fred e. inbau: 'the importance of being guilty

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1977

Fred E. Inbau: 'The Importance of Being Guilty'Yale KamisarUniversity of Michigan Law School, [email protected]

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Recommended CitationKamisar, Yale. "Fred E. Inbau: 'The Importance of Being Guilty'." J. Crim. L. & Criminology 68 (1977): 182-97.

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THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGYCopyright © 1977 by Northwestern University School of Law

Vol. 68, No. 2Printed in U.S.A.

FRED E. INBAU: "THE IMPORTANCE OF BEING GUILTY"*

YALE KAMISAR**

"The scholar may lose himself inschools, in words and become apedant; but when he comprehendshis duties, he above all men isa realist."

- Emerson

I

As fate would have it, Fred Inbau graduatedfrom law school in 1932, the very year that,

"for practical purposes the modern law of con-

*[Another] general trend has been the Burger

Court's concern with what I call the importanceof being guilty.... From the defense point ofview this means that in the argument of a caseat the appellate level it is extraordinarily impor-tant today, as it really was not in the 1969's, totry to establish for the client a tolerable claim ofinnocence. Looking at the same litigation fromthe State's point of view, the State representativein appellate litigation today should be clear inarguing that regardless of what occurred in theproceedings, the individual defendant beforethe court is a guilty individual .... That kindof argument is likely to be persuasive with theBurger Court in a way that it clearly would nothave been with the Warren Court.

Whitebread, Trends in Constitutional Law: A Forecast,in CONSTITUTIONAL LAW DESKBOOK 9-1 (NationalCollege of District Attorneys ed. 1977). See alsoFriendly, Is Innocence Irrelevant? Collateral Attack onCriminal Judgments, 38 U. Cm. L. REV. 142 (1970).

The argument that "the individual defendant be-fore the court is a guilty individual" can carry only sofar. That it did not prevail in the recent case ofBrewer v. Williams, 97 S. Ct. 1232 (1977), hardlyrefutes Professor Whitebread's point. If anything,the fact that "Williams is guilty of the savage murderof a small child; no member of the Court contendsthat he is not," id. at 1248 (Burger, C.J., dissenting),persuaded, or helped persuade, four Justices touphold the admissibility of the confession in the faceof "so clear a violation of the Sixth and FourteenthAmendments as here occurred," id. at 1248 (Stewart,J., majority opinion) tends to support Whitebread'sview.

Inbau, of course, would have no trouble at allupholding Williams' confession. Indeed, the detec-tive's "Christian burial speech" ("[Y]ou yourself arethe only person that knows where this little girl'sbody is..: I feel [that the parents] should be en-titled to a Christian burial for [their] little girl [andthat] we should stop and locate it on the way... ")

stitutional criminal procedure [began], with thedecision in the great case of Powell v. Alabama."IIn "the 'stone age' of American criminal proce-

reads like an Inbau hypothetical. The "speech" wouldonly get results if Williams were guilty; it "did not,and was not likely to, jeopardize the fairness of[Williams'] trial or in any way risk the conviction of aninnocent man" 97 S. Ct. at 1259 (White, J., joined byBlackmun and Rehnquist, JJ., dissenting). And In-bau's "test of confession admissibility" has long been:

"Is what I am about to do or say apt to make aninnocent person confess?"

If the answer to the above question is "No,"the interrogator should go ahead and do or saywhatever was contemplated ....

In our judgment this is the only understand-able test of confession admissibility.... More-over, it is also the only test that is fair both tothe public and to the accused....

F. INBAU & J. REID, CRIMINAL INTERROGATION AND

CONFESSIONS 157 (Ist ed. 1962). Although this wasthe original meaning of the "voluntariness" test, itcannot be squared, I submit, with what the Courthad been doing in the fifteen years preceding Esco-bedo v. Illinois, 378 U.S. 478 (1964), nor even, per-haps, what it did as early as Ashcraft v. Tennessee,322 U.S. 143 (1944). See A. BEISEL, CONTROL OVERILLEGAL ENFORCEMENT OF THE CRIMINAL LAW: ROLEOF THE SUPREME COURT 70-86 (1955); Allen, DueProcess and State Criminal Procedures: Another Look, 48Nw. U.L. REV. 16, 20-25 (1953); Allen, The SupremeCourt, Federalism and State Systems of CriminalJustice, 8DE PAUL L. REV. 213, 233-40 (1959); Meltzer, Invol-untary Confessions: The Allocation of Responsibility Be-tween Judge and Jury, 21 U. CHI. L. REV. 317, 326-29,343, 347-49 (1954); Paulsen, The Fourteenth Amendmentand the Third Degree, 6 STAN. L. REV. 411, 417-23(1954). See generally Kamisar, What Is an InvoluntaryConfession? Some Comments on Inbau and Reid's CriminalInterrogation and Confessions, 17 RUTGERS L. REV. 728(1963). See also Kamisar, A Confession's Trustworthiness,It is Argued, Isn't Enough, N.Y. Times, May 14, 1977,at 19, col. 2.

** Professor of Law, University of Michigan.I Allen, The Judicial Quest for Penal Justice: The

Warren Court and the Criminal Cases, 1975 U. ILL. L.F.518,521.

HeinOnline -- 68 J. Crim. L. & Criminology 182 1977

THE IMPORTANCE OF BEING GUILTY

dure,"2 Inbau began his long fight to shape orto retain rules that "make sense in the light ofa policeman's task,"3 more aware than mostthat so long as the rules do so, "we will be in astronger position to insist that [the officer] obeythem."4

Inbau was a pioneer in American constitu-tional criminal procedure and something of aprophet. He discerned events in their begin-nings, he foresaw what was coming and heforewarned others.

This is evident in his 1942 book, Lie Detectionand Criminal Interrogation,5 where he sought toclassify the kinds of cajolery and deception towhich the police interrogator might and mustnot resort- and to explain why- an issue whichat this late date is still "largely unresolved. '

"6 Itis evident, too, in Inbau's famous 1948 article,The Confession Dilemma in the United States Su-

2 Kamisar, Kauper's 'Judicial Examination of the Ac-cused" Forty Years Later-Some Comments on a Remarka-ble Article, 73 MICH. L. REV. 15, 16 (1974).

