Hess, Lester Clay, Jr.

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Volume 67 | Issue 4 Article 6June 1965Constitutional Law--The Scope of the EscobedoRuleLester Clay Hess Jr.West Virginia University College of LawFollow this and additional works at: https://researchrepository.wvu.edu/wvlrPart of the Constitutional Law Commons, Criminal Law Commons, and the Criminal ProcedureCommonsThis Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been acceptedfor inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contactian.harmon@mail.wvu.edu.Recommended CitationLester C. Hess Jr., Constitutional Law--The Scope of the Escobedo Rule, 67 W. Va. L. Rev. (1965).Available at: https://researchrepository.wvu.edu/wvlr/vol67/iss4/6CASE COMMENTSrule. The court also seemed well aware of the problems which itcould be inviting through abandonment of the "place of wrong"rule. But the court stated that the fact that a new rule tended toincrease litigation, or made the law more difficult to apply ormore unpredictable, was not in itself sufficient reason to retain arule which is unsound, unjust or inadequate.Whatever may be the difficulties that lie ahead, a trend awayfrom the "place of wrong" rule has been established. This does notnecessarily mean that all American courts are quickly going todiscard the old rule for the sake of something new. The law isslow to change even where there is urgent need for reform. Thereis not unanimity of opinion in the profession that a change isnecessary, or even desirable. Sparks, Babcock v. Johnson-a Prac-ticing Attorney's Reflection upon the Opinion and Its Implications,31 INs. CouNsE. j. 428 (1964). It may very well be that experiencewill force some of the more venturesome courts to return to thesanctuary of the old rule. Certainly there are formidable problemsahead for those courts which choose this new approach to the choiceof law. Some very anomalous results are sure to follow. It is a safespeculation that there will be much trial and error before a work-able body of law evolves. Regardless of the outcome, the next fewyears are certain to be decisive ones in this field of conflict of laws.Charles Edward BarnettConstitutional Law-The Scope of the Escobedo RuleD was taken to police headquarters where he was interrogatedby officers who suspected he was in possession of obscene film.Approximately five hours after D's original detention and at a timewhen he had not yet been advised that he was under arrest, Dconfessed. During this period D did not request counsel. The con-fession was subsequently used against D and he was found guilty ofknowingly possessing obscene motion picture films for purpose ofloan. Held, reversed and remanded. The chief judge, with whomone other judge agreed, held in his majority opinion that when adefendant is interrogated in an accusatory investigation while inthe custody of police, he must be advised of his right to assistanceof counsel as well as of his right to remain silent. The majorityalso justified the result on the basis of arrest without probable cause1965]1Hess: Constitutional Law--The Scope of the Escobedo RulePublished by The Research Repository @ WVU, 1965WEST VIRGINIA LAW REVIEWand the use of illegal evidence which-like the confession-was fruitof the unlawful arrest. Two other judges concurred, but only be-cause of what they considered improper procedure by the trialcourt regarding the question of voluntariness of the confession.They were of the opinion that the court was not called upon todetermine whether a suspect who has not requested counsel isnevertheless entitled to advice by police regarding his right tocounsel and of his right to remain silent. State v. Dufour, 206A.2d 82 (R.I. 1965).The landmark case of Gideon v. Wainwright, 372 U.S. 335 (1963),firmly established that if an indigent defendant demands counselat trial time and is refused, his constitutional rights have been vio-lated and he is entitled to a new trial. The decision stressed thatthe right of counsel is a fundamental right, essential to a fair trial.The right is applicable in a federal proceeding because of the sixthamendment and is made obligatory in a state proceeding byabsorption through the due process clause of the fourteenth amend-ment. Gideon, however, left unanswered the gaping question ofwhether the right to counsel attaches only at trial time or at anearlier phase in the proceedings.The Supreme Court of the United States faced precisely thisissue in Escobedo v. Illinois, 378 U.S. 478 (1964). Prior to hisconfession, Danny Escobedo had conferred with counsel. Whenthe interrogation became intensified, he made repeated requests toconfer again with his counsel and his counsel did likewise. Theironly communication came when Escobedo saw his attorney motionto him in the police station during the interrogation. The defend-ant, by his own admission, took this to impart renewed advice tomaintain silence. Escobedo subsequently confessed without beingpermitted to talk with his attorney. Further, the officers failedto warn him of his right to remain silent.The Court, in a five-four decision, held that Escobedo's consti-tutional rights had been violated. The sixth amendment assuresthe right to counsel from the beginning of the "prosecution," asdistinguished from the "trial." Mr. Justice Goldberg, speaking forthe majority, enunciated