Journal of Criminal Law and Criminology

Volume 34 | Issue 1 Article 8

1943

Questions and Answers

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Recommended Citation
Questions and Answers, 34 J. Crim. L. & Criminology 43 (1943-1944)

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 Questions and Answers
David Geeting Monroe (Ed.)

Long before the science of criminal investigation came into repute,

enforcement officials had come to rely upon the confession as an important
means of establishing guilt. The courts, for example, viewed confessions
as one of the best and most substantial species of evidence. They assumed,
and correctly, that no person in the full possession of his faculties would
voluntarily' sacrifice life, liberty, or property by confessing to a crime he
did not commit. And from the point of view of the police, the confession
offered an invaluable means of disclosing guilt in light of the exceptional
difficulties involved in fixing criminality. For crimes in large part are
cloaked in secrecy and men conscious of criminal purpose seek to shelter
their knavery from the observing eyes of others. Thus, through the ages,
the confession has held a significant position in the field of crime repression.
Nevertheless, use of confessional evidence has suffered an harrassed
and checkered career and on innumerable occasions has obstructed the normal
functioning of enforcement. Examination of the problem supplies an
answer. In the eyes of the law, a confession is good only to the extent
that it was made voluntarily-that is without force, threat, fear or induce-
ment of any kind. This is the one basis on which courts admit a confession.
Hence their close scrutiny of the circumstances of confessions.
Thus, the police in their quest of confessions are confined to a corridor
of narrowest dimensions, possibilities of transgressions beyond the limits
of which are legion. Difficulties of securing a purely voluntary confession
invite the employment of police tactics which violate the inalienable rights
of man. Furthermore, since the prosecution has the difficult and dubious
task of proving voluntariness of the confession, an alert defense can hurl
a variety of real and imaginary challenges which may result either in
rejection of the confession or may so influence judge and jury that the
confession ceases to have any real influence at trial. These are some of
the considerations which lead us to devote this issue of Questions and
Answers to the subject of confessions.
Question 1: We were cruising on A street when our dispatcher advised of
a hit-and-run-accident. We drove up to the scene, found a witness who
had spotted the license number of the fleeing car, and then we picked
up the suspect. At the time we secured a confession from him, it was
apparent that he had been drinking and, in fact, he so admitted. Is a
confession taken while a person is in a state of intoxication good?
Answer:
Courts have held on a number of occasions that a confession is good
even though the accused was intoxicated or under the influences of nar-
cotics at the time he gave the confession.2 However, exceptional caution
must be used in relying upon such a confession since many factors may
'Director of Research and Information, Northwestern University Traffic
Institute.
2 Note the list of cases in footnote 5, sec. 499, p. 920, vol. 1, of Wigmore's
A Treatise on the Anglo-American System of Evidence in Trials at Common
Law (Second Edition).
44 QUESTIONS AND ANSWERS

influence the court in either rejecting the confession or of giving it little

or no credence. The answer to this question stems back to the principles
governing the competence of witnesses. Intoxication, even habitual, does
not in itself incapacitate a person offered as a witness, as Wigmore has
pointed out. The question is, in each instance, whether the witness was
so bereft of his powers of observation, recollection, and descriptive ability
that he is untrustworthy as a witness in respect to the subject at hand.
This is the test in your case. If, at the time you questioned the hit-and-run
driver, he was so far intoxicated that he would have been untrustworthy
as a witness, the confession would probably be rejected as evidence.

Question 2: We secured a confession from a suspect. One paragraph of the

confession was of particular value. Can we introduce only this paragraph
as evidence or must the entire confession be introduced?
Answer:
To be on the safe side, introduce the entire confession. The rule is by
no means clear. One of the interesting cases holding that the entire confes-
sion need not be offered is Webb v. State, 14 So. 865 (Ala. 1893).