' Paulsen, Safeguards in the Law of Search and Sei-zure, 52 Nw. U.L. REV. 65, 66 (1957).

4Id. But Inbau also told the police, very early inhis career, that they themselves "must share a largeportion of the blame for the unfortunate practicalresult of decisions such as those in the McNabb [case].Known instances of miscarriages of justice resultingfrom the use of force and threats in obtaining confes-sions have rightfully induced the courts to view withcaution all criminal confessions. Better interrogationpractices on the part of the police profession as awhole would undoubtedly result in sounder andmore practical legal decisions involving criminalconfessions." Inbau, The Courts on Confessions, THE

POLICE DIGEST, Dec. 1943, at 13, 15.5 F. INBAU, LIE DETECTION AND CRIMINAL INTER-

ROGATION 119-33 (1st ed. 1942).0 H. UVILLER, THE PROCESS OF CRIMINAL JUSTICE:

INVESTIGATION 569 (1974). "Oddly," notes ProfessorUviller, "the few [post-Miranda] lower court decisionsaddressing deception in interrogation seem reluctantto forbid all forms of misrepresentation, particularly[when] neither shocking nor of the sort which createsthe hazard that the innocent suspect might be in-duced to confess falsely." Id. See Frazier v. Cupp,394 U.S. 731 (1969) (admitting a confession in a pre-Miranda case although the police had falsely told thedefendant that another had confessed and had also"sympathetically" suggested that the victim's homo-sexual advances may have started the fight). See alsoOregon v. Mathiason, 97 S. Ct. 711 (1977) (percuriam) (holding that Miranda warnings need nothave been given under the circumstances). "What-ever relevance [the interrogator's false statement todefendant that his fingerprints had been discoveredat the scene] may have to other issues in the case, ithas nothing to do with whether [defendant] was incustody for purposes of the Miranda rule." Id. at 714.

preme Court,7 where, drawing upon his rich lawenforcement background, he roundly con-demned the McNabb decision' on the verygrounds upon which the Mallory case 9 was crit-icized fourteen years later and for the veryreasons that the so-called McNabb-Mallory rulewas repealed, more or less, some twenty-fiveyears later.10

Inbau's pioneering spirit was also evident inhis very first classes at the Northwestern Uni-versity School of Law. So one of his mostillustrious students, Frank Allen, himself agreat explorer and early pathfinder in thisfield, has often told me. Inbau wrung dry therelatively few Supreme Court cases then on thebooks, perceiving and fretting over all their"dangerous" implications. Long before therewere any courses or casebooks bearing thattitle, Inbau taught criminal procedure and itsconstitutional dimensions-all the while heyearned for, and fought for, the day whencriminal procedure would have no (or at leastvery few) constitutional dimensions.

How did his students receive him? How didthe world receive him? Inbau is - well, Inbau.In the classroom, no less than outside, he was(depending upon your point of view), amusingor exasperating, sensible or outrageous, inspir-ing or infuriating. Whatever the various reac-tions he engenders, how6ver, I doubt that anyof his students could forget him or his subjectmatter or how deeply he cared about it. Manyof his students, hopefully, were less impressedthan he with "the importance of being guilty,"but (long before this could be said of most lawfaculties) all of his students, happily, werebound to be impressed with the importance ofconstitutional criminal procedure.

McNabb (1943) and Ashcraft (1944) greatlyworried Inbau. Although the McNabb-Malloryrule, which held inadmissible in federal courtsincriminating statements made during unlaw-ful detentions, was fashioned "quite apart fromthe Constitution"1 and in the exercise of theCourt's "supervisory authority over the admin-istration of [federal] criminal justice," I3 Inbaufeared that some day the Court would find it

7 43 ILL. L. REv. 442 (1948).8 McNabb v. United States, 318 U.S. 332 (1943).9 Mallory v. United States, 354 U.S. 449 (1957).10 18 U.S.C. § 3501(c) (1970).11 Ashcraft v. Tennessee, 322 U.S. 143 (1944).12 318 U.S. at 341.13 Id.

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YALE KAMISAR

mandated by the "minimal historical safe-guards ... summarized as 'due process oflaw,'""4 and thus binding on state courts as wellas federal. Ashcraft alarmed him no less thanMcNabb. The Ashcraft Court had branded

thirty-six hours of continuous police interroga-tion "inherently" or "conclusively" coercive,and Inbau feared that some day the Courtwould regard all extended police questioning-maybe even any police questioning- "inher-ently coercive." To Inbau, then, McNabb andAshcraft were unexploded grenades rollingaround in the interrogation room-and he re-acted accordingly. Inbau thought, as did I(arriving on the scene much later), thatMcNabbwould explode first, 5 but we now know that itonly fizzled. The live bomb, and the biggerone, turned out to be that contained in Ash-craft. '

6

The only thing I have ever found surprisingabout the Ashcraft case is that three Justicesdissented. 17 1 wish a tape recording of this long

14 "Judicial supervision of the administration ofcriminal justice in the federal courts implies the dutyof establishing and maintaining civilized standards ofprocedure and evidence. Such standards are notsatisfied merely by observance of those minimal his-toric safeguards for securing trial by reason whichare summarized as 'due process of law'. . ." Id. at 340(Frankfurter, J.). Inbau often referred to the McNabbcase or the McNabb-Mallory rule as the "civilizedstandards" rule. See note 48 infra.

" See, e.g., Watts v. Indiana, 338 U.S. 49, 57 (1949)(Douglas, J., concurring): "Detention without ar-raignment is a time-honored method for keeping anaccused under the exclusive control of the police....We should unequivocally condemn the procedureand stand ready to outlaw ... any confession ob-tained during the period of the unlawful detention.The procedure breeds coerced confessions. It is theroot of the evil."