the rule that where an investigation hasbegun to focus upon a particular suspect, whose request for counselhas been denied and who has not received a warning as to his rightto remain silent, that suspect has been deprived of his rights under[Vol. 672West Virginia Law Review, Vol. 67, Iss. 4 [1965], Art. 6https://researchrepository.wvu.edu/wvlr/vol67/iss4/6CASE COMMENTSthe sixth amendment. The Court thus expanded the constitutionalrole of legal counsel beyond the tradition functions and dutiessurrounding trial type proceedings. The ruling appears to makethe adversary atmosphere of the courtroom a necessary ingredientof criminal investigation when the "focus is on the accused" with the"purpose to elicit a confession." Danny Escobedo was entitled tothis adversary atmosphere as a matter of constitutional right. Ineffect, this converts the decision to confess into a tactical decisionon the part of the defense. Enker and Elsen, Counsel for theSuspect, 49 MN. L. IEv. 47,48 (1964). It is significant that DannyEscobedo's confession was inadmissible because it would be funda-mentally unfair to admit it and not because police tactics mighthave rendered his admissions unreliable or untrustworthy.The rationale of the principal case is based to a large extent onthe rule in Escobedo. There was, however, no request by Dufourto confer with his attorney. Despite this difference, the RhodeIsland court held that the right to counsel was absolute and thatany rule necessitating a request for counsel is an "artificial require-ment." The Rhode Island court cited a likewise liberal extensionof the Escobedo rule in People v. Dorado, 394 P.2d 952 (Calif.1964). In Dorado, the court held that when police officers failedto advise the accused of his right to remain silent or the right toconsult with counsel, his subsequent confession would be inad-missible even though he had not made a formal request for counsel.In a re-hearing the California court stated in a four-three decisionthat the "constitutional right [to counsel] does not arise from therequest for counsel but from the advent of the accusatory stageitself."A privilege lurking just below the surface in cases of this naturemerits mention. It must be remembered that an individual mayknowingly waive his privilege against self-incrimination and hisright to counsel either at the pretrial stage or at the trial. Johnsonv. Zerbst, 304 U.S. 458 (1938). However, the theory behind thebroad application of the Escobedo rule in the principal case is thatif the suspect is unaware of his rights and does not request counsel,he should not be prejudiced by his ignorance. This interpretationfinds further footing in Carnley v. Cochran, 369 U.S. 506 (1962),where Mr. Justice Brennan stated that "where the assistance ofcounsel is a constitutional requisite, the right to be furnished coun-sel does not depend on a request."1965]3Hess: Constitutional Law--The Scope of the Escobedo RulePublished by The Research Repository @ WVU, 1965WEST VIRGINIA LAW REVIEWA fact situation similar to those in Dorado and the principal caserecently came before the Supreme Court of Oregon. Althoughskirting the issue of whether a request is a necessary requisite forright to counsel, the court interpreted the rule in Escobedo to meanthat the state must affirmatively show a warning to the accusedof his constitutional right to remain silent. State v. Neely, 395P.2d 557 (Ore. 1964). The suspect is thus protected from an ab-dication, through unawareness, of his constitutional rights. Theright protected by the Oregon court was the right to a warningconcerning self-incrimination (fifth amendment), rather than awarning concerning effective representation by counsel at all stagesof the criminal proceeding (sixth amendment). With this in mind,it is interesting to inspect the underlying basis for the Escobedodecision. Since Danny Escobedo interpreted the motions of hiscounsel as renewed advice to remain silent, it has been suggestedthat it is doubtful whether the failure of police to so advise himwas central to the Court's decision. Enker and Elsen, supra at 60.The Court's concern with protecting an accused from coercion bypolice officers is obvious. In fact, the real vice in Escobedo seemsto be the persistent and secluded questioning of the suspect.While the decisions discussed to this point have stressed that theright to counsel accrues at some point before the actual trial, thispolicy has not been universally approved. Consequently, a numberof state courts have refused to extend the rule in Escobedo as theRhode Island court did in the principal case. The main argumentagainst presence of counsel at this point in the proceedings is thatit impedes what has traditionally been considered proper policequestioning, as well as coercive tactics. It may very well result inthe suppression of truth rather than its disclosure. This is becausecounsel, aware of the significance which an accused's admissionsmay have in building the prosecution's case, would normally tellhis client to remain silent as a tactical decision. As a result, notonly will coerced confessions be eliminated, but so will voluntaryones which will generally contain the truth. In essence, the ac-cused's rights are increased, but at the expense of the search fortruth.One of the first cases to be decided contra to Dufour and Doradoand