Today, everyone is familiar with the Miranda decision, which requires that police who are about to question persons who are in custody, warn them of their constitutional right to remain silent and to consult with counsel prior to or during interrogation. (Miranda v. Arizona, 384 U.S. 436 (1966.) The decision is so much a part of our jurisprudence and folklore that even some first graders can recite the Miranda warnings, having heard it done on television programs many times.

At the time Miranda was decided, however, it was vilified as much by law enforcement officials and prosecutors as it was lauded by civil libertarians. The controversy was so intense that Congress in fact passed a law stating that a confession would not be inadmissible solely because of a failure to give the Miranda warnings, but would be admissible if it was voluntarily made. 18 U.S.C. Sec. 3501(a) [Omnibus Crime Control and Safe Streets Act of 1968]. It was regarded as a blatant attempt by Congress to overrule a United States Supreme Court decision, an act that was most certainly illegal if Miranda were based on constitutional requirements. It is for that reason that the U.S. Justice Department and the states as well refused to follow the dictates of this federal law.

Recently, however, a Fourth Circuit Court of Appeals decision upheld the admission of a confession which did not satisfy Miranda. The case is United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999). The decision purported to return the test for admissibility of confessions to pre Miranda days, and was grounded expressly on the Congressional Statute cited before. The United States Supreme Court agreed to review the decision as to whether to overrule Miranda for the federal courts in favor of upholding the 1968 statute on December 6, 1999. Dickerson v. United States, cert. granted, 1999 WL 593195 (No. 99-5525). We will find out within months what the Court's decision is.

Since the Dickerson intermediate appellate court decision purports to return the federal law to a "voluntariness" standard for the admissibility of confessions, it is of interest to take a step back and review the evolution of the law on interrogations as it lead to the adoption of the "voluntariness" principle, and consider the United States Supreme Court cases leading up to Escobedo v. Illinois, 378 U.S. 478 (1964) and Miranda--the two decisions that brought defense counsel forward into the police station interrogation room.

[In discussing the United States Supreme Court cases, we will depart from standard "law review style" footnoting, giving the principal citation once without providing individual page citation references to quotes from the decisions.]

BIRTH OF THE "VOLUNTARINESS" RULE

Under the English common law, confessions were admissible at trial without any restrictions. Even an incriminating statement obtained by torturing the defendant was not excluded by the courts. But sometime during the middle of the eighteenth century English trial judges began placing some restrictions on the admissibility of confessions. Sometimes the issue was couched in terms of whether the defendant's confession had been induced by promises or benefits or threats of harm. On other occasions the inquiry was put in terms of whether the circumstances under which the defendant had spoken impaired the reliability of the confession. Eventually it became common for the courts to reduce the issue to a single criterion: whether the circumstances under which the confession was made guaranteed it was a "voluntary" one.

Early decisions by the United States Supreme Court followed the English common law rule. The rule was stated by the Court in terms of whether there had been such an inducement that "the presumption upon which weight is given to such evidence, namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases."

In Bram v. United States, 168 U.S. 532, 18 S.Ct. 183 (1897), the court expanded the common law rule holding that a confession obtained by any direct or implied promises, or by any other improper influence is not voluntary. The homicide in this case was committed on board an American ship bound from Boston to a port in South America. The accused was the first officer, Bram, and the victim was Captain Nash, of whose murder Bram was convicted. (We note that Mrs. Nash, the captain's wife, and the second mate were also murdered that night, but Bram was tried and convicted only for the captain's murder). No blood spots were ever found on any of the others on the ship, nor did anything direct suspicion to any one.

A few days later, the crew became suspicious of seaman Brown. The defendant and other crew members seized Brown and put him in shackles. Brown subsequently stated that he saw Bram kill the captain. The crew then shackled Bram too. Upon the ship's arrival in the port of Halifax, both men were held in custody by the chief of police. While awaiting action of the United States counsel, Bram was taken from his jail cell to a private office for questioning by a police detective where no witnesses were present. It was Bram's testimony that he was told to strip naked before being questioned. The detective, who did not deny the circumstances of this inquisition at Bram's trial, testified that he told Bram: "Your position is rather an awkward one. I have had Brown in this office, and he made a statement that he saw you do this murder." To which Bram replied, "He could not have seen me. Where was he?" The detective answered, "He states he was at the wheel." To which the defendant replied, "Well, he could not see me from there."