16 Cf. Brief for the State of Illinois, Escobedo v.Illinois, 378 U.S. 478 (1964), reprinted in Y. KAMISAR,W. LAFAVE & J. ISRAEL, MODERN CRIMINAL PROCE-DURE 522 (4th ed. 1974):

'To push the right to counsel back to the pointof arrest and to exclude all incriminating state-ments obtained from an uncounselled defend-ant anytime thereafter as a product of a four-teenth amendment violation would be, in effect,to impose the McNabb-Mallory rule on the states.'[quoting Kamisar, The Right to Counsel and theFourteenth Amendment, 30 U. CHI. L. REV. 1, 9(1962).] Indeed, it would be to go beyond theMallory rule which forbids the admission inevidence only of those statements taken duringa period of unlawful detention which may not,in any given case, begin at the moment of arrest.17 322 U.S. at 156 (Jackson, J.,joined by Roberts &

Frankfurter, J.J., dissenting).

stretch of questioning had been available andthat the Justices had listened to it, much asthey view "dirty movies" in a screening roomset up for that purpose. Whether or not aJustice can intelligibly define "coercive ques-tioning," I think he would "know it" when heheard it.'

I have often played portions of the tape-recorded six-hour interrogation in the Bironmurder case 9 to my students. The interroga-

18 See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964)(Stewart, J., concurring).19 State v. Biron, 266 Minn. 272, 123 N.W.2d 392

(1963), noted in 48 MINN. L. REV. 160 (1963).Biron was questioned by members of the homicide

division of the Minneapolis police department. Thedecision to tape record the questioning was not madewith the intent to offer the tape in evidence (or withany expectation that it would wind up in evidence),but on the premise that the suspect would "crack"quickly and that the playing of Biron's taped confes-sion to his accomplices would lead them to do like-wise. But Biron "held out" longer than expected andvarious detectives took turns questioning him, someof whom did not know they were on tape.

Biron's defense lawyer somehow learned that atape of his client's police interrogation existed andwhen a member of the homicide division so admitted,the tape was put into evidence. Copies are on file inthe University of Minnesota and University of Michi-gan law libraries.

The five detectives who questioned Biron at onetime or another were veteran interrogators. Shortlythereafter, one of them became head of the policedepartment. Some of their tactics, such as those theMinnesota Supreme Court held invalidated Biron'sconfession, would be sharply condemned by Inbau,e.g., the misrepresentation that despite the fact Bironwas slightly "over-age" he might be treated as ajuvenile offender if he "cooperates." As the extractsin the next footnote illustrate, however, many oftheir interrogation techniques were recommendedby the standard manuals, e.g., keeping the "subject"on the defensive, displaying an air of confidence inthe "subject's" guilt, stressing the futility of resistance,sympathizing with the offender, and minimizing themoral seriousness of his offense. See the discussionin Miranda v. Arizona, 384 U.S. 436, 449-55 (1966).See also Kamisar, What is an "Involuntary" Confession?Some Comments on Inbau and Reid's Criminal Interroga-tion and Confessions, 17 RUTGERS L. REV. 728, 729-32(1963); Weisberg, Police Interrogation of Arrested Per-sons: A Skeptical View, 52J. CRIM. L.C. & P.S. 21, 23-26 (1961), reprinted in POLICE POWER AND INDIVIDUALFREEDOM 153, 155-58 (C. Sowle ed. 1962).

There is no reason to think that the tactics em-ployed by Biron's experienced interrogators wereany different than those they had utilized in scoresof other cases over the years. So far as I know, thiswas the only "confession" they ever lost (at least upto that point), and it was also the only time a tape oftheir interrogation appeared in the record.

(Vol. 68



tors neither engaged in nor threatened anyviolence but their urging, beseeching, whee-dling, nagging Biron to confess is so repetitiousand so unrelenting20 that two hours of listening isabout all most students can stand. Thirty-sixhours? Breathes there a police interrogatorwho can question anyone for that length oftime? Small wonder that Ashcraft's interroga-

" A representative sampling follows:All we're interested in is the truth, John....We'll know when you're lying.... You don'tknow what we know, do you? You don't knowone bit.... Now, we know you didn't intend tokill this woman.... You ain't the only guy whoever made a mistake.... All we want is thetruth, John.... Well, were you drinking? Youdidn't deliberately set out to kill a woman. Youaren't that kind of a kid. We know that ....You're in trouble, John; let us help you ....Just get it off your chest. We know you didn'tmean to kill her.... You've already told us partof the story. You've gone part way, now go allthe way .... All we're interested in is thetruth .... Why you've got to lie to cover a lie,you know that .... You've gone part way, why notgo all the way? Help yourself for a change ....Make it easy on yourself, make it easy on every-body .... Everybody makes mistakes. This isn'tJohn the Baptist you're talking to, you know ....Quit lying. We know when you're lying ....This is your opportunity to help yourself. Wedon't have to waste our time with you. We knowyou did it. You're in the crap-right up to yourears. This is your opportunity. We've got you-we've got yougood.... Quit lying.... If you'renot lying, how come you're so nervous?... Youjust can't bring yourself to admit it.... It takesa lot of guts to tell the truth .... You'll feel alot better when you get it off your chest. You'renot stupid. You know that .... Were you drink-ing? All it takes is a couple of drinks and yourmind gets woozy. Is that how it happened?...It's not unusual for a kid like you to get intotrouble. You're in trouble, my friend; this is yourchance to get out of it .... This has happenedbefore; you're not the first kid to get into trou-ble .... Look, I've heard everything in thisbusiness. There isn't anything you can tell mewhich will shock me.... Now, we know you'renot a killer. You aren't that kind of a kid. Weknow you didn't deliberately kill this woman ....Help yourself for a change. Let us help you ....All we're interested in is the truth....The Minnesota Supreme Court reversed Biron's

conviction on the ground that false legal advicevitiated the confession. The court never suggestedthat the gnawing police questioning might be inher-ently coercive or inherently violative of Biron's rightto counsel or the privilege against self-incrimination;indeed it repeatedly referred to the interrogationsessions as "interviews." On this latter point, see note24 infra.

tors questioned him "in relays"; that "they be-came so tired they were compelled to rest. 2 1 I

venture to say that if there had been a taperecording of the Ashcraft interrogation andthe Justices had listened to it in a "hearingroom" set up for that purpose, long before thetape had ended they would have rushed outthe door aghast-or staggered out, in a near-catatonic state.