Question S: Two men were picked up on a larceny charge. We questioned

them separately and got one of the men (Jones) to talking by telling
him his pal had peached on him. Jones was furious and when we brought
the two men together, Jones went up to his pal and said: "Why you so-
and-so, don't try and hook me. You planned the whole thing and you
stole the stuff." The pal got red in the face but didn't say a word. My
question is this: Can the pal's silence be construed as a confession?
Answer:
Your question raises a number of interesting issues. Under the rules
governing the use of tacit (i.e., silent) confessions, a statement made and
the silence following it could be introduced against the silent person. The
assumption is that where a person fails to deny an accusation under cir-
cumstances where an innocent man would have denied it, then failure to
deny is deemed an admission of guilt. However, exceptional caution must
be employed by the police officer in "arranging" for a silent confession. For
one thing, the accusation should never be made by a person in authority-
police officer, prosecutor, etc. The reason is that one is not required by
law to answer an accusation made by such person. Next, the accusation
must be made in the presence of the person whose silent confession is sought.
This means that the accusation must be made in language so clear that the
person could and did understand the accusation. Lastly, the accusation
must be made by word of mouth. If, for example, a written accusation is
handed the suspect and he remains mute, his silence cannot be construed as
a tacit confession. Under the circumstances you have outlined in your
question, I should say that the pal's silence constituted a good tacit confession.

Question 4: Is it necessary to warn the defendant of his constitutional rights

before securing a confession from him?
Answer:
This is one of those controversial subjects on which there is by no means
complete agreement. Statutes prescribing safeguards for the accused are in
effect in all the states. In many instances, warning requirements are in-
 QUESTIONS AND ANSWERS
cluded. Such is the case in Texas. In general, this is the situation: If the
accused is taken before a magistrate for a judicial hearing, then the accused
must be warned of his constitutional rights. Ordinarily, where a suspect is
p'.ked up by the police and questioned, the police are not obliged to warn
the suspect of his constitutional rights. But, to be sure, it is always wise
to check your statutes and to follow them strictly. For an interesting case
on this point, see People v. Randazzio, 87 N.E. 112 (N. Y.)

Question 5: In an important criminal case, we went to the home of the

suspect and interrogated him and his wife. We asked the wife what
time he had returned home on a particular night. She mentioned a time.
He made no objection to her statement. Later, he tried to establish an
alibi by, declaring that he was home several hours previous to the time
affirmed by his wife. Is there any rule of evidence which can be used
to introduce evidence of the wife's testimony?
Answer:
This is another instance in which the rule governing tacit confessions
plays an important role. The facts disclosed in your question point to a
good tacit confession and parallel those in a recent North Carolina case-
State v. Portee, 156 S.E. 783 (1931). There the supreme court of that
state held that evidence of the wife's testimony and of the defendant's
silence was properly admissible in overcoming the alibi defense.

Question 5: I notice that the terms "admission" and "confession" are used
frequently. Apparently, in some instances, they mean thq same thing,
in others they are used in a widely different sense. If there is a dis-
tinction, what is it?
Answer:
For all practical purposes, the distinction between the two terms is
purely artificial insofar as criminal trials are concerned. A confession is
an acknowledgment in expressed terms, by a party in a criminal case, of
his guilt of the offense charged. An admission is simply a partial confes-
sion-a statement by the accused, direct or implied, of facts pertinent to
the issue. A suspect may not confess that he committed the crime but he
may admit to certain facts which, taken in conjunction with other evidence,
may lead to the proposition that he did commit the crime. With respect to
admissibility, both confessions and admissions are governed by the same
evidentiary rules. See Wharton's Criminal Evidence (11th Ed.) p. 954.

Question 6: Suppose a police officer tells a suspect: "You tell me what hap-
pened and I'll ask the prosecutor to go easy on you." Is the confession
good if obtained as a result of the officer's promise although the officer
made no attempt to see the prosecutor?
Answer:
No. Such a promise by the police officer is an inducement to confess and
therefore violates one of the cardinal rules of evidence relating to confessions.
All confession must be made voluntarily to be admissible. Now the term
"voluntary" is one of those all-purpose legal terms which covers a variety
of situations. Ordinarily we think that an act is voluntary if it is performed
without force or putting in fear: in other words, of our own free will.
Actually, the term is far more embracing. Any act (insofar as evidentiary
 QUESTIONS AND ANSWERS