It was Bram's reply to the detective--"Well, he could not have seen me from there"--that was admitted into evidence as the defendant's confession. Bram's co-suspect had charged him of the crime, and although Bram's response was really in the form of a denial, it was offered as a confession. Bram was tried, convicted and sentenced to death. Following a trial in the Circuit Court of the United States for the District of Massachusetts, his case reached our highest court.

Said the Court: "It cannot be doubted that, placed in the position in which the accused was when the statement was made to him that the other suspected person had charged him with crime, the result was to produce upon his mind the fear that, if he remained silent, it would be considered an admission of guilt, and therefore render certain his being committed for trial as a guilty person; and it cannot be conceived that the converse impression would not also have naturally arisen that, by denying, there was hope of removing suspicion from himself. If this must have been the state of mind of one situated as was the prisoner when the confession was made, how, in reason, can it be said that the answer which he gave, and which was required by the situation, was wholly voluntary, and in no manner influenced by the force of hope or fear?
. . . . and then to use the denial made by the person so situated as a confession, because of the form in which the denial is made, is not only to compel a reply, but to produce the confusion of words supposed to be found in it, and then use statements thus brought into being for the conviction of the accused. A plainer violation as well of the letter as of the spirit and purpose of the constitutional immunity could scarcely be conceived of." The Court therefore concluded that Bram's confession was obtained by improper influence and conduct of the police which deprived Bram of his right to remain silent under the Fifth Amendment. The case was remanded for a new trial.

It should be noted at this point that in today's jurisprudence, had the suspect been given his Miranda rights and waived his right to silence, police use of a false statement to the effect an accomplice fingered the accused, might not invalidate the confession. But Bram was decided long before the Miranda case. At the time of this case, the Court was only concerned with the "voluntariness" standard.

THE RACK AND TORTURE CHAMBER

It was not until Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936) that the United States Supreme Court barred the states from using a confession that violated due process of law. In Brown, three black defendants were indicted for the murder of a white male, Raymond Stewart. At the arraignment all pleaded not guilty. Counsel was assigned, and trial began the next day.

Aside from the defendants' confessions, there was no evidence upon which to submit the case to the jury. The defendants testified that their confessions were false and had been procured by physical torture. One of the defendants had been hanged in the presence of a lynching party. Another had been tied to a tree and beaten. In their jail cells, all three defendants had been forced to strip and lay across chairs naked where they were beaten on their backs and buttocks with leather straps with buckles. The defendants were beaten blind until they not only confessed, but confessed in every manner of detail as demanded by the law enforcement officers present at those beatings. They were finally warned that if they changed their stories at any time the perpetrators of these beatings would administer the same or equally effective treatment. At the conclusion of the trial all three defendants were found guilty and sentenced to death. On appeal to the Supreme Court of Mississippi their conviction was affirmed. The United States Supreme Court agreed to review the case.

The justices on the United States Supreme Court were not pleased. In fact, they were horrified to hear that the rack and torture chamber had been substituted for the witness stand, and that the defendants were hurried to trial and convicted under mob domination. What's more, stated the Court, a trial is a mere pretense where state authorities have contrived a conviction resting solely upon confessions obtained by beatings and violence. "The due process clause requires that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." Here, the trial court was fully advised by undisputed evidence of the circumstances surrounding the defendants' confessions. They also knew there was no other evidence upon which conviction and sentence could be based. The state court denied the defendants a federal right of due process of law, a right fully established and claimed. Therefore, the judgment was reversed.

For those of you who shake your heads and say, "This could not happen in this day and age," we remind you of the Rodney King episode and other stories of recent police beatings that are very real parts of current events.

RELENTLESS INTERROGATION

The United States Supreme Court decision in Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921 (1944), held that the Fourteenth Amendment due process voluntariness test required examination of the totality of circumstances surrounding each confession, which means that it is necessary for the court to assess the characteristics and status of the defendant who gives it, as well as the conduct of the police in obtaining it. We state the facts of the Ashcraft case here.

