , 168 U. S. 532 (1897),
were adequately treated in terms of due process.

															[ Footnote 3 ]

															The Court points to England, Scotland, Ceylon and India as
having equally rigid rules. As in Brother HARLAN points out, post , pp. 521-523, the Court is mistaken in this regard,
for it overlooks counterbalancing prosecutorial advantages.
Moreover, the requirements of the Federal Bureau of Investigation
do not appear from the Solicitor General's letter, ante ,
pp. 484-46, to be as strict as those imposed today in at least two
respects: (1) The offer of counsel is articulated only as "a right
to counsel"; nothing is said about a right to have counsel present
at the custodial interrogation. ( See also the examples
cited by the Solicitor General, Westover v. United States ,
342 F.2d 684, 685 (1965) ("right to consult counsel"); Jackson
v. United States , 337 F.2d 136, 138 (1964) (accused "entitled
to an attorney").) Indeed, the practice is that, whenever the
suspect

															"decides that he wishes to consult with counsel before making a
statement, the interview is terminated at that
point. . . . When counsel appears in person, he is
permitted to confer with his client in private."

															This clearly indicates that the FBI does not warn that counsel
may be present during custodial interrogation. (2) The Solicitor
General's letter states:

															"[T]hose who have been arrested for an offense under FBI
jurisdiction, or whose arrest is contemplated following the
interview, [are advised] of a right to free counsel if they are
unable to pay, and the availability of such counsel from the
Judge."

															So phrased, this warning does not indicate that the agent will
secure counsel. Rather, the statement may well be interpreted by
the suspect to mean that the burden is placed upon himself, and
that he may have counsel appointed only when brought before the
judge or at trial -- but not at custodial interrogation. As I view
the FBI practice, it is not as broad as the one laid down today by
the Court.

															[ Footnote 4 ]

															In my view, there is "no significant support" in our cases for
the holding of the Court today that the Fifth Amendment privilege,
in effect, forbids custodial interrogation. For a discussion of
this point, see the dissenting opinion of my Brother WHITE, post pp. 526-531.

															[ Footnote 1 ]

															My discussion in this opinion is directed to the main questions
decided by the Court and necessary to its decision; in ignoring
some of the collateral points, I do not mean to imply
agreement.

															[ Footnote 2 ]

															The case was Bram v. United States , 168 U. S. 532 (quoted ante p. 461). Its historical premises were afterwards
disproved by Wigmore, who concluded "that no assertions could be
more unfounded." 3 Wigmore, Evidence § 823, at 250, n. 5 (3d
ed.1940). The Court in United States v. Carignan , 342 U. S. 36 , 41, declined
to choose between Bram and Wigmore, and Stein v. New
York , 346 U. S.
156 , 191, n. 35, cast further doubt on Bram. There
are, however, several Court opinions which assume in dicta the
relevance of the Fifth Amendment privilege to confessions. Burdeau v. McDowell , 256 U. S. 465 , 475; see Shotwell Mfg. Co. v. United States , 371 U. S. 341 , 347. On Bram and the federal confession cases generally, see Developments in the Law -- Confessions, 79 Harv.L.Rev.
935, 959-961 (1966).

															[ Footnote 3 ]

															Comment, 31 U.Chi.L.Rev. 313 & n. 1 (1964), states that, by
the 1963 Term, 33 state coerced confession cases had been decided
by this Court, apart from per curiams. Spano v. New York , 360 U. S. 315 ,
321, n. 2, collects 28 cases.

															[ Footnote 4 ]

															Bator & Vorenberg, Arrest, Detention, Interrogation and the
Right to Counsel, 66 Col.L.Rev. 62, 73 (1966):

															"In fact, the concept of involuntariness seems to be used by the
courts as a shorthand to refer to practices which are repellent to
civilized standards of decency or which, under the circumstances,
are thought to apply a degree of pressure to an individual which
unfairly impairs his capacity to make a rational choice." See Herman, The Supreme Court and Restrictions on
Police Interrogation, 25 Ohio St.L.J. 449, 452-458 (1964);
Developments, supra , n. 2, at 964-984.

															[ Footnote 5 ] See the cases synopsized in Herman, supra , n.
4, at 456, nn. 36-39. One not too distant example is Stroble v.
California , 343
U. S. 181 , in which the suspect was kicked and threatened after
his arrest, questioned a little later for two hours, and isolated
from a lawyer trying to see him; the resulting confession was held
admissible.

															[ Footnote 6 ]

															Among the examples given in 8 Wigmore, Evidence § 2266, at 401
(McNaughton rev.1961), are these: the privilege applies to any
witness, civil or criminal, but the confession rule protects only
criminal defendants; the privilege deals only with compulsion,
while the confession rule may exclude statements obtained by trick
or promise, and where the privilege has been nullified -- as by the
English Bankruptcy Act -- the confession rule may still
operate.