law is concerned) which is promoted by inducement or reward of any tem-

poral nature is deemed to be involuntary since it was motivated by con-
siderations other than those promoted by our own will or choice. As the
court stated in Wilson v. United States, ". . . the true test of admissibility
is that the confession is made freely, voluntarily and without compulsion
or inducement of any sort."3 And in the acrid words of another court:
"To ... admit direct confessions of guilt obtained by . . . promises designed
to influence the prisoner is to put a premium on the unscrupulous methods
of overzealous detectives and to take a step backward towards the thumb
screw and the rack as a means of procuring testimony." 4 There is this
important proviso, however. If the promise is made by a person not in
authority, then such a promise does not invalidate the confession. Whether
or not the officer intended or did see the prosecutor is immaterial.

Question 7: An officer poses as a "con" man and gets himself locked up in

a cell with the suspect in order to gain his confidence. As a result the
suspect described how he pulled a number of jobs. Can the officer testify
in court as to the suspect's story?
Answer:
While no force, fear, threats or inducements of any kind are permitted
by the court, this is by no means true in respect to use of artifices in securing
confessions or admissions. While the courts do not approve such practices,
nevertheless they will admit confessions and admissions even though they
were gained through deception. Diguising an officer as a fellow prisoner,
falsely telling an accused that his accomplice has confessed and implicated
him, intercepting an accused's letter, and the like, are acts which do not,
because of their deception, invalidate the confession. For further considera-
tion see the following cases: People v. Buffom, 108 N.E. 184 (N. Y. 1915)
and Lewis v. United States, 74 Fed. (2nd) 173 (1934).

Question 8: We picked up a suspect, quizzed him and by threats got him

to own up where he had hidden the loot. His attorney intends to have
the confession thrown out on the ground that threats were used to get it.
We found the stolen jewelry. Query: Can we show the jewelry as evi-
dence although it was found through illegal confession?
Answer:
The fact that threats were used in securing the confession will, of course,
make the confession inadmissible and it will not be admitted. But even
though the confession is inadmissible, the courts have held that evidence
gained through an inadmissible confession is in itself admissible. Wigmore
has described the principle involved as follows: "It was once contended
that the impropriety of the inducement to the confession tainted the facts
discovered in consequence of it, and that they also, as well as the confes-
sion, should remain inadmissible. Such a doctrine needs only to be stated
to expose its equal lack of logic, principle, and expediency. It was fortu-
nately repudiated at the outset in an opinion which leaves nothing to be said." 5
Hence, the jewelry should be admitted in the case at issue. However, there
is one important proviso that the police officer must consider. For example,
if the officer entered the suspect's home without a warrant, the jewelry
would not be admitted since the evidence was illegally seized.
3 162 U. S. 613 (1895).
4 State V. Garrison,117 Pac. 657 (Ore. 1911).
 QUESTIONS AND ANSWERS 47

Question 9: A suspected rapist was picked up. In order to get him to talk,
we gave him several drinks of intoxicating liquor. As a result he loosened
up and boasted of his conquests. Are his confessions good?

Answer:
No. While a variety of trickery practices may be employed in securing
a confession, offering a person intoxicating liquor to get him to confess is
definitely not one of them. In this respect the courts are adamant and hold
to the practice of rejecting all confession and admissions so obtained.

Question 10: Is it necessary that a confession be signed by the confessor?

Answer:
No. For one thing, a confession need not be in writing insofar as ad-
missibility is concerned. An oral confession is good. Nor is it necessary
that a confession be signed or witnessed. Of course, a written confession,
signed by the confessor and witnessed by some responsible person, carries
much greater weight and is particularly valuable because evidence of such
procedure assists in overcoming a defense challenge of duress.

Question 11: A motorist failed to stop after striking a pedestrian. Is a

jury entitled to infer failure to stop as an admission against the motorist?

Answer:
As a rule, yes. It was so held in the case of Kotler v. Lalley, 151 AUt.
433 (Conn.). For a discussion of the case and the principles involved see
25 Illinois Law Review 809 and 40 Yale Law Journal 484.