Mrs. Ashcraft, the defendant's wife, got into her car at her home in Memphis, Tennessee, and set out to visit her mother in Kentucky. Later that day her car was found a few miles outside of Memphis. Her lifeless body was discovered at the side of road. Defendant Ware, a black man age 20, was indicted for the murder, and Ashcraft was charged with having hired Ware to kill her. At trial both men urged that their alleged confessions had been extorted from them by state law enforcement officers in violation of the Fourteenth Amendment, and that they had been convicted solely on the basis of these confessions. The trial testimony--which was in hopeless conflict--was as follows:

Statements of police officers indicated that they interrogated Ashcraft from 7:00 p.m. on a Saturday evening until 9:30 a.m. on the following Monday morning. They did so in relentless relays.

Ashcraft swore that the first thing the arresting officer asked after he was taken into custody was, "Why did you kill your wife?" The officers swore that they were kind and considerate all through their questioning, and that they did not accuse Ashcraft of the murder until four hours after he was taken into custody. They also stated that Ashcraft was cool, calm and rested--after the third degree--when he confessed. The defendant maintained that although the officers incessantly attempted by various tactics of intimidation to entrap him into confessing to the murder, not once did he acknowledge participating in the crime. And he specifically denied the officers' statement that he accused co-defendant Ware of committing the crime. Ashcraft said he merely told the officers that Ware was one of the men who frequently rode to work with him.

In what may be a fairly typical swearing contest, the officers, on the other hand, stated that after hours of questioning, Ashcraft made a statement that Ware had overpowered him at his home and abducted the deceased, and was probably her killer. Later that night the officers took Ware into custody, and according to the officers, Ware made self-incriminating statements and signed a confession which said that Ashcraft hired him to kill his wife. According to the police Ashcraft was read a transcript of his purported statements, that he affirmed its truth, but refused to sign the transcript saying he wanted to consult an attorney. The defendants were both convicted. They appealed to the Supreme Court of Tennessee where the judgment was affirmed. Both defendants then appealed to the United States Supreme Court and were granted certiorari.

The Court's conclusion was that, even if Ashcraft made a confession, it was not voluntary but compelled. This conclusion was reached from facts that were not disputed. Testimony at trial- from neighbors, business associates and Ashcraft's maid--showed that he was a man with an excellent reputation. For thirty-six hours while the police held Ashcraft incommunicado, without sleep or rest, relays of officers and highly trained lawyers questioned him without respite.

"We think that a situation such as that here shown by uncontradicted evidence is so inherently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear. It is inconceivable that any court of justice in the land, conducted as our courts are, open to the public, would permit prosecutors serving in relays to keep a defendant witness under continuous cross examination for thirty-six hours without rest or sleep in an effort to extract a 'voluntary' confession." Judgment as to Ashcraft was reversed and remanded for a new trial. Judgement as to Ware was vacated.

THE FALSE FRIEND

In Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716 (1954) the evidence revealed that Leyra and a few business associates had gone to his father's apartment on the afternoon of January 10, 1950, after the father had failed to appear at his place of business. There Leyra found both his parents dead. The police first suspected a prowler, but the presence of a third teacup on the couple's breakfast table led them to believe that the killer was probably a guest. This drew attention to the defendant. Leyra and others were questioned by the police throughout the day. The following day, after his parents' funeral and a half hour of rest, he was subjected to further police questioning.

Leyra had been suffering from a severe sinus problem and requested that a doctor be called. Captain Meenahan promised to get him medical help. However, instead of calling a physician, the captain introduced the defendant to Dr. Helfand, a psychiatrist-hypnotist. Captain Meenahan then left the room and joined the District Attorney in a nearby listening room where the defendant's conversation with the psychiatrist was being recorded. Instead of getting help for his sinus condition, Dr. Helfand, by subtle and suggestive questions, simply continued the police effort to induce him to admit his guilt. For nearly two hours the techniques of this highly skilled psychiatrist were used to break the defendant's will in order to get him to say he killed his parents. Time and time again, Dr. Helfand told Leyra how much he wanted to help him, and how much better he would feel if he confessed. The doctor, at that very time, was a paid representative of the state whose prosecuting officials were listening in on every threat made and every promise of leniency.

