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Dissenting Opinions
Harlan
Stewart
White
Linked case(s):
372 U.S. 335 (1963)

MR. JUSTICE STEWART, dissenting.

I think this case is directly controlled by Cicenia v. Lagay, 357 U.S. 504, and I would therefore affirm the judgment.

Massiah v. United States, 377 U.S. 201, is not in point here. In that case, a federal grand jury had indicted Massiah. He had retained a lawyer and entered a formal plea of not guilty. Under our system of federal justice, an indictment and arraignment are followed by a trial, at which the Sixth Amendment guarantees the defendant the assistance of counsel. 378 U.S. 485.

It is "that fact," I submit, which makes all the difference. Under our system of criminal justice, the institution of formal, meaningful judicial proceedings, by way of indictment, information, or arraignment, marks the [p378] point at which a criminal investigation has ended and adversary proceedings have commenced. It is at this point that the constitutional guarantees attach which pertain to a criminal trial. Among those guarantees are the right to a speedy trial, the right of confrontation, and the right to trial by jury. Another is the guarantee of the assistance of counsel. Gideon v. Wainwright, 372 U.S. 335; Hamilton v. Alabama, 368 U.S. 52; White v. Maryland, 373 U.S. 59.

The confession which the Court today holds inadmissible was a voluntary one. It was given during the course of a perfectly legitimate police investigation of an unsolved murder. The Court says that what happened during this investigation "affected" the trial. I had always supposed that the whole purpose of a police investigation of a murder was to "affect" the trial of the murderer, and that it would be only an incompetent, unsuccessful, or corrupt investigation which would not do so. The Court further says that the Illinois police officers did not advise the petitioner of his "constitutional rights" before he confessed to the murder. This Court has never held that the Constitution requires the police to give any "advice" under circumstances such as these.

Supported by no stronger authority than its own rhetoric, the Court today converts a routine police investigation of an unsolved murder into a distorted analogue of a judicial trial. It imports into this investigation constitutional concepts historically applicable only after the onset of formal prosecutorial proceedings. By doing so, I think the Court perverts those precious constitutional guarantees, and frustrates the vital interests of society in preserving the legitimate and proper function of honest and purposeful police investigation.

Like my Brother CLARK, I cannot escape the logic of my Brother WHITE's conclusions as to the extraordinary implications which emanate from the Court's opinion in [p378] this case, and I share their views as to the untold and highly unfortunate impact today's decision may have upon the fair administration of criminal justice. I can only hope we have completely misunderstood what the Court has said.

  • "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."