Legal pitfalls to avoid in criminal interrogations.

• Author: Inbau, Fred E.
• Position: Originally published in Journal of Criminal Law and Criminology, vol. 40, p. 211, 1949 - Reprint

The cloud of uncertainty that has hovered over the law of confessions as a result of several United States Supreme Court decisions of the past few years has been dissipated to some extent by the Court's rulings and opinions in four very recent cases.(1) It now appears reasonably safe to venture a few concrete suggestions and recommendations to criminal interrogators as to what they can and cannot do in the interrogation of criminal suspects.

1. THE PROBLEM IN FEDERAL CASES

   Federal investigators undoubtedly will welcome the implication attending the Supreme Court's refusal to review a decision of the Court of Appeals of the District of Columbia in Garner v. United States.(2) In this case the defendants had been arrested at night, after the federal commissioner's office had closed, and confessions were made by each defendant within a few hours after their arrest. The next morning they were duly arraigned, and a subsequent trial resulted in their conviction for murder. Defense counsel contended at the trial and in the Court of Appeals that the confessions were inadmissible as evidence because they were obtained during a period of delay in arraignment. For their authority in support of this contention counsel for the defendants relied upon the United States Supreme Court decisions and opinions in the McNabb and Upshaw cases, which had developed the so-called "civilized standard" rule of interrogation for federal officers and branded as invalid any confession obtained by federal investigators during a period of "unnecessary" delay in taking the arrested person before a commissioner for arraignment as required by law.(3)

   In a 2 to 1 decision of the Garner case the Court of Appeals for the District of Columbia held that the arresting officers were only required to avoid "unnecessary" delays, and that the absence of a federal commissioner made a delay in the arraignment until the next morning a necessary one, thereby placing this particular case situation beyond the orbit of the McNabb-Upshaw rule of exclusion. The dissenting judge, in his interpretation of the Supreme Court's views as expressed in the McNabb and Upshaw cases, adopted the position that even though the commissioner's office was closed, the police should have attempted to locate a committing magistrate. He reasoned that "unless at least one magistrate is always available, secret interrogation cannot be prevented," an objective he assumed to be implicit in the Supreme Court's previous opinions.

   In view of the split decision of the Court of Appeals, and in the light of the Supreme Court's great concern over confession cases, there was good reason to believe that the Supreme Court might grant the defendants' petition to review the decision of the Court of Appeals. To the contrary, however, the Supreme Court denied the defendants' petition, thereby rendering final the Court of Appeals' affirmance of the trial court conviction.

   A refusal to review, under the circumstances involved in the Garner case, is a reasonable indication that the Supreme Court, or at least a majority of the Court, approved the decision of the court below. The net effect of the Garner case seems to be this: If an arrest is made by federal officers at a time when a federal commissioner is unavailable for arraignment (e.g., at night, on holidays, etc.), a confession obtained before a commissioner is available will not be considered invalid merely because it was made prior to the arraignment. This...