Following the defendant's confession to Dr. Helfand, Captain Meenahan went to the interrogation room with the defendant's partner who had been asked to talk to Leyra at an opportune moment. Leyra repeated some of the things he had told the psychiatrist and the captain. Subsequently, Leyra was questioned by two state prosecutors, and what purports to be his voluntary confession was transcribed.

A jury convicted Leyra and imposed the death sentence. The New York Court of Appeals reversed and remanded, finding that the confession made to the psychiatrist had been extorted by coercion and promises of leniency in violation of the Due Process Clause of the Fourteenth Amendment. The defendant was tried again. This time the invalidated confession was not used to convict him, but the other confessions that were made the same day were admitted. Again, he was convicted. After exhausting state remedies, Leyra ultimately sought review in the United States Supreme Court which granted certiorari.

The Court found the record replete with statements which indicated that Leyra's mind was dazed and bewildered during the lengthy interrogations by the police and the psychiatrist. There were numerous complaints about how tired and sleepy he was, how he could not think, and how much pain he felt from his health problems. On several occasions, the recordings revealed that the defendant's lips were moving but no sound could be heard. It was apparent, said the Court, that as time went on Leyra began to accept the suggestions of Dr. Helfand. When Helfand suggested that he had hit his parents with a hammer the defendant agreed that must have been the weapon.

The Court concluded that the undisputed facts clearly indicated that the defendant's mental freedom was overcome. All of the confessions were part of one continuous process over a period of five hours. An already physically and emotionally exhausted suspect's ability to resist questioning was broken by a highly skilled psychiatrist, after which the confession was filled in by additional statements made to police, a business partner, and two prosecutors. All confessions were held involuntary as a matter of law. The judgment was therefore reversed.

Three justices joined in the dissenting opinion. The dissent conceded that the evidence showed an involuntary confession to the psychiatrist, followed a few minutes later by a confession to Captain Meenahan. But they would have admitted the subsequent confessions.

THE "MUTT AND JEFF" ROUTINE

In Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202 (1959), a confession was ruled involuntary where it was obtained by a policeman who was a close friend of the defendant and who told the defendant that he would be in trouble unless he confessed to a shooting.

The shooting took place on January 22, 1957. At the time, the defendant was drinking in a bar. The decedent, a former professional boxer took some of Spano's money from the bar and Spano tried to get it back. A fight ensued with the decedent knocking the defendant down and kicking him in the head a number of times. The shock from these blows caused Spano to vomit. He left the bar, walked to his apartment, took his gun, and found the decedent in a nearby candy store with some friends. Spano fired five shots, two of which entered the decedent's body and caused his death. The boy who was supervising the store witnessed the killing. The decedent's friends did not see who fired the gun. Spano disappeared and a bench warrant was issued for his arrest.

Some weeks later, Spano called a friend, Gasper Bruno, who was a cadet attending police academy. According to Bruno's testimony, the defendant told him that he "took a terrific beating, that the deceased hurt him real bad and he dropped him a couple of times and he was dazed; he didn't know what he was doing and that he went and shot him." He told Bruno that he intended to get a lawyer and give himself up. Bruno reported this to his superior officers.

Days later, Spano, accompanied by counsel, surrendered himself to authorities. His attorney cautioned him to remain silent, and left Spano in the custody of the officers who then took him to the office of the District Attorney where the persistent and continuous questioning began. In accordance with his attorney's instructions, the record revealed that Spano refused to answer.
After five hours of questioning it was obvious to the District Attorney that Spano was going to remain silent, so he transferred him to the police station where he was questioned by a detective. Again, Spano requested that his attorney be present. Again he was denied that privilege.

