Stein v. New York Wissner/Dissent Black

Mr. Justice BLACK, dissenting.

I concur in Mr. Justice DOUGLAS' opinion.

More constitutional safeguards go here-one, the right of a person to be free from arbitrary seizure, secret confinement and police bludgeoning to make him testify against himself in absence of relative, friend or counsel; another, the right of an accused to confront and cross-examine witnesses who swear he is guilty of crime. Tyrannies have always subjected life and liberty to such secret inquisitorial and oppressive practices. But in many cases, beginning at least as early as Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, this Court set aside state convictions as violative of due process when based on confessions extracted by state police while suspects were held incommunicado. That line of cases is greatly weakened if not repudiated by today's sanction of the arbitrary seizure and secret questioning of the defendants here. State police wishing to seize and hold people incommunicado are now given a green light. Moreover, the Court actually holds (unnecessarily, I think) that states are free to deny defendants an opportunity to confront and cross-examine witnesses who testify against them, even in death cases. This also runs counter to what we have said due process guarantees an accused. In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682. Lastly, today's opinion takes this opportunity to narrow the scope this Court has previously given the Fifth Amendment's guarantee that no person 'shall be compelled in any criminal case to be a witness against himself.' Bram v. United States, 168 U.S. 532, 544, 18 S.Ct. 183, 187, 42 L.Ed. 568, held that this constitutional provision forbids federal officers to 'browbeat' an accused, or to 'push him into a corner, and to entrap him into fatal contradictions * *  * .' The Court adds the Bram case to those it repudiates today, apparently agreeing with Professor Wigmore that Mr. Justice White's opinion there represents 'the height of absurdity *  *  * .'

In short, the Court's holding and opinion break down barriers that have heretofore stood in the way of secret and arbitrary governmental action directed against persons suspected of crime or political unorthodoxy. My objection to such action by any governmental agent or agency has been set out in many opinions. See for illustration, Chambers v. State of Florida, supra, and Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Id., 327 U.S. 274, 66 S.Ct. 544, 90 L.Ed. 667 (alleged confessions extracted without violence while suspects held incommunicado at the mercy of police officers); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (secret conviction based on incommunicado questioning by three judges where the accused had neither relative, friend or counsel present); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 142, 71 S.Ct. 624, 633, 95 L.Ed. 817 (Attorney General's public condemnation of groups as treasonable and subversive based on secret information without notice or hearing); dissenting opinions, Gallegos v. State of Nebraska, 342 U.S. 55, 73, 72 S.Ct. 141, 151, 96 L.Ed. 86 (arbitrary arrest, secret imprisonment and systematic questioning to obtain an alleged confession); Carlson v. Landon, 342 U.S. 524, 547, 72 S.Ct. 525, 537, 96 L.Ed. 547 (Attorney General's denial of bail based on secret charges by secret informers without affording accused a hearing); Ludecke v. Watkins, 335 U.S. 160, 173, 68 S.Ct. 1429, 1435, 92 L.Ed. 881 (Attorney General's judicially unreviewable banishment of an alien based on secret undisclosed information and without a hearing); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 216, 73 S.Ct. 625, 631 (Attorney General's judicially unreviewable imprisonment and denial of bail to an alien based on secret undisclosed information and without a hearing).

I join Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS in protesting the Court's action in these cases.