Report No. 69

10.51. Due process a broad umbrella.-

Due process of law has become, through judicial interpretation, "a broad umbrella" which covers most of the specific guarantees in First to Ninth Amendments, including the protection against self-incrimination (Fifth Amendment) guarantee against unreasonable searches and seizures (Fourth Amendment) and representation by a lawyer when accused of a crime (Sixth Amendment). In Miranda's case,1 the Supreme Court brought together several constitutional guarantees. The facts were as follows:

On March 2, 1963, an eighteen-year-old girl employed at the Paramount Theatre in Phoenix, Arizona, was walking to a bus after leaving her job. She was accosted by a man who shoved her into his car, tied her hands and feet, drove to the edge of the town, and raped her. He then drove her back to a street near her home, where he let her out of the car. After hearing the girl's story and patching together pieces of evidence, the police asked Ernesto Miranda if he would consent to answering questions about the case. He agreed to do so voluntarily. Miranda was a twenty-three-years-old eighth grade drop-out, with a police record, including several previous arrests as well as convictions for assault and automobile theft.

He consented to appear in a police line up (Identification), and, although the girl could not positively identify him, in a subsequent Interrogation the police told Miranda that she had named him as her assailant. Miranda then confessed and, when confronted with the girl, acknowledged that she had been his victim. In a written statement, Miranda said that the confession had been made, voluntarily and with full knowledge of his legal rights. At his trial. both the oral and the written confessions were admitted into evidence by the judge, over the objections of Miranda's lawyer. Miranda was convicted and sentenced to serve from twenty to thirty years in prison. On appeal, the Supreme Court of Arizona held that Miranda's constitutional rights had not been violated.

1. Miranda v. Arizona, (1966) 384 US 436.

10.52. A majority of the Supreme Court of the United States, however, disagreed. In summarising the decision of the Supreme Court, Warren C.J., declared that the government may not use statements obtained from "custodial interrogation" of a defendant unless it can show that his right against self incrimination. nation had been carefully secured by effective "procedural safeguards".

The two key phrases, "custodial interrogation" and "procedural safeguards", were then defined. The former, "custodial interrogation") meant "questioning initiated by Jaw enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way." The latter ("procedural safeguards"), as a minimum include: a warning prior to any questioning (i) that a person has a right to remain silent, (ii) that any statement made by a suspect might be used against him, and (iii) that he has a right to the presence of an attorney, appointed or retained. These rights may be waived; but the waiver, must be made "voluntarily, knowingly and intelligently."

10.53. For the purposes of satisfying the above-mentioned requirement that the, accused must be in custody before there is a duty to warn him, it does not matter whether he is in custody for the offence under investigation or for an unrelated offence. This was laid down in subsequent case.1

1. Mathis v. United States, (1968) 20 Lawyer's Edn. 2nd 381.

10.54. A later case,1 Harris, modified the ruling in Miranda to a very limited extent. Harris had been indicated in New York for selling heroin to an under-cover police officer on two different occasions. Testifying in his trial, Harris said that he had only made one transaction and that he had sold baking soda; not heroin. The prosecuting attorney for the State, in seeking to impeach the credibility of Harris„ read a statement that Harris had made to the police after his arrest, which was at odds with his testimony in court. Under police interrogation, he had admitted to both sales, maintaining that:

(1) he was acting as a middle man for the police;

(2) he had received money and heroin for the service performed;

(3) he had not claimed that he had sold only baking soda. In permitting the prosecutor to read the statement, the trial judge informed the jury that the information contained therein could not be used as evidence of guilt but might be used to impeach Harris's credibility.

1. Harris, (1971) 401 US 222.

10.55. After being adjudged guilty, Harris claimed that the use of the statement violated his rights as outlined in Miranda v. Arizona, (1966) 16 Lawyer's Edn. 2nd 643, and, for a majority of five, thief Justice Burger wrote an opinion upholding the use of the statement for purposes of impeachment. The case of Miranda was distinguished. It prohibited the use of an illegally obtained confession as evidence of guilt, but permitted the use of such statements to mpeach a defendant's credibility so long as the jury was properly instructed.