It was at that point that the police got the notion that Spano's friend, Cadet Bruno, could be of use to them. Although Bruno's job with the force was in no way threatened, Bruno was told to tell Spano that Spano's phone call to him had gotten Bruno into a lot of trouble and that he could lose his job and his wife and children would suffer. It took four staged plays similar to this one for Bruno to evoke Spano's sympathy. The defendant finally succumbed to his friend's prevarications and agreed to make a statement.

But this was not the end for Spano. On their way to a Manhattan Police Headquarters, three detectives drove the defendant over several bridges in an attempt to find the one from which Spano said he had thrown the murder weapon. During that trip the officers also elicited a statement from Spano that the deceased was "always on (his) back, always pushing" him and that he "was not sorry" he had shot him.

At trial, the confession was introduced over appropriate objections by defense counsel. The jury was instructed that they could rely on the confession only if they found it was voluntary. They returned a guilty verdict and Spano received the death sentence. The New York Court of Appeals affirmed, and the United States Supreme Court granted certiorari.

Spano contended that his absolute right to counsel in a capital case had been denied. The Court did not even discuss this contention because they found the confession so inconsistent with the Fourteenth Amendment that Spano's conviction had to be reversed.

Involuntary confessions are untrustworthy. But the matter turns on something more fundamental here, said the Court. "It turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves."

The questioners persisted to interrogate the defendant in spite of his repeated refusals to answer on the advice of his lawyer. Here, the police ignored Spano's reasonable requests to contact the local attorney who had been retained and who had personally delivered him into custody of these same officers. And the use of Cadet Bruno--who was a long standing friend of Spano's- to falsely state that he had gotten into trouble and would lose his job because of Spano more than troubled this Court. The words for that day, a quote from John Gay: "An open foe may prove a curse, But a pretended friend is worse." And poor Spano yielded to his friend's false entreaties.

THE USE OF THREATS

In Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), the defendant's confession was obtained after lengthy interrogation and a threat to order the defendant's sick wife arrested for questioning. Here are the facts which led to this habeas corpus proceeding.

The New Haven, Connecticut, police arrested Rogers at a local hotel on charges of committing attempted armed robbery and other crimes. At the time he was arrested Rogers had a revolver which had been reported stolen from the home of the defendant's nephew. Ballistic tests confirmed that this weapon was used in a fatal shooting during a liquor store robbery two month prior to the attempted hotel robbery.

Rogers was arrested and jailed. Some days later he was taken to the State's Attorney for questioning in connection with the liquor store killing. The questioning began at 2 p.m. and continued through the evening. When a confession was not forthcoming, the Assistant Chief of Police was called in to conduct an investigation. Rogers continued to deny that he had done the shooting. Chief Eagan then pretended, in the defendant's earshot, to place a call to police officers to bring Rogers' wife in for questioning. At this point Rogers broke down and said he would confess.

The following day the Coroner of New Haven issued an order forbidding any communication with Rogers while he sat in jail. When a lawyer associated with counsel whom Rogers had previously retained to defend him on the robbery charge called at the jail to see Rogers, he was turned away on the authority of the Coroner's order. The defendant was then transported to the Coroner's office for questioning under oath. He was advised of his right to counsel and warned that he might refuse to say anything further. Rogers again confessed to the shooting.

At trial Rogers testified that shortly after interrogations began he asked to see a lawyer but was never permitted to do so. With reference to Chief Eagan bringing in his wife for questioning, Rogers stated that this statement took the form of a threat to do so unless he confessed to the murder. Chief Eagan testified that he never framed his remarks about bringing in the defendant's wife for questioning in terms of a threat. On the basis of this evidence, the trial judge concluded that the confessions were voluntary and allowed them to go to the jury for consideration of the weight to be given them under the circumstances. Rogers was subsequently convicted.

