Wood v. United States, 7863.

Citation128 F.2d 265
Decision Date09 March 1942
Docket NumberNo. 7863.,7863.
PartiesWOOD et al. v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)


Mr. Francis P. Noonan, of Washington, D.C., for appellants.

Mr. Bernard Margolius, Assistant United States Attorney, with whom Mr. Edward M. Curran, United States Attorney, of Washington, D.C., and Mr. Charles B. Murray, Assistant United States Attorney, of Washington, D.C., were on the brief, for appellee.

Before GRONER, Chief Justice, and EDGERTON and RUTLEDGE, Associate Justices.

RUTLEDGE, Associate Justice.

Defendants, now appellants, were convicted of robbery. Pleas of guilty, allegedly made at the preliminary hearing in the Police Court, were admitted in evidence against them. The only question is whether this was proper. The Government says admissibility is governed solely by the law of voluntary or extrajudicial confessions, the pleas were freely made, and therefore were properly admitted. Defendants say they were obtained illegally, hence were not admissible. Violation of the privilege against self-incrimination and deprivation of the right to counsel are the grounds asserted for exclusion.

The evidence at the trial was in conflict as to both the crime and the hearing. The victim identified defendants as the robbers. The arresting officer, Bean, testified they confessed to him and the victim identified them in his presence within three days after the crime. They denied having any part in it.

Defendants pleaded guilty to three misdemeanor charges just prior to the hearing. But they said they did not know a hearing was held on the charge of robbery and at no time pleaded guilty to it. Bean and Driscoll, a Police Court clerk, contradicted this. The latter testified he read the charge aloud to the defendants and they pleaded guilty after being asked, "How do you plead, guilty or not guilty?" Bean confirmed this. Driscoll also identified the record showing that the plea had been entered. On cross-examination he said defendants were not asked whether they desired counsel nor were they cautioned or informed concerning their rights. Generally, he stated, a plea of guilty or not guilty is demanded at such hearings, and the court does not inquire whether the accused have or want counsel or caution them that they need not plead or speak. He also testified that the purpose of the plea is to determine whether the court must hear evidence in order to decide whether the parties shall be held for further proceedings.1

Defendants were without counsel at the hearing. There is nothing to show that they had counsel previously or subsequently until the arraignment eleven days before the trial. The District Court then assigned counsel to defend them and they pleaded not guilty. The appeal is in forma pauperis.

If the pleas at the preliminary hearing were obtained illegally, the judgment must be reversed. They may have clinched the case against the defendants. There was no evidence of force or constraint beyond that involved in asking them to plead and receiving their responses without advice or caution. The record does not show that defendants knew their rights. Neither is there specific denial that they had such knowledge.

The trial court took the prosecution's view that the case is governed by the law of voluntary or extrajudicial confessions and gave appropriate instructions on this theory.

But as we see them, the principal issues are two: (1) Does the privilege against self-incrimination apply to the preliminary hearing; (2) if so, was it violated? Closely related is the question whether due process requires the accused to be informed of his right to counsel before he is asked to plead at such a hearing.

Before the issues are treated separately, the foundations of the respective positions should be stated more fully. There is no controlling authority directly in point. Analogies from the most approximate decisions are perplexing. This accounts for the hiatus in the argument concerning the applicable controlling law. It arises from a strange failure in the cases to discriminate between the rule of evidence and the constitutional privilege. They have a close kinship in fundamental policy. Each purposes protection against statements uttered by the tongue, though not by the unfettered will of the accused. But the occasions for their use and the pressures against which they protect are distinct.

The rule of evidence excludes untrustworthy communications. It arises from the common law. Except rarely, it has nothing to do with refusal to testify in court. It fills no need for checking abuses of judicial inquisition. For that the privilege stands guard. Rather the rule applies, more properly and frequently, to statements uttered out of court. It protects against extrajudicial physical and moral forces, applied where the privilege has no effect, and which take away the speaker's will and make his words another's, not his own. It excludes evidence so squeezed out because it has no value as proof.

