Stroble v. California/Dissent Douglas

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

My views on the illegality of confessions obtained between the time of arrest and arraignment are contained in Watts v. Indiana, 338 U.S. 49, 56-57, 69 S.Ct. 1347, 1351, 93 L.Ed. 1801; Turner v. Com. of Pennsylvania, 338 U.S. 62, 66-67, 69 S.Ct. 1352, 1353, 1354, 93 L.Ed. 1810; Harris v. South Carolina, 338 U.S. 68, 71-73, 69 S.Ct. 1354, 1356, 1357, 93 L.Ed. 1815. The practice of obtaining confessions prior to arraignment breeds the third degree and the inquisition. As long as it remains lawful for the police to hold persons incommunicado, coerced confessions will infect criminal trials in violation of the commands of due process of law.

The facts of this case illustrate the evils of this police practice. While the defendant was being held by the police prior to his arraignment, a lawyer tried to see him. The police refused the lawyer's repeated requests. It was only after a confession was obtained that the lawyer was allowed to talk with the prisoner. This was lawless conduct, condemned by the Supreme Court of California. It was not only lawless conduct; it was conduct that produced a confession.

This confession as well as subsequently obtained confessions were used at the trial. The fact that the later confessions may have been lawfully obtained or used is immaterial. For once an illegal confession infects the trial, the verdict of guilty must be set aside no matter how free of taint the other evidence may be. Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029.

Moreover, the fact that the accused started talking shortly after he was arrested and prior to the time he was taken before the District Attorney does not save the case. That talk was accompanied or preceded by blows and kicks of the police; and the Supreme Court of California assumed that it was part and parcel of the first confession obtained through 'physical abuse or psychological torture or a combination of the two.'