On appeal to the Connecticut Supreme Court judgment was affirmed. Rogers then initiated the first of two habeas corpus proceedings in federal court, in which he was unsuccessful, and the Supreme Court finally granted an appeal. In reviewing the record, the United States Supreme Court held that no confession or admission of a defendant is admissible unless it is freely and voluntarily made, and not under the influence of promises or threats. While it is true that a confession that is procured by some deceptive tactics will not automatically be excluded if the deception was not calculated to procure an untrue statement, involuntarily produced confessions are always inadmissible under the constitution. The object of the inquiry is, therefore, to get at the truth without the use of involuntary confessions. The focus, said the Court, should have been on whether the behavior of the State's law enforcement officials was such as to overbear Rogers' will to resist and bring about a confession that was not freely given--a question to be answered with complete disregard of whether or not Rogers spoke the truth. And here, the trial judge employed a constitutionally impermissible standard. The methods used by law enforcement to extract a confession from the defendant in the instant case offended an underlying principal in our criminal law, concluded the Court: "that ours is an accusatorial and not an inquisitorial system." Judgment was reversed.

THE DRUG-INDUCED CONFESSION

Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745 (1963), highlights another theme that runs through the Court's early cases: the confession must be the product of the defendant's "free and rational choice."

On December 18, 1953, Jack Boone left his home on the south side of Chicago to go to work in a steel mill when he was hit on the head with a brick and robbed of four dollars. He died less than a week later.

Charles Townsend, a nineteen year-old heroin addict was arrested on New years Day 1954 shortly after the police received information that Townsend was connected to the robbery and murder. He was questioned at various times on the day of his arrest and he denied committing the crimes. Later that evening, the defendant complained of severe stomach pains which were the result of his withdrawal from drugs. A physician was summoned. He gave Townsend an injection of phenobarbital and hyoscine. Hyoscine is the same drug as scopolamine and was claimed by the defendant to be truth serum. The doctor also left Townsend additional tablets of phenobarbital to take if his symptoms returned. Although there was dispute as to what happened after the physician's departure, both parties agreed that the police officers resumed their interrogation of the defendant in the presence of the state's attorney. Townsend then confessed.

The following day, Townsend signed his confession. At the coroner's inquest that followed, Townsend again confessed to the robbery and murder. At the time he was without counsel; the public defender was appointed after his arraignment.

At the hearing on the defendant's motion to suppress his confession, Townsend testified that he had been questioned for more than two hours; that he was in a line-up with several other men so that he could be viewed by one Anagnost, the victim of another robbery, and although Anagnost identified another man as his assailant, the police told the victim he had identified the wrong man; that defendant was beaten by a police officer; and that he was told the doctor would be called if he cooperated. He testified that the physician gave him an injection; thereafter he took several pills; he felt dizzy and sleepy, and his vision was impaired. He stated that he fell asleep, but was then awakened and given a pen with which to sign his name to a document he believed to be his release on bond. Essentially, the state's witnesses contradicted all of the above.

The physician who gave Townsend the medications testified that he had given the defendant a therapeutic dose of hyoscine and that phenobarbital combines well with that medication to quiet a person. He also denied giving Townsend truth serum. He did not say that hyoscine was the same as scopollamine which is known as a "truth serum."

The judge denied the defendent's motion to suppress, and Townsend was tried for the murder of
Jack Boone in Cook County, Illinois. He was found guilty and sentenced to death. The Illinois Supreme Court affirmed. Having exhausted his state remedies, the defendant petitioned for habeas corpus in federal court but his writ was denied. However, the Seventh Circuit Court of Appeals ordered a hearing to determine whether a plenary hearing was required.

On remand the District Court held no hearing and dismissed Townsend's petition. The judge stated he was satisfied with the state court records and decisions which held that the defendant's confession had been freely and voluntarily given and there had been no denial of due process. The Court of Appeals agreed. At the heart of defendant's appeal to the United States Supreme Court was the allegation that his confession was inadmissible because it was caused by the injection of hyoscine.

The Court reiterated: If an individual's will is overborne or if the confession was not the product of a rational intellect and a free will, his confession is inadmissible because it is coerced. This standard is applicable, said the Court, whether a confession is the product of physical intimidation or psychological pressure and, of course, is equally applicable to a drug induced statement. And the Court concluded that when a confession was brought about by a drug having the effect of truth serum, it was clearly less than voluntary. Thus the petition for habeas corpus alleged a valid deprivation of constitutional rights.