Maybe not. Maybe Justice Jackson, for one,would have stayed there, to the bitter end,pondering: "Did Ashcraft do it? Did he kill hiswife?"

There is reason to think Ashcraft did. Theman he named as his wife's killer remindedhim that he did not intend to take the entireblame, promptly admitted the killing and ac-cused Ashcraft of hiring him to do the job.After the interrogation, when examined by hisfamily physician, Ashcraft neither complainedof his treatment nor avowed his innocence.Instead he made what this friendly doctordescribed as an "entirely voluntary" statementexplaining why he had killed his wife . 22

Ashcraft is a great case only because Jackson'sdissent made it so. The dissent is worth quotingat length. No piece of writing by Jackson betterillustrates this self-described "country lawyer's"famed powers of advocacy and his "extraordi-nary quality of freshness and directness ofapproach."' ' And no opinion by any judge, Ithink, better captures both the style and sub-stance of Inbau's views on police interrogationand confessions:

Interrogation per se is not, while violence perse is, an outlaw. Questioning is an indispensableinstrumentality of justice. It may be abused, ofcourse, as cross-examination in court may beabused, but the principles by which we mayadjudge when it passes constitutional limits arequite different from those that condemn policebrutality, and are far more difficult to apply.And they call for a more responsible and cau-tious exercise of our office. For ... we cannotread an undiscriminating hostility to mere inter-rogation into the Constitution without undulyfettering the States in protecting society fromthe criminal.

21 322 U.S. at 149 (emphasis added).See id. at 165-67 (Jackson, J., dissenting).

'John Lord O'Brian, in MR. JUSTICE JACKSON 9(Legal Studies of the William Nelson Cromwell Foun-dation, 1969) (introduction to speech by Hon. CharlesS. Desmond in honor of Justice Jackson).

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It probably is the normal instinct to deny andconceal any shameful or guilty act. Even a "vol-untary confession" is not likely to be the productof the same motives with which one may volun-teer information that does not incriminate orconcern him. The term "voluntary" confessiondoes not mean voluntary in the sense of aconfession to a priest merely to rid one's soul ofa sense of guilt. "Voluntary confessions" in crim-inal law are the product of calculations of adifferent order, and usually proceed from abelief that further denial is useless and perhapsprejudicial. To speak of any confessions ofcrime made after arrest as being "voluntary" or"uncoerced" is somewhat inaccurate, althoughtraditional.

A confession is wholly and uncontestably vol-untary only if a guilty person gives himself upto the law and becomes his own accuser. TheCourt bases its decision on the premise thatcustody and examination of a prisoner forthirty-six hours is "inherently coercive." Ofcourse it is. And so is custody and examinationfor one hour. Arrest itself is inherently coercive,and so is detention ....

But does the Constitution prohibit use of allconfessions made after arrest because question-ing, while one is deprived of freedom, is "inher-ently coercive"?...

That the inquiry was prolonged and persist-ent is a factor that in any calculation of its effecton Ashcraft would count heavily against theconfession. But some men would withstand fordays pressures that would destroy the will ofothers in hours. Always heretofore the ultimatequestion has been whether the confessor was inpossession of his own will and self-control at thetime of confession ....

This evidence shows that despite the "inher-ent coerciveness" of the circumstances of hisexamination, the confession when made wasdeliberate, free, and voluntary in the sense inwhich that term is used in criminal law. ThisCourt could not, in our opinion, hold thisconfession an involuntary one except by substi-tuting its presumption in place of analysis ofthe evidence and refusing to weigh the evidenceeven in rebuttal of its presumption.

I am not sure whether the Court denies theState all right to arrest and question the husbandof the slain woman. No investigation worthy ofthe name could fail to examine him. Of allpersons, he was most likely to know whethershe had enemies or rivals ....

Could the State not confront Ashcraft withhis false statements and ask his explanation? Hedid not throw himself at any time on his rights,refuse to answer, and demand counsel, even

according to his own testimony. The strategy ofthe officers evidently was to keep him talking,to give him plenty of rope and see if he wouldnot hang himself. He does not claim to havemade objection to this. Instead he relied on hiswits. The time came when it dawned on himthat his own story brought him under suspicion,and that he could not meet it. Must the officersstop at this point because he was coming toappreciate the uselessness of deception?

Then he became desperate and accused[Ware]. Certainly from this point the State wasjustified in holding and questioning him as awitness, for he claimed to know the killer. Thataccusation backfired and only turned up a wit-ness against him. He had run out of expedientsand invention; he knew he had lost the battle ofwits. After all, honesty seemed to be the best,even if the last, policy. He confessed in detail.

At what point in all this investigation doesthe Court hold that the Constitution commandsthese officers to send Ashcraft on his way andgive up the murder as insoluble? If the State isdenied the right to apply any pressure to himwhich is 'inherently coercive' it could hardlydeprive him of his freedom at all.24

24 322 U.S. at 160-69. See also Watts v. Indiana 338

U.S. 49, 57, 60-62 (1949) (Jackson, J., concurring).See generally, Inbau, Restrictions in the Law of Interro-gation and Confessions, 52 Nw. U. L. REV. 77 (1957);Inbau, Police Interrogation-A Practical Necessity, 52 J.CRIM. L.C. & P.S. 16 (1961), reprinted in POLICEPOWER AND INDIVIDUAL FREEDOM 147 (C. Sowle ed.1962). Inbau, Law Enforcement, the Courts and CivilLiberties, in CRIMINAL JUSTICE IN OUR TIME 97 (A.Howard ed. 1965).