10.56. Voluntariness required.-

It has also been held1 in the U.S.A. that the admission of a pretrial confession may depend on whether or not it was voluntary. to determining whether the confession made by a person under trial before a State Court is voluntary, the Supreme Court would consider "the totality of circumstances" from art independent examination of the whole record.2-3

Thus, in Bouldon's case4a Habeas corpus proceeding had been taken to attack the conviction for murder. The Supreme Court pointed out that two confessions were, in fact, obtained-although only the second was actually produced in evidence, and that the question was whether the second confession was properly admitted. The Court said that it would consider the voluntariness of the first confession also, since the second confession must have been the end product of the earlier one, inasmuch as the accused may have been acutely aware that he had earlier made an admission against his interests, and was, therefore, repeating his ostensibly "unreasonable words of confession."

1. Brooks v. Florida, (1967) 19 Lawyer's Edn. 2nd 643.

2. Bouldon v. Holman, (1969) 22 Lawyer's Edn. 2nd 433.

3. Darwin v. Connecticut, (1968) 20 Lawyer's Edn. 2nd 630.

4. Bouldon v. Holman, (1969) 22 Lawyer's Edn. 2nd 433.

10.57. And, in Boyking v. Albania, (1969) 395 US 238: 23 Lawyer's Edn. 2nd 274, the Court noted that the admissibility of confession in evidence at a criminal trial must be based on are liable determination on the issue of voluntariness which satisfies the defendant's constitutional rights.

10.58. Truth or falsity not the criterion.-

A defendant's constitutional rights are violated if his conviction, in a federal or state court, is based, in whole or in part, on an involuntary confession, regardless of ills truth or falsity. A number or cases1 have held or recognized, either expressly or by necessary implication that the voluntariness of a defendant's pretrial confession was the determinative factor in its admissibility in evidence against that defendant in a criminal prosecution.

1. (a) Garrity v. New Jersey, (1967) 385 US 493: 17 Lawyer's Edn. 2nd 562;

(b) Sims v. Georgia, (1967) 385 US 538 (17): Lawyer's Edn. 2nd 593;

(c) Olewis v. Texas, (1967) 386 US 707 (18): Lawyer's Edn. 2nd 527;

(d) Pinto v. Pierce, (1967) 389 US 31: 19 Lawyer's Edn. 2nd 31, reh den 389 US 997: 1S Lawyer's Edn. 2d 499;

(e) Beecher v. Alabama, (1967) 389 US 35: 19 Lawyer's Edn. 2nd 35; Sims v. Georgia, (1967; 389 US 404: 19 Lawyer's Edn. 2nd 634;

(f) Brooks v. Florida, (1967) 389 US 413: 19 Lawyer's Edn. 2nd 643;

(g) Greenwald v. Wisconsin, (1968) 390 US 519: 20 Lawyer's Edn. 2nd 77;

(h) Darwin v. Connecticut, (1968) 391 US 346: 20 Lawyer's Edn. 2nd 630.

10.59. Thus, for example, in Sims v. Georgia, (1967) 385 US 519: 20 Lawyer's Edn 2nd 643; the Supreme Court said that a confession produced by violence or threats of violence is involuntary, and cannot be constitutionally used against the person making it.

10.60. Attention may also be drawn to a recent federal statute,1 which provides2 that in any federal criminal prosecution, a confession is admissible in evidence if voluntarily given; that it is for the trial judge to determine any issue as to the voluntariness of the confession, and that in so determining, he must take into consideration all the surrounding circumstances, including the time elapsing between the arrest and the arraignment of the accused, if the confession was made after arrest and before arraignment, whether the accused knew the nature of the offence with which he was charged or of which he was suspected at the time of making the confession, whether he was advised or knew that he was not required to make any statement and that any such statement could be used against him, whether he had been advised prior to questioning of his right to the assistance of counsel, and whether he was without the assistance of counsel when questioned and when giving such confession.

It is further provided that the presence or absence of any of these factors need not be conclusive on the issue of voluntariness of the confession. With these general observations, we now proceed to consider the sections in our Act relating to confessions.

1. 18 U.S. Code, Sections 3501(a) and (b).

2. See 22 Lawyer's Edn. 2d 872 (879), for details.

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