															[ Footnote 7 ]

															Additionally, there are precedents and even historical arguments
that can be arrayed in favor of bringing extra-legal questioning
within the privilege. See generally Maguire, Evidence of
Guilt § 2.03, at 15-16 (1959).

															[ Footnote 8 ]

															This, of course, is implicit in the Court's introductory
announcement that "[o]ur decision in Malloy v. Hogan , 378 U. S. 1 (1964)
[extending the Fifth Amendment privilege to the States]
necessitates an examination of the scope of the privilege in state
cases as well." Ante , p. 463. It is also inconsistent with Malloy itself, in which extension of the Fifth Amendment
to the States rested in part on the view that the Due Process
Clause restriction on state confessions has, in recent years, been
"the same standard" as that imposed in federal prosecutions
assertedly by the Fifth Amendment. 378 U.S. at 7.

															[ Footnote 9 ]

															I lay aside Escobedo itself; it contains no reasoning
or even general conclusions addressed to the Fifth Amendment, and
indeed its citation in this regard seems surprising in view of Escobedo's primary reliance on the Sixth Amendment.

															[ Footnote 10 ]

															Since the Court conspicuously does not assert that the Sixth
Amendment itself warrants its new police interrogation rules, there
is no reason now to draw out the extremely powerful historical and
precedential evidence that the Amendment will bear no such meaning. See generally Friendly, The Bill of Rights as a Code of
Criminal Procedure, 53 Calif.L.Rev. 9'9, 943-948 (1965).

															[ Footnote 11 ] See supra , n. 4, and text. Of course, the use of terms
like voluntariness involves questions of law and terminology quite
as much as questions of fact. See Collins v. Beto , 348
F.2d 823, 832 (concurring opinion); Bator & Vorenberg, supra , n. 4, at 72-73.

															[ Footnote 12 ]

															The Court's vision of a lawyer "mitigat[ing] the dangers of
untrustworthiness" ( ante , p. 470) by witnessing coercion
and assisting accuracy in the confession is largely a fancy; for if
counsel arrives, there is rarely going to be a police station
confession. Watt v. Indiana , 338 U. S. 49 , 59 (separate
opinion of Jackson, J.): "[A]ny lawyer worth his salt will tell the
suspect in no uncertain terms to make no statement to police under
any circumstances." See Enker & Elsen, Counsel for the
Suspect, 49 Minn.L.Rev. 47, 66-68 (1964).

															[ Footnote 13 ]

															This need is, of course, what makes so misleading the Court's
comparison of a probate judge readily setting aside as involuntary
the will of an old lady badgered and beleaguered by the new heirs. Ante , pp. 457-458, n. 26. With wills, there is no public
interest save in a totally free choice; with confessions, the
solution of crime is a countervailing gain however the balance is
resolved.

															[ Footnote 14 ] See, e.g. , the voluminous citations to congressional
committee testimony and other sources collected in Culombe v.
Connecticut , 367
U. S. 568 , 578-579 (Frankfurter, J., announcing the Court's
judgment and an opinion).

															[ Footnote 15 ]

															In Westover , a seasoned criminal was practically given
the Court's full complement of warnings, and did not heed them. The Stewart case, on the other hand, involves long detention
and successive questioning. In Vignera , the facts are
complicated, and the record somewhat incomplete.

															[ Footnote 16 ]

															"[J]ustice, though due to the accused, is due to the accuser
also. The concept of fairness must not be strained till it is
narrowed to a filament. We are to keep the balance true." Snyder v. Massachusetts , 291 U. S. 97 , 122
(Cardozo, J.).

															[ Footnote 17 ]

															A narrow reading is given in: United States v.
Robinson , 354 F.2d 109 (C.A.2d Cir.); Davis v. North
Carolina , 339 F.2d 770 (C.A.4th Cir.); Edwards v.
Holman , 342 F.2d 679 (C.A. 5th Cir.); United States ex
rel. Townsend v. Ogilvie , 334 F.2d 837 (C.A. 7th Cir.); People v. Hartgraves , 31 Ill. 2d
375 , 202 N.E.2d
33 ; State v. Fox , ___ Iowa ___, 131 N.W.2d 684 ; Rowe v. Commonwealth , 394
S.W.2d 751 (Ky.); Parker v. Warden , 236 Md. 236, 203
A.2d 418; State v. Howard , 383 S.W.2d
701 (Mo.); Bean v. State , ___ Nev. ___, 398 P.2d 251 ; State v. Hodgson , 44 N.J. 151, 207
A.2d 542 ; People v. Gunner , 15 N.Y.2d 226, 205 N.E.2d
852; Commonwealth ex rel. Linde v. Maroney , 416 Pa. 331,
206 A.2d 288; Browne v. State , 24 Wis.2d 491, 131 N.W.2d
169.