their liberal extensions of Escobedo was People v. Hartgraves,202 N.E.2d 33 (Ill. 1964). The court stated that it did not "readthe Escobedo case as requiring" the rejection of a voluntary con-[Vol. 674West Virginia Law Review, Vol. 67, Iss. 4 [1965], Art. 6https://researchrepository.wvu.edu/wvlr/vol67/iss4/6CASE COMMENTSfession merely because the state did not caution the accused ofhis right to have an attorney and his right to remain silent beforehis admissions of guilt. Similarly, the Nevada court recently heldthat where the accused did not request counsel, the fact that hewas not affirmatively warned of his attendant rights did not renderhis confession inadmissible. Bean v. State, 398 P.2d 251 (Nev.1965). This court also pointed out that Escobedo was not con-trolling since it was necessarily limited to the facts in that particularcase.In Commonwealth v. Patrick, 206 A.2d 295 (Pa. 1965), a liberalextension of Escobedo was discarded in favor of the traditional testof voluntariness of the confession. The court stated that a "con-fession made during the interrogation by police, of voluntarilymade, may be constitutionally admissible" (italicized in original)even though the accused was neither warned of his right to counselnor his right to remain silent. The Pennsylvania court therebyapplied a subjective test rather than an objective test, such as theprophylactic rule enunciated in Dufour and Dorado.The West Virginia court may soon have an opportunity to de-termine the thrust of Escobedo. In State v. Morris, petition forwrit of error and supersedeas filed, there is some question as towhether the defendant actually requested to consult with an attor-ney. Counsel for the defendant argues in his petition that thestate, nevertheless, has an affirmative duty to advise the accusedof his right to counsel and of his right against self-incrimination.However, counsel also relied on other grounds, including faultyarrest, search not incident to arrest, and denial of an immediatehearing.Perhaps the full sweep of Escobedo will not be known until theSupreme Court of the United States passes on a case involving the"fruits of the poisonous tree" doctrine. The "focus" and "purpose"test promulgated in Escobedo would be greatly compounded if theCourt were to hold that not only the admissions obtained but allleads developed from them were to be suppressed. Moreover, boththe animate and inanimate "fruits" of an otherwise voluntary con-fession may become ipso facto inadmissible if the Court adoptsthe prophylactic rule in the principal case and holds that policeofficers must affirmatively advise an accused of his right to counseland his right to remain silent.1965]5Hess: Constitutional Law--The Scope of the Escobedo RulePublished by The Research Repository @ WVU, 1965WEST VIRGINIA LAW REVIEWThe Supreme Court's concern with the constitutional rights ofan accused in the back room of the police station is obviouslylegitimate. Roscoe Pound recognized in 1934 the problem causedby incommunicado grilling and suggested the solution achieved inEscobedo regarding right to counsel. He also submitted that thereshould be an express provision for a legal examination of suspectedof accused persons before a magistrate as well as a provision fortaking down evidence so as to guarantee accuracy. 24 J. CraM. L. &C. 1014, 1017 (1934). If these safeguards are to be incorporatedin police investigatory methods, they apparently will get therethrough judicial determination of constitutional rights of the ac-cused. Whether Dufour is a proper extension of Escobedo andwhether the right to counsel becomes operative only upon requestare only two of many determinations which should be reached indelineating the proper balance between the accuser and theaccused.Lester Clay Hess, Jr.Constitutional Law-Conscientious ObjectorsDaniel Andrew Seeger, Arno Sascha Jakobson and Forrest BrittPeter were convicted of refusing to submit to induction into thearmed forces as required by federal law. 50 U.S.C. § 456 (j)(1958). This law exempts from military service persons who byreason of religious training and belief are conscientiously opposedto any participation in war. The act defines religious training andbelief as "an individual's belief in a relation to a Supreme Beinginvolving duties superior to those arising from any human relation,but does not include essentially political, sociological, or philo-sophical views or a merely personal code."The defendants expressed varied beliefs. Seeger stated that hisbelief was a "belief in and devotion to goodness and virtue fortheir own sakes, and a religious faith in a purely ethical creed."He did not, however, disavow a belief in relation to a SupremeBeing. Jakobson said that he believed in a "Supreme Being" whowas the "Creator of Man" in the sense of being "ultimately respons-ible for the existence of" and who was "the Supreme Reality" ofwhich "[Tihe existence of man is the result." Peter stated that thesource of his conviction was "our democratic American culture[Vol. 676West Virginia Law Review, Vol. 67, Iss. 4 [1965], Art. 6https://researchrepository.wvu.edu/wvlr/vol67/iss4/6

Constitutional Law--The Scope of the Escobedo Rule

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Constitutional Law--The Scope of the Escobedo Rule

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