The privilege has sanction in the Bill of Rights, and before that in a long but victorious struggle of the common law. It protects against the force of the court itself. It guards against the ancient abuse of judicial inquisition. Before it judicial power, including contempt, to enforce the usual duty to testify, dissolves. No other violence or duress is needed to bring it into play than the asking of a question. It excludes response regardless of its probative value.

Alike as are their policies, confusion of their differences makes impossible proper application of the privilege and the rule of proof. Dean Wigmore rightly characterizes their prevalent confounding as "radically erroneous * * * in history, principle, and practice."2 Obscuring their functions has befuddled the results in litigated cases and smeared the signboard arrows to the next case, which is ours. With these things in mind we turn to the arguments and the decisions relied upon to support them.

As has been said, the Government urges that the plea should be regarded as a voluntary confession of guilt, hence admissible. In this view there is no question of due process or self-incrimination. The only bar arises when compulsion destroys the confession's probative value. Confessions, it is said, do not become involuntary because elicited by questions,3 or made while the confesser is under arrest,4 or in the absence of counsel,5 without warning or caution that the statement may be used against him,6 nor by the concurrence of all these conditions in a single case.7 Admittedly these principles apply when the statement is not made in the course of judicial proceedings. It is urged that they apply also to pleas of guilty made at preliminary hearings, and that the authorities uniformly sustain this view. Except when a statute prescribes the contrary rule,8 it is claimed, the plea is admitted if made "knowingly and voluntarily."9 Furthermore, it is said this is true, notwithstanding the accused is not informed of his right to counsel or cautioned in other respects.10

To support these views, the prosecution relies heavily upon Wilson v. United States, 1896, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090, and Powers v. United States, 1912, 223 U.S. 303, 32 S.Ct. 281, 56 L.Ed. 448. Neither involved a plea of guilty or a confession or admission of guilt and therefore neither is precisely in point. In the former the defendant, charged with murder and not represented by counsel, was examined before a United States Commissioner, who did not caution or advise him as to his rights. The accused made a statement denying his guilt, but it contained answers to questions which were used on the trial to contradict his testimony. The statement was received over objection made solely on the ground that it was made involuntarily. The Supreme Court applied the general law relating to extrajudicial confessions and admissions and sustained the ruling. It held the statement voluntary on the Commissioner's testimony, not denied by the defendant, that it was so made, notwithstanding he was under arrest, did not have counsel, and was not warned or cautioned as to his rights. The Court noted that the defendant did not deny knowing that he could refuse to answer or say that, knowing, he would have done so. It pointed out that "his answers were explanations, and he appeared not to be unwilling to avail himself of that mode of averting suspicion." 162 U.S. 613, 16 S.Ct. 900, 40 L.Ed. 290. His incarceration, lack of counsel and lack of warning were regarded as "matters which went to the weight or credibility of what he said of an incriminating character," and the Court added, "as he was not confessing guilt, but the contrary, we think that, under all the circumstances disclosed, they were not of themselves sufficient to require his answers to be excluded on the ground of being involuntary as matter of law." (Italics supplied)

In the Powers case the defendant, at a similar hearing, without counsel and without warning or advice by the Commissioner, volunteered a statement in his own behalf, which was held properly admitted, on the authority of the Wilson case. But, again, the statement was not a plea of guilty or a confession of guilt, and the decision was made on the basis of the rule of evidence without reference to the privilege or the right of counsel.

However, the Government concedes that a plea of guilty made on arraignment is not admissible at the trial, when it has been withdrawn and a plea of not guilty substituted. Kercheval v. United States, 1927, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009; Heim v. United States, 1918, 47 App. D.C. 485, L.R.A.1918E, 87. But it urges that the reasons for this, as given in the Kercheval case, do not apply to a plea before the committing magistrate. These were that the court's permission for withdrawal adjudges that the plea be "held for naught," so that (1) it ceases to be evidence...

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