															An ample reading is given in: United States ex rel. Russo v.
New Jersey , 351 F.2d 429 (C.A.3d Cir.); Wright v.
Dickson , 336 F.2d 878 (C.A. 9th Cir.); People v.
Dorado , 62 Cal. 2d
338 , 398 P.2d 361; State v. Dufour , ___ R.I. ___, 206
A.2d 82 ; State v. Neely , 239 Ore. 487, 395 P.2d 557, modified , 398 P.2d
482 .

															The cases in both categories are those readily available; there
are certainly many others.

															[ Footnote 18 ]

															For instance, compare the requirements of the catalytic
case of People v. Dorado , 62 Cal. 2d
338 , 398 P.2d 361, with those laid down today. See
also Traynor, The Devils of Due Process in Criminal Detection,
Detention, and Trial, 33 U.Chi.L.Rev. 657, 670.

															[ Footnote 19 ]

															The Court's obiter dictum notwithstanding, ante p. 486, there is some basis for believing that the
staple of FBI criminal work differs importantly from much crime
within the ken of local police. The skill and resources of the FBI
may also be unusual.

															[ Footnote 20 ]

															For citations and discussion covering each of these points, see Developments, supra , n. 2, at 1091-1097, and
Enker & Elsen, supra , n. 12, at 80 & n. 94.

															[ Footnote 21 ]

															On comment, see Hardin, Other Answers: Search and
Seizure, Coerced Confession, and Criminal Trial in Scotland, 113
U.Pa.L.Rev. 165, 181 and nn. 96-97 (1964). Other examples are less
stringent search and seizure rules and no automatic exclusion for
violation of them, id. at 167-169; guilt based on majority
jury verdicts, id. at 185, and pretrial discovery of
evidence on both sides, id. at 175.

															[ Footnote 22 ]

															Of particular relevance is the ALI's drafting of a Model Code of
Pre-Arraignment Procedure, now in its first tentative draft. While
the ABA and National Commission studies have wider scope, the
former is lending its advice to the ALI project and the executive
director of the latter is one of the reporters for the Model
Code.

															[ Footnote 23 ] See brief for the United States in Westover ,
p. 45. The N.Y. Times, June 3, 1966, p. 41 (late city ed.) reported
that the Ford Foundation has awarded $1,100,000 for a five-year
study of arrests and confession in New York.

															[ Footnote 24 ]

															The New York Assembly recently passed a bill to require certain
warnings before an admissible confession is taken, though the rules
are less strict than are the Court's. N.Y. Times, May 24, 1966, p.
35 (late city ed.).

															[ Footnote 25 ]

															The Court waited 12 years after Wolf v. Colorado , 338 U. S. 25 ,
declared privacy against improper state intrusions to be
constitutionally safeguarded before it concluded, in Mapp v.
Ohio , 367 U. S.
643 , that adequate state remedies had not been provided to
protect this interest, so the exclusionary rule was necessary.

															[ Footnote 1 ]

															Of course, the Court does not deny that it is departing from
prior precedent; it expressly overrules Crooker and Cicenia, ante at 479, n. 48, and it acknowledges that, in
the instant "cases, we might not find the defendants' statements to
have been involuntary in traditional terms," ante at
457.

															[ Footnote 2 ]

															In fact, the type of sustained interrogation described by the
Court appears to be the exception, rather than the rule. A survey
of 399 cases in one city found that, in almost half of the cases,
the interrogation lasted less than 30 minutes. Barrett, Police
Practices and the Law -- From Arrest to Release or Charge, 50
Calif.L.Rev. 11, 41-45 (1962). Questioning tends to be confused and
sporadic, and is usually concentrated on confrontations with
witnesses or new items of evidence as these are obtained by
officers conducting the investigation. See generally LaFave, Arrest: The Decision to Take a Suspect into Custody 386
(1965); ALI, A Model Code of Pre-Arraignment Procedure, Commentary
§ 5.01, at 170, n. 4 (Tent.Draft No. 1, 1966).

															[ Footnote 3 ]

															By contrast, the Court indicates that, in applying this new
rule, it "will not pause to inquire in individual cases whether the
defendant was aware of his rights without a warning being given." Ante at 468. The reason given is that assessment of the
knowledge of the defendant based on information as to age,
education, intelligence, or prior contact with authorities can
never be more than speculation, while a warning is a clear-cut
fact. But the officers' claim that they gave the requisite warnings
may be disputed, and facts respecting the defendant's prior
experience may be undisputed, and be of such a nature as to
virtually preclude any doubt that the defendant knew of his rights. See United States v. Bolden , 355 F.2d 453 (C.A. 7th
Cir.1965), petition for cert. pending , No. 1146, O.T. 1965
(Secret Service agent); People v. Du Bont , 235 Cal. App.
2d 844 , 45 Cal. Rptr. 717, pet. for cert. pending No.
1053, Misc., O.T. 1965 (former police officer).