Inbau, I am certain, also applauded Justice Jack-son's criticism of the Ashcraft Court's use of emotivewords: "This questioning is characterized as a 'secretinquisition,' involving all of the horrendous historicalassociations of those words .... [A]ny questioningmay be characterized as an 'inquisition,' but the useof such characterizations is no substitute for ...detached and judicial consideration .... 322 U.S.at 168. Cf. Hearings on H.R. 7525 and S. 486 Before theSenate Comm. on the District of Columbia, 88th Cong.,1st Sess. 323, 329-30 (1963) (statement of Fred E.Inbau distinguishing between "persuad[ing]" a per-son to confess or "play[ing] upon his sympathies toget him to tell you the truth" and "extracting" aconfession or "put[ting] [someone] through the wrin-ger to get it"). [hereinafter cited as 1963 SenateHearings].

Of course, few advocates of any position are ableto eschew emotive language. See, e.g., THE MEDIAAND THE LAW 2-3 (H. Simmons & J. Califano ed.1976) ("gag" orders vs. "protective" orders; "nationalsecurity" vs. "the right of the public to know"). Criticsof police interrogation do use threatening and per-jorative terms, but defenders of the system are noslouches themselves in the art of wordsmanship. The

[Vol. 68



Justice Black, who wrote the opinion for theCourt in Ashcraft, no less than Justice Jackson,who authored the ringing dissent, knew fullwell that in 1944 neither the Court nor "thecountry" was "ready" for an affirmative an-swer to the question, "[D]oes the Constitutionprohibit use of all confessions made after arrestbecause questioning, while one is deprived offreedom, is 'inherently coercive'?" As we nowknow, it was not until 1966 that the Court, ifnot "the country," grew "ready."' 6 There iscause to wonder whether "the country" willever grow "ready." And there is reason to thinkthat the present Court is growing weary.27

veteran special agent of the Kansas Bureau of Inves-tigation, Alvin A. Dewey of In Cold Blood fame,likened a police interrogator to a "good salesman... selling insurance or a car [who] cannot do hisjob if a competitor is standing by, and that is thesituation for the [interrogator] with the presence ofan attorney." Statement before the Subcommittee onConstitutional Amendments of the Senate Committeeon the Judiciary, July 21, 1966, at 2 (mimeo) (on filein the University of Michigan Law Library). He alsodefined the "interrogation room" as a place "wherepeople can talk in privacy which is nothing morethan an attorney desires in talking to his client or adoctor in talking to his patient." Id. Similarly, ChiefStanley Schrotel of the Cincinnati Police Department,then the immediate past president of the Interna-tional Association of Chiefs of Police, told a SenateCommittee that "in the interrogation room ... youhave something akin to a lawyer-client relationship,a doctor-patient relationship." 1963 Senate Hearings,supra at 286, 294. He also pointed out that "it takes avery skillful kind of interview, a proper kind ofenvironment, in order to establish the rapport" nec-essary to get a heinous offender to confess. Id. at293. Inbau himself has likened effective police inter-rogation to an "unhurried interview" and soughtlegislative authority "for a reasonable period of policedetention" for the interrogation of suspects "notunwilling to be interviewed." Inbau, Police Interroga-tion-A Practical Necessity, 52 J. CRIM. L.C. & P.S. 16,18-21 (1961), reprinted in POLICE POWER AND INDIVID-UAL FREEDOM 147, 149-52 (C. Sowle ed. 1962).

Do not those who use such clean, soft words todescribe whai typically must be a grim, unpleasant(frightening? cruel?) experience contribute to "lin-guistic pollution, upsetting the ecological balancebetween words and their environment"? See Schles-inger, Politics and the American Language, 43 AMERI-CAN SCHOLAR 553, 556 (1974).

25 Cf. A. LEWIS, GIDEON'S TRUMPET 221-22 (1964).2 Miranda v. Arizona, 384 U.S. 436 (1966).2 It is probably true that today "nobody, 'liberal'

or 'conservative,' is happy with Miranda," Frankel,From Private Fights Toward Public Justice, 51 N.Y.U.L.Rev. 516, 526 (1976), and there is substantial causefor viewing it as "at best a tense, temporary, ragged

II

It is well known, and it is quite understanda-ble, that the forthright and occasionally irrev-erent Inbau is greatly admired-adored maynot be too strong a word-by the thousands oflaw enforcement officials who flock to his"short courses" or applaud his hard-hittingspeeches at their conferences and conventions.And it is also no secret, and again not surpris-ing, that many of his fellow law professors donot hold him in the same regard.

Inbau is an expert, make no mistake aboutthat, but he is an expert with a maverick strain.He was, and always will be, the spokesman forthe plain man, no less than for the policeofficer and the prosecutor. But the typicalexpert does not understand the plain man."What he knows, he knows so thoroughly thathe is impatient with men to whom it has to beexplained."' The typical expert "lacks contactwith the plain man. He not only does not knowwhat the plain man is thinking; he rarely knowshow to discover his thoughts. He has dwelt soausterely in his laboratory or his study that thecontent of the average mind is a closed book tohim." 29

Inbau can, and does, stir the multitudes. Hiswriting and speaking is "blood-warm"; 0 hiswords are "loaded with life." 31 One of hisweapons is "the homely illustration whichmakes its way and sinks deep by its appeal toeveryday experience." 32 This, written on theeve of the "stop and frisk" cases, 3 is typicalInbau:

truce between combatants," Id. Nevertheless, I doubtthat Miranda will be formally overruled. But see F.INBAU, J. THOMPSON, J. HADDAD, J. ZAGEL & G.STARKMAN, CASES AND COMMENTS ON CRIMINALPROCEDURE 355 (1974). If Miranda, or some form ofit, does survive, however, it will probably be onlybecause niggardly interpretations of it, e.g., Harrisv. New York, 401 U.S. 222 (1971); Michigan v. Mos-ley, 423 U.S. 96 (1975); Oregon v. Mathiason, 97S. Ct. 711 (1977), have sufficiently soothed its criticson the Court.

