Stein v. New York Wissner/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

If the opinion of the Court means what it says, we are entering upon a new regime of constitutional law that should give every citizen pause. Heretofore constitutional rights have had greater dignity than rules of evidence. They have constituted guarantees that are inviolable. They have been a bulwark against overzealous investigators, inhuman police, and unscrupulous prosecutors. They have placed a prohibition on practices which history showed were infamous. An officer who indulged in the prohibited practices was acting lawlessly; and he could not in any way employ the products of his lawless activities against the citizen whose constitutional rights were infringed. But now it is said that if prejudice is not shown, if there was enough evidence to convict regardless of the invasion of the citizen's constitutional right, the judgment of conviction must stand and the defendant sent to his death.

In taking that course the Court chooses a short-cut which does violence to our constitutional scheme.

The denial of a right guaranteed to a defendant by the Constitution has never been treated by this Court as a matter of mere error in the proceedings below which, if not affecting substantial rights, might be disregarded.

Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, established the rule that due process requires, in certain cases at least, that the state court appoint counsel to represent an indigent defendant. And the right to counsel includes the right to have counsel appointed in time to allow adequate preparation of the case. Neither in the Powell case nor in any of those which followed it has the weight of the evidence against the defendant been deemed relevant to the issue of the validity of the conviction. See Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Tomkins v. State of Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; De Meerleer v. People of State of Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584. In Hawk v. Olson, 326 U.S. 271, at page 278, 66 S.Ct. 116, at page 120, 90 L.Ed. 61, we said:

'Continuance may or may not have been useful to the accused     but the importance of the assistance of counsel in a serious      criminal charge after arraignment is too large to permit      speculation on its effect. * *  *

'Petitioner states a good cause of action when he alleges     facts which support his contention that through denial of      asserted constitutional rights he has not had the kind of trial in a state court which the due      process clause of the Fourteenth Amendment requires.'

A similar rule prevails where the prosecution has made knowing use of perjured testimony to convict an accused. Money v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791; Hysler v. State of Florida, 315 U.S. 411, 316 U.S. 642, 62 S.Ct. 688, 86 L.Ed. 932; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 117, 87 L.Ed. 214. It has never been thought necessary to attempt to weed the perjured testimony from the nonperjured for the purpose of determining the degree of prejudice which resulted.

In In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, we reversed a conviction for contempt based on a secret trial in which the defendant was denied reasonable notice of the charge against him, the opportunity to prepare a defense, the right to testify on his own behalf, the right to confront the witnesses against him and the right to be represented by counsel. No one, I suppose, would argue that such a conviction should be sustained merely because the record indicated quite conclusively that the defendant was guilty.

In Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, the Court dealt with a claim that the defendants had been convicted in a trial dominated by a mob. The defendants were charged with the murder of one Lee. They professed their innocence before the Court. Mr. Justice Holmes disposed of the assertion with these words:

'The petitioners say that Lee must have been killed by other     whites, but that we leave on one side as what we have to deal      with is not the petitioners' innocence or guilt but solely      the question whether their constitutional rights have been      preserved.'

Another illustration is the practice of discriminating against Negroes in the selection of juries. In none of the cases from Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567, and Carter v. State of Texas, 177 U.S. 442, 443, 20 S.Ct. 687, 688, 44 L.Ed. 839, down to Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 892, has the lack of a showing of actual prejudice precluded reversal. We indeed said in the Avery case that if the jury commissioners failed in their duty to use a nondiscriminatory method of selecting a jury, the 'conviction must be reversed-no matter how strong the evidence of petitioner's guilt.' The reason is plain. The Constitution gives Negroes the right to be tried by juries drawn from the entire community, not hand-picked from the white people alone. Must a Negro now show that he suffered actual prejudice because none of his race served on the jury?

The requirement of counsel, the right of the accused to be confronted with the witnesses against him, his right to be given notice of the charge, his right to a fair and impartial tribunal, his right to a jury drawn from a fair cross-section of the community-none of these guarantees given by the Constitution is more precise than the prohibition against coerced confessions.

The rule now announced is, indeed, contrary to our prior decisions dealing with the effect of a coerced confession on a judgment of conviction. See Malinski v. People of State of New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029; Stroble v. State of California, 343 U.S. 181, 190, 72 S.Ct. 599, 603, 96 L.Ed. 872; Lyons v. State of Oklahoma, 322 U.S. 596, 597, 64 S.Ct. 1208, 1210, 88 L.Ed. 1481; Haley v. State of Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303, 92 L.Ed. 224; and Gallegos v. State of Nebraska, 342 U.S. 55, 63, 72 S.Ct. 141, 146, 96 L.Ed. 86.

The Court's characterization of these rulings as dicta is not correct. In the Malinski case a conviction was reversed even though other evidence might have supported the verdict. In the Lyons case (where the second confession was drawn in question) we noted, 322 U.S. at page 598, 64 S.Ct. at page 1210, that a third confession was introduced without objection. Yet in spite of that fact we devoted a whole opinion to an analysis of whether the second confession was voluntary. In the Stroble case the California Supreme Court had held that the use of a challenged confession had not deprived petitioner of due process, since it did not appear that the outcome of the trial would have been different if the confession had been excluded. 343 U.S. at page 189, 72 S.Ct. at page 603. We disapproved that view and proceeded on the authority of our decisions in the Malinski and Lyons cases to examine the facts surrounding the confession to see if it was voluntary. Id., 343 U.S. at pages 190-191, 72 S.Ct. at pages 603-604.

In each of those three cases we dealt with the merits of the claims that the confessions were coerced-a wholly unnecessary task had the rule as stated in the Malinski case not been controlling.

And with respect to the Malinski case, it should be noted that, despite a dissent by four Justices, no one took exception to the rule that the use of a coerced confession violates due process.

Perhaps the decision in the instant cases is premised on the view that Due Process prohibits the use of coerced confessions merely because of their inherent untrustworthiness. If so, that too is a radical departure from the rationale of our prior decisions. In Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166, Mr. Justice Roberts, speaking for the Court concerning the inadmissibility of coerced confessions, said:

'The aim of the requirement of due process is not to exclude     presumptively false evidence, but to prevent fundamental      unfairness in the use of evidence whether true or false.'

As Mr. Justice FRANKFURTER states in his dissenting opinion that rule is the product of a civilization which by respecting the dignity even of the least worthy citizen raises the stature of all of us and builds an atmosphere of trust and confidence in government.

The practice now sanctioned is a plain violation of the command of the Fifth Amendment, made applicable to the States by the Fourteenth, see Brown v. State of Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 465, 80 L.Ed. 682; Chambers v. State of Florida, 309 U.S. 227, 238, 60 S.Ct. 472, 477, 84 L.Ed. 716, that no man can be compelled to testify against himself That should be the guide to our decisions until and unless the Fifth Amendment is itself amended to incorporate the rule the Court today announces.