(7 of 12)
When Kroll appealed Danny's case to the U.S. Supreme Court, his idea for an objective test of police procedure reached friendlier territory. In federal jurisdiction, the FBI routinely warns all suspects of their rights to silence and to counsel; if a federal suspect talks, the prosecution must prove that he "intelligently and knowingly" waived his rights. Moreover, the Supreme Court's 1957 Mallory rule bars prolonged federal interrogation. On arrest, a federal defendant must be taken "without unnecessary delay" before the nearest U.S. commissioner, who reiterates his rights and furnishes a lawyer if the suspect cannot afford one. Admissions obtained during excessive delays are excluded.
Overdue & Overborne. It is the question of how to raise state procedures to this standard that has baffled the Supreme Court. The Fifth Amendment was long thought not to apply to states at all. Only one state (Michigan) has adopted Mallory, and though nearly all the others have "prompt arraignment" laws, state judges widely tolerate incommunicado police interrogation lasting as long as three days. The Supreme Court did not even attack the use of coerced confession in state courts until the 1936 case of Brown v. Mississippi, when it voided the "voluntary" murder confessions of three Negroes who had talked only after being beaten with steel-studded belts for five days.
In more than 35 subsequent cases, the Supreme Court worked out new standards under the due-process clause of the 14th Amendment, which is binding on states. A confession is voluntary, said the court, only if it reflects "a free choice to admit, or deny or refuse an answer." It is involuntary, and therefore inadmissible, if the suspect's will to silence was "overborne" by any pressure —mental or physical. The court voided one man's confession because he had not been allowed to call his family, and that of a woman because the police had threatened to take away her children. Indeed, since 1958 the court has not held any confession to be voluntary.
Total Confusion. For all that, the court's voluntariness doctrine lacked any objective test and turned instead on subjective appraisal of the "totality of the circumstances." In each case, the court tried to reconstruct the suspect's ability to resist the forces arrayed against him. The results were confusing. To weigh "totality," the court developed no fewer than 38 criteria, such as whether police conduct "shocked the conscience." In two cases similar to Escobedo, police barred the suspects' lawyers; one confession came after seven hours, the other after twelve. While voiding the first, the court upheld the second. All this left lower courts to decide voluntariness almost as they pleased.
In 1963, the Supreme Court started moving inexorably toward a solution in Gideon v. Wainwright, which discarded "totality" as the test of whether indigents were entitled to free counsel in state criminal trials. By imposing on the states the Sixth Amendment right to counsel, Gideon set an objective standard: all indigents get free counsel in the courtroom in