Question 12: We arrested a woman, questioned her and secured valuable

admissions from her. During the questioning, however, she grew hysteri-
cal. My question is this: is the confession admissible despite the fact
that she was in a hysterical condition at the time?

Answer:
Yes. Such a state of mind does not ordinarily render a confession inad-
missible. However, the situation will undoubtedly affect the jury. In any
event, it is not wise to rely too heavily upon such a confession.

Question 18: We caught a person suspected of burglarizing an apartment.

The only evidence we had on him was his confession. Is the confession
alone sufficient to warrant conviction?

Answer:
No. A confession without additional proof that the crime charged had
been committed is not sufficient to warrant conviction. In your case, it would
be necessary to show that the apartment had been burglarized. But it would
not be necessary for you to connect the suspect with the crime by means
of other evidence. The rule is as follows: It is sufficient to warrant convic-
tion if corroborating circumstances are shown which, in connection with
the confession, are sufficient to establish the suspect's guilt in the minds of
the jury beyond a reasonable doubt.
GA Treatise on the Anglo-American System of Evidence in Trials at Corn,
mon Law (Second Edition) vol. 11, sec. 859.
 QUESTIONS AND ANSWERS

Question 14: Where does the burden of proof lie in respect to. whether or
not the confession was voluntary or not?

Answer:
The prosecution has the burden of proving voluntariness of the con-
fession. A case on this point is People v. Rogers, 85 N.E. 135 (N. Y.)

Question 15: I understand that the Supreme Court of the United States
has recently held that a confession obtained previous to taking a prisoner
before a committing magistrate is void. I am unable to find the case.
Therefore a discussion of it will be appreciated.

Answer:
Mc. Nabb v. United States is doubtlesq the case you have in mind.' It
is one which should be carefully studied by enforcement officials. Briefly,
the facts are these: Revenue officers of the Federal Alcohol Unit learned
that the McNabbs (brothers living in the Tennessee hills) were planning to
sell whiskey on which no federal tax had been paid. While the brothers
were in the act of selling the liquor, revenue men attempted to arrest them.
In the ensuing fight, the brothers escaped but only after one of the officers
was slain. His assailant could not be identified. Shortly after, the McNabbs
were arrested in their home and were taken to federal headquarters at
Chattanooga. There they were questioned from approximately 9:00 P.M.
until 1:00 A.M. and the following day from 9:00 A.M. until 2:00 A.M. the
next morning. The prisoners did not have benefit of counsel and relatives
and friends were excluded from seeing the accused. In particular, the
McNabbs were not taken before a committing officer until after the admis-
sions were secured. The brothers were convicted of second degree murder.
Counsel for the defense appealed the case -on the grounds that the ad-
missions were secured in violation of the Fifth Amendment to the Federal
Constitution. However, it was not upon these grounds that the Supreme
Court of the United States held the conviction invalid but upon the specific
grounds that the McNabbs were not taken before a committing officer until
after the admission had been secured. The court called attention to the
fact that a Congressional statute requires that a federal officer making an
arrest must take the person arrested before a United States Commissioner
or the nearest judicial officer having jurisdiction for purposes of hearing,
taking bail, or committing the person for trial. The court held that by sub-
jecting the brothers to questioning without following the statutory require-
ments, "The arresting officers assumed functions which Congress has ex-
plicitly denied them. They subjected the accused to the pressures of a
procedure which is wholly incompatible with the vital but very limited
duties of the investigating and arresting officers of the Government and
which tends to undermine the integrity of the criminal proceedings."
Thus, the opinion is a pointed reminder to police interrogators that the
time element enters into the validity of a confession and that they may not
usurp the functions specifically denied them by law. Since legislation in
nearly all the states parallels the federal provision requiring that the ac-
cused be taken promptly before a committing authority, it follows that a
confession obtained previous to the hearing, bail, or commitment may be
rejected and a conviction based upon such confession may be set aside.
6 Decided March 1, 1943. See 87 L. ed. Ops. 579. Note also the review of
the case in the April, 1943, issue of the American Bar Association Journa&
pp. 214-215. See 87 L. ed. Adv. Ops.