"VOLUNTARINESS" TEST PROBLEMS NOTED

The major problem with the "voluntariness" test is that because it is imprecise it gives law enforcement little guidance. Any incriminating statement--even one made under brutal treatment -is "voluntary" in the sense that it represents a choice of alternatives, yet very few statements are "voluntary" in the sense that they would be given absent official pressure. Moreover, a standard that varies from case to case depending upon how tough or soft a particular defendant happens to be is not likely to have much impact on law enforcement. These problems became abundantly clear in Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761 (1966), a case with a vigorous dissent.

The defendant was a poor black man with a third grade education and a long history of criminal behavior. He was serving a 25-year term in a North Carolina prison when he escaped. A few weeks later Mrs. Foy Belle Cooper was raped and murdered in Charlotte, North Carolina. The next day the police arrested Davis 12 miles from Charlotte. In his possession, Davis had women's undergarments and a billfold with identification papers of one Bishel Buren Hayes. Hayes testified at trial that his shoes and billfold had been taken from him as he lay in a drunken stupor near the place of the rape.

The Charlotte police learned of the defendant's arrest and sought permission to take him into custody for the Cooper murder. The defendant was placed in a 6 by 10-foot cell with no daylight. The arrest sheet contained the following directive: "HOLD FOR HUCKS & FESPERMAN RE-MRS. COOPER. ESCAPEE FROM HAYWOOD COUNTY STILL HAS 15 YEARS TO PULL. DO NOT ALLOW ANYONE TO SEE DAVIS. OR ALLOW HIM TO USE TELEPHONE."

The District Court found that from September 21 until after Davis confessed on October 6, no one was permitted to see him. However, the court also found that the defendant was not held incommunicado because he would have been permitted to see a visitor if he had made a request. The court never mentioned the notation on Davis' arrest sheet. The fact that no one other than the police spoke to the defendant during the 16 days of detention and interrogation is clearly significant in determining voluntariness, said the United States Supreme Court majority. In those 16 days, Davis was fed only two sandwiches a day, supplemented with some peanuts and cigarettes. He lost 15 pounds. While the diet may not have been below the starvation level, the Court felt it had a significant effect on the defendant's strength and ability to resist.

There were daily interrogations, once or twice a day, for 16 days, sometimes as late as 11 p.m. Still, Davis held strong to his alibis: he had taken the billfold, undergarments and shoes from various houses along a stretch of railroad line between Canton and Ashville. To exert pressure on Davis, the police decided to take him to Canton at 5 a.m. one morning to walk the 14 miles of railroad track to Ashville while handcuffed to an officer. On another afternoon, two officers planned a ruse to try to get Davis to incriminate himself. They engaged him in idle conversation, then asked him if he wanted to get some fresh air. When he said yes, they drove him to the cemetery where Mrs. Cooper was murdered and questioned him. Davis continued to deny knowledge of the crime.

On the 16th day of interrogation, the police got what they were after. One of the officers asked Davis if he wanted to talk to anyone alone. Davis said he would like to speak to Lieutenant Sykes who had known Davis' family, but who had not taken part in any of the prior interrogation sessions. The two were left alone. Sykes then asked Davis if he had been reading a "testament" which he was holding. Davis said he had, but that he did not know how to pray and said he would like Sykes to say a prayer for him. At that point the prayers of the police were answered. Davis confessed.

In reversing the conviction, the United States Supreme Court stated: "We have never sustained the use of a confession obtained after such a lengthy period of detention and interrogation as was involved in this case." The dissent disagreed with the rationale that Davis' will to resist was overborne when he gave his confession to the rape-murder and therefore would have considered confession voluntary. There have been no cases dealing with lengthy detention by state officers that would support a reversal in the present case, the dissent said. Sixteen days was a long period of detention, but Davis was questioned for only a few hours each day. There was no protracted grilling. Nor did the police operate in relays, as was the case in other Supreme Court cases. Davis also had a long criminal history. At the time of arrest he was an escapee from prison and could properly be held in custody. It was therefore wrong, said the dissent, for the majority to compare Davis' situation to detention of an ordinary suspect.

On this note of judicial confusion, we conclude our discussion of United States Supreme Court cases concerning police misconduct and its impact on the admissibility of confessions.