28 Laski, The Limitations of the Expert, 162 HARPER'SMONTHLY 101, 104 (1930).

29 Id. at 106.30 Emerson, The American Scholar, in THE PORTA-

BLE EMERSON 44 (M. Van Doren ed. 1946).31 Id. at 32.32 Cardozo, Law and Literature, in LAW AND LITER-

ATURE AND OTHER ESSAYS AND ADDRESSES 18 (1931).1 Terry v. Ohio, 392 U.S. 1 (1968); Sibron v. New

York, 392 U.S. 40 (1968); Peters v. New York, 392U.S. 40 (1968).

1977]


YALE KAMISAR

Several months ago I received a notice fromthe Internal Revenue Service to come to itsChicago office to explain a couple of businessexpense deductions. One related to a deductionfor "an office in home." That referred to adeduction I listed for 1/6 of my apartment rent- for a sizeable den used exclusively for mybook writings and various other writings, which,incidentally, account for a third of my totalincome.

It seemed odd that there should be any ques-tion about this. It also seemed odd that anyquestion would be raised as to the other modestitems of expense charged against these extra-curricular income producing activities.

Anyway, I spent several hours locating checksand records to substantiate these deductions -time I would have preferred to use in writingnew books or articles. I also appeared in theIRS office at the designated time of 9:30 A.M. Isat in a waiting room for my name to be called- all the while feeling like a charity patient in ahealth clinic. At 10:05 my name was called, andas I walked by, some of the other assembledsuspects, one of them - whom I did not knowbut who obviously knew me - exclaimed: "In-bau; you too!"

This was not an exhilarating experience, Iassure you. Nor did I enjoy baring my financialsoul to the young lady who grilled me for abouttwenty minutes.

I hasten to relieve you of any concern overmy future; I was "exonerated"; my return wasapproved.

The various tax reports and various otherkinds of reports which a business man has tomake to the Federal and State Governmentsrequire many disclosures of a private natureand a failure to disclose may incur severe penal-ties or even a discontinuance of the businessitself. Safety and health inspectors of businessescall for privacy intrusions. In the labor relationsarea, a company has to subject itself to a lot ofdisclosures, and to the demands of labor unions- privacy invasions, they may be fairly called.

Those of you who have travelled abroad andhave had to submit to a customs inspection ofyopr luggage know what it is to have yourprivacy invaded.

Now don't misunderstand me. I am not say-ing, or even intimating, that it is wrong for theInternal Revenue Service to ask me to explainmy return. Spot checks, or checks based uponsuspicion of a false return, are necessary and inthe public interest. The same holds true for thedisclosures and inspections required of busi-nesses and travellers. The point I want to make,however, is that if we so-called law abiding citizenshave to submit to these indignities and invasions of

our privacy - all in the interest and welfare of thepublic at large - I find it hard to understand whyanyone, or any group, should complain so vociferouslywhen a police officer, acting upon reasonable suspi-don and in a reasonable manner, requests the identityof, or an explanation from, a person on a dark streetat 3 A.M. in a neighbohood which has been experi-encing a high incidence of serious crimes. And why,once the officer does this, should he not bepermitted, for his own protection, to frisk thedetained person in order to be sure he is notarmed with a dangerous weapon? 4

Yes, Inbau could stir the multitudes. Hewrote (horrors) for the Reader's Digest- as wellas the Police Digest,36 the Police Journa17 andthe Police-Law Review .8 He addressed not onlythe Conference of Chief Justices s9 and variousannual conventions of the National DistrictAttorneys Association,4 but the National Asso-ciation of Independent Insurers, 4 1 the ChicagoAssociation of Commerce and Industry42 and agathering of college alumni at "homecoming.

43

" Unpublished address by Fred E. Inbau, "Mis-conceptions Regarding Lawlessness and Law En-forcement," Northwestern Law Alumni AnnualLuncheon, Chicago, Ill. (Sept. 26, 1967) at 4-6 (onfile in the Northwestern and Michigan law libraries).

35 Inbau, Behind Those "Police Brutality" Charges, 89READER'S DIGEST 1 (July 1966).

36 See note 4 supra.3 Inbau, Misconceptions Regarding Lawlessness and

Law Enforcement, THE POLICE JOURNAL, Oct. 1969, at458.

- Inbau, Lawlessness Galore, POLICE-LAw REVIEW,

Aug.-Sept. 1965, at 3.39 Address by Fred. E. Inbau, "The Arrestee and

Legal Counsel," Annual Conference of Chief Jus-tices, Washington, D.C., (Aug. 9, 1963) (on file inthe law libraries of Northwestern University and theUniversity of Michigan).

4 See, e.g., Inbau, Public Safety v. Individual CivilLiberties: The Prosecutor's Stand, 53 J. CRIa. L.C. &P.S. 85 (1962). This paper, also discussed at 192 infra,had been the keynote address at the 1961 AnnualConference of the National District Attorneys' Asso-ciation in Portland, Oregon.

41 Address by Fred E. Inbau, "Misconceptions Re-garding Lawlessness and Law Enforcement," 23rdannual meeting of National Association of Independ-ent Insurers, New York, N.Y. (Oct. 29, 1968) (on filein the law libraries of Northwestern University andthe University of Michigan).

42 Address by Fred E. Inbau, "Crime in OurStreets-and What Can Be Done About It?", Govern-mental Affairs Council, Chicago Association of Com-merce and Industry, Chicago, Ill. (Jan. 25, 1968) (onfile in the law libraries of Northwestern Universityand the University of Michigan).

