Criminal Justice: Concern About Confessions

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felony cases without question. In May 1964, Massiah v. U.S. moved the right to counsel back to the pretrial stage of indictment. In June of that year, Malloy v. Hogan made the Fifth Amendment binding on states. A week later Escobedo reversed Danny's conviction after he had spent 4½ years in prison—and moved the Constitution, and lawyers, into the police station. The court made it clear that criminal prosecutions actually start in the squeal room. To bar legal aid at that crucial stage, it ruled, "would make the trial no more than an appeal from the interrogation."

Two-Way Argument. Speaking for the five-man majority, Justice Goldberg acknowledged that a right to counsel during questioning might sharply diminish confessions. He quoted the late Justice Robert Jackson's opinion in a prior case: "Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances." But, said Goldberg, "this argument cuts two ways. The fact that many confessions are obtained during this period points up its critical nature as a stage when legal aid and advice are surely needed. Our Constitution, unlike some, strikes the balance in favor of the right of the accused to be advised by his lawyer of his privilege against selfincrimination.

"A system of law enforcement which comes to depend on the confession," continued Goldberg, "will, in the long run, be less reliable than a system which depends on extrinsic evidence independently secured through skillful investigation. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system." Despite this manifesto, the basic Escobedo rule was actually limited. "We hold only," said the opinion, "that when the process shifts from investigatory to accusatory —when its focus is on the accused and its purpose is to elicit a confession—our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult his lawyer."

Even that specific rule, with its insistence on the importance of the "focus" point, struck the four dissenters as all wrong. Not only is the rule unworkable "unless police cars are equipped with public defenders," declared Justice Byron White, but it "reflects a deep-seated distrust of law-enforcement officers everywhere." Said Justice John M. Harlan:

"I think the rule is most ill-conceived and that it seriously and unjustifiedly fetters perfectly legitimate methods of criminal enforcement."

Court v. Court. Across the country, many lower courts echoed the dissenters' fears by ruling that Escobedo voids a confession only if, as in Danny Escobedo's case, the suspect had retained a lawyer and was not allowed to consult him. By contrast, the California Supreme Court went beyond Escobedo and ruled last year that a constitutional right to counsel exists even if a suspect does not ask to exercise it. In California, police failure to warn a suspect of his rights to silence and to counsel now voids his confession even though he makes no request for a lawyer.

By last December, two U.S. appellate courts had interpreted Escobedo in diametrically opposite ways. Duty-bound to referee such a conflict,