															[ Footnote 4 ]

															Precise statistics on the extent of recidivism are unavailable,
in part because not all crimes are solved and in part because
criminal records of convictions in different jurisdictions are not
brought together by a central data collection agency. Beginning in
1963, however, the Federal Bureau of Investigation began collating
data on "Careers in Crime," which it publishes in its Uniform Crime
Reports. Of 92,869 offenders processed in 1963 and 1964, 76% had a
prior arrest record on some charge. Over a period of 10 years, the
group had accumulated 434,000 charges. FBI, Uniform Crime Reports
-- 1964, 27-28. In 1963 and 1964, between 23% and 25% of all
offenders sentenced in 88 federal district courts (excluding the
District Court for the District of Columbia) whose criminal records
were reported had previously been sentenced to a term of
imprisonment of 13 months or more. Approximately an additional 40%
had a prior record less than prison (juvenile record, probation
record, etc.). Administrative Office of the United States Courts,
Federal Offenders in the United States District Courts: 1964, x, 36
(hereinafter cited as Federal Offenders: 1964); Administrative
Office of the United States Courts, Federal Offenders in the United
States District Courts: 1963, 25-27 (hereinafter cited as Federal
Offenders: 1963). During the same two years in the District Court
for the District of Columbia, between 28% and 35% of those
sentenced had prior prison records, and from 37% to 40% had a prior
record less than prison. Federal Offenders: 1964, xii, 64, 66;
Administrative Office of the United States Courts, Federal
Offenders in the United States District Court for the District of
Columbia: 1963, 8, 10 (hereinafter cited as District of Columbia
Offenders: 1963).

															A similar picture is obtained if one looks at the subsequent
records of those released from confinement. In 1964, 12.3% of
persons on federal probation had their probation revoked because of
the commission of major violations (defined as one in which the
probationer has been committed to imprisonment for a period of 90
days or more, been placed on probation for over one year on a new
offense, or has absconded with felony charges outstanding).
Twenty-three and two-tenths percent of parolees and 16.9% of those
who had been mandatorily released after service of a portion of
their sentence likewise committed major violations. Reports of the
Proceedings of the Judicial Conference of the United States and
Annual Report of the Director of the Administrative Office of the
United States Courts: 1965, 138. See also Mandel et
al. , Recidivism Studied and Defined, 56 J.Crim.L., C. & P.
S. 59 (1965) (within five years of release, 62.33% of sample had
committed offenses placing them in recidivist category).

															[ Footnote 5 ]

															Eighty-eight federal district courts (excluding the District
Court for the District of Columbia) disposed of the cases of 33,381
criminal defendants in 1964. Only 12.5% of those cases were
actually tried. Of the remaining cases, 89.9% were terminated by
convictions upon pleas of guilty and 10.1% were dismissed. Stated
differently, approximately 90% of all convictions resulted from
guilty pleas. Federal Offenders: 1964, supra , note 4, 3-6.
In the District Court for the District of Columbia, a higher
percentage, 27%, went to trial, and the defendant pleaded guilty in
approximately 78% of the cases terminated prior to trial. Id. at 58-59. No reliable statistics are available
concerning the percentage of cases in which guilty pleas are
induced because of the existence of a confession or of physical
evidence unearthed as a result of a confession. Undoubtedly the
number of such cases is substantial.

															Perhaps of equal significance is the number of instances of
known crimes which are not solved. In 1964, only 388,946, or 23.9%,
of 1,626,574 serious known offenses were cleared. The clearance
rate ranged from 89.8% for homicides to 18.7% for larceny. FBI,
Uniform Crime Reports -- 1964, 20-22, 101. Those who would replace
interrogation as an investigatorial tool by modern scientific
investigation techniques significantly overestimate the
effectiveness of present procedures, even when interrogation is
included.

Summary:
Here is a summary of the key points from the case:

* The case of Miranda v. Arizona deals with the admissibility of statements made during custodial police interrogation and the protection of the individual's Fifth Amendment privilege against self-incrimination.

* The Court builds on its previous decision in Escobedo v. Illinois, where it held that statements obtained without effectively informing the individual of their right to remain silent and to consult an attorney were constitutionally inadmissible.

* The Court granted certiorari in these cases to explore further the application of the privilege against self-incrimination during custodial interrogation and to provide concrete constitutional guidelines for law enforcement and courts.

* The Court emphasizes that its holding is not an innovation but an application of long-recognized principles in American criminal jurisprudence.

* The case discusses the impact of confessions obtained during interrogation and the potential for inducing guilty pleas or influencing the outcome of known crimes that remain unsolved.

* The Court's decision in this case will have significant implications for law enforcement practices and the protection of individuals' constitutional rights during custodial interrogation.