43 See Lawlessness Galore, THE TULANIAN, Dec.1966. at 15.

[Vol. 68



(How many law professors could hold thataudience?) But the typical expert "mistrusts hisfellow-specialist when the latter can reach [the]multitude. For [the typical expert] the gift ofpopular explanation is a proof of failure in thegrasp of the discipline. His intensity of gazemakes him suspect the man who can state theelements of his mystery in general terms."44

Inbau takes strong positions and is given tostrong words. On occasion, he is even knownto have voiced rage and indignation. Thesequalities are not calculated to enhance his statusin the law teaching ranks. Professors, it seems,are supposed to tiptoe, not crash. They aresupposed to be troubled and tentative, not takevery strong and very clear positions on any-thing (except, perhaps, right down the middle).Their stock in trade is not supplying answersbut asking questions (and criticizing others whohave the audacity to propose solutions). Theyearn points, it seems, by showing how agoniz-ingly subtle and complex an issue or a problemactually is, not by suggesting how simple it mightreally be. 45

The safe course for a law professor, it seems,is to set forth all imaginable arguments (or,better yet, some unimaginable ones, too) onboth sides (or better yet, on four or five sides),lament the lack of sufficient data, deplore the"single-minded thinking" which has character-ized the field (and probably add that it hasgenerated "much heat but little light"), recog-nize that valid principles are "in collision,"stress that there are no "absolutes," and windup troubled (or, better yet, tortured and para-lyzed) by doubts and uncertainties. The pre-ferred model, in short, is Tevye the dairyman:

... On the other hand, what kind of matchwould that be, with a poor tailor? On the otherhand, he's an honest, hard worker. On theother hand, he has absolutely nothing. On theother hand, things could never get worse forhim, they could only get better.4

44 Laski,supra note 28, at 108.4 One notable exception is C. Black, The Lawful-

ness of the Segregation Decisions, 69 YALE L.J. 421(1960). But see C. Black, Civil Rights in Times ofEconomic Stress-Jurisprudential and Philosophic Aspects,1976 U. ILL. L.F. 559.

4 Fiddler on the Roof, Act I, Scene VI, in BESTPLAYS OF THE SIXTIES 283 (S. Richards ed. 1970).

Hopefully, those who arrive at strong conclusionsengage in "on the one hand-on the other hand-but on the other hand" thinking somewhere along the

Although Inbau is well aware that his views,and his colorful manner of expressing them,might irritate, even infuriate, his fellow lawprofessors, this has not swayed him from hiscourse.47 Indeed, one of his missions, as hesees it, is to straighten out "the mess" the lawprofessors, ex-law professors on the bench,and other "sensitive souls" have gotten usinto.

48

way. It seems, however, that the preferred style isnot to do so before the speech is delivered or thearticle is published, but "out loud" in one's speech orarticle-better yet, perhaps, in one's conclusions.

47 In an "editorial," "Playing God": 5 to 4, 57 J.CRIM. L.C. & P.S. 377-78 (1966), Inbau, then Editor-in-Chief of the Journal, ripped into "the Court's oneman majority" for continuing to "play God" whenthe ALI, ABA, various governmental commissionsand other groups were:

seeking to find a proximate solution to somevery difficult problems .... But a one-man ma-jority of the Court in Miranda "pulled the rug"from underneath all of these studies and re-search groups, and effectively foreclosed a finalevaluation of their ultimate findings and rec-ommendations .... Considering the complexityof the interrogation-confession problem, a sum-mary 5 to 4 nullification of much of the afore-mentioned group efforts . . . is awesomely in-consistent with fundamental democratic con-cepts. It's more like "Playing God: 5 to 4."A year and a half later, Inbau took cognizance of

the fact that his "Playing God" editorial had "infuri-ated many of my colleagues in the law school world,"but "[w]hat I said then may be appropriately repeatednow, although I regret whatever infuriation it mayagain arouse among my law professor colleagueswho may be in the audience tonight." Unpublishedaddress by Fred E. Inbau, "Crime and the SupremeCourt," Symposium by the Council of Graduate Stu-dents, Ohio State University, Columbus, Ohio, (April24, 1968) (on file in the law libraries of NorthwesternUniversity and the University of Michigan).

48 In Hearings Before a Subcomm. of the Senate Com-mittee on the Judiciary, 85th Cong., 2d Sess., on H.R. 11477, S. 2970, S. 3325 and S. 3355, at 58, 65(1968) [hereinafter cited as 1958 Senate Hearings],Inbau (who stressed at the outset that he did notappear 'just" in "his capacity" as a law professor, butas one with much "practical experience") "explained"how the McNabb innovation came about:

Unfortunately the United States SupremeCourt, and it was made up at that time of someeven more sensitive souls than we see, perhapsat the present time-there were some law pro-fessors on it, ex-law professors-and they as-sumed that these practices which were revealedin these [coerced confession) decisions werecommonplace, they were universal, and theCourt, acting in that feeling of resentment, laiddown in the McNabb case its so-called civilizedstandards rule.

1977]


YALE KAMISAR

Inbau came to the podium from the crimelab, the interrogation room and the trialcourts, 49 not the library. Not only was he apioneer in the development of the polygraphand in the "psychology" of obtaining confes-sions, but in his younger days he had been thepremier lie-detector examiner and just aboutthe craftiest interrogator around. In the courseof obtaining hiundreds of confessions, he hadbeen known to spill over with such "sympathy"for a murder suspect that he had had to "pauseto wipe away a tear."5' He prefers to representhimself (and perhaps think of himself) as a"practical man" rather than a "law professor."51

Most professors (and too many judges), I thinkhe would say, are "too naive and otherworldlyto intervene in a brass-knuckle world. '52

If Inbau much cared about how his brethrenin the law teaching ranks regard him, however,I think he would be puzzled by the "chilling"effect of his strong positions and strong words.After all, John Henry Wigmore, his idol, men-tor, friend, associate and ideological ally,53 was

41 Immediately after earning a master's in law atNorthwestern University in 1933, Inbau became amember of the Scientific Crime Detection Laboratoryat the Northwestern University School of Law, thefirst such laboratory in the country. When the Chi-cago Police Department took over the laboratory in1938, he became its first director and served in thiscapacity until 1941. For the eight years he was associ-ated with the crime detection laboratory, "criminalinterrogation" was his "special interest." See 1958Senate Hearings, supra note 48, at 58. From 1941 until1945, when he returned to Northwestern as a profes-sor of law, Inbau was a trial attorney. At one time oranother he was president of the Illinois Academy ofCriminology, the American Academy of ForensicSciences and the American Academy of PolygraphExaminers.

S0 See Lewellen, How to Make a Killer Confess, SAT.EvE. POST, Mar. 31, 1956, at 33.

5111 do not come here to visit with you in mycapacity as a criminal-law professor. I know frommy own practical experience, both as a triallawyer and by reason of my work in the policefield, that there is an allergy toward professorson the part of people who are out on the firingline. I prefer to represent myself to you as onewho has had experience in this area of interroga-tion.

Inbau, in A Forum on the Interrogation of the Accused, 49CORNELL L. Q. 382, 387 (1964) (panel discussion spon-sored by the District Attorney's Association of theState of New York). See also 1958 Senate Hearings,supra note 48, at 58.

52 See S. KRISLOV, THE SUPREME COURT AND POL-ITICAL FREEDOM 2 (1968).

-1 Inbau, I am sure, regarded his being namedthe first John Henry Wigmore Professor at the

known for his "sharp and uncompromising"criticisms.5 4 Although a person of elegant man-

Northwestern University School of Law as beinggiven the highest honor that could be bestowed onany student of criminal law and evidence. Wigmorewas the organizer and founder of the Scientific CrimeDetection Laboratory, to which Inbau devoted thefirst decade of his professional life. Wigmore alsolaunched The Journal of Criminal Law and Criminologyin 1910 and contributed "a forthright comment ...upon a recent criminal case" to its first issue. Inbau,The Innovator (Editorial), 32 J. CRIM. L.C. & P.S. 263,264 (1941) (editorial). Inbau, of course, was deeplydevoted, and a frequent contributor, to the Journalall of his professional life. He served as its ManagingDirector from 1945-65, and then its Editor-in-Chiefuntil 1971, when student editors took completecharge of the publication.

The last activity in Wigmore's extraordinary careerwas participation, along with Inbau, in a regularmeeting of the Board of Editors of the Journal (April20, 1943). He died a few hours later. Inbau was thelast person to talk to Wigmore. He hailed the cab inwhich Wigmore met his death.

Wigmore's "last words" on the U.S. SupremeCourt were words of reproachment for its recentdecision in the McNabb case: "He shook his headslowly as he said prophetically that he could seeneither sense nor reason in it; that it is bound tocause trouble for it makes it almost impossible foreither the police or the prosecutor to get anywherewith their cases; and that he did not know what theSupreme Court could have been thinking about whenit wrote that opinion." Curran, Dean Wigmore at HisLast Meeting of the Editorial Board, 34J. CRIN. L.C. &P.S. 93, 94 (1943).

The decision in Escobedo v. Illinois, 378 U.S. 478(1964), was hard enough for Inbau to take, but forJustice Goldberg, author of the opinion of the Court,to find support for his viewpoint in the writings ofWigmore was almost more than Inbau could bear.See his remarks in The Supreme Court's Decisions onDefendants' Rights and Criminal Procedures, 39 F.R.D.423, 441 (1966) (panel discussion):

I think it is a serious mistake to say that whenwe ask for an interrogation opportunity on thepart of the police we are asking for the abolitionof the privilege against self-incrimination. Un-fortunately, Justice Goldberg made the sameerror in his opinion in the Escobedo case. If yourecall, ... he quotes Dean Wigmore's reasonsin support of the privilege [378 U.S. at 489,quoting from 8 J. WIGMORE, EVIDENCE § 2251,at 309 (3d ed. 1940)] and then equates that withhis approval of the exclusionary rule and thepresent rules with respect to confession admissi-bility. Justice Goldberg, I think, should haveknown better. He was a student of Wigmore's.And Wigmore's treatise very clearly indicateshis violent opposition to the exclusionary ruleand to any rule of confession admissibility otherthan one based upon the trustworthiness factor.

I not only know that from Wigmore's writ-ings, but I knew the gentleman very well.... Iam quite sure he would be greatly disturbed to

[Vol. 68



ners, when he thought the occasion demandedit, "the Colonel" could strike with the force ofan army mule (or the "bite" of a firstsergeant),u yet this did not prevent him frombeing acclaimed as "our first legal scholar."56

Indeed, Wigmore's Treatise on Evidence, "unri-valed as the greatest treatise on any singlesubject of the law,' 5 7 contains a generousamount of scathing, colorful criticism of thecourts - oftenfor the very reasons that Inbau hasnever stopped reproaching them:

Does the illegal source of a piece of evidencetaint it so as to exclude it, when offered by theparty who has shared in the illegality?

... An employer may perhaps suitably inter-rupt the course of his business to deliver ahomily to his office-boy on the evils of gamblingor the rewards of industry. But a judge doesnot hold court in a streetcar to do summaryjustice upon a fellow-passenger who fraudu-lently evades payment of his fare; and, uponthe same principle, he does not attempt, in thecourse of a specific litigation, to investigate andpunish all offences which incidentally cross thepath of that litigation. Such a practice might beconsistent with the primitive system of justiceunder an Arabian sheikh; but it does not com-port with our own system of law. 58

see himself quoted in the Escobedo case as thoughhe were supporting that viewpoint.As I read the 130-page discussion of confessions in

volume 3 of the Treatise on Evidence, a volume towhich the Escobedo opinion never refers, Inbau isplainly right about Wigmore. See 3 J. WIGMORE§§ 22-24, 826, 841-43, 856-59, 865, 867 (3d. ed. 1940).

54 Roalfe, John Henry Wigmore-Scholar and Re-former, 53J. CRIM. L.C. & P.S. 277, 280 (1962).

55 In addition to the examples furnished by Roalfe,supra note 54, see especially Wigmore, Abrams v.U.S.: Freedom of Speech and Freedom of Thuggery inWar-Time and Peace-Time, 14 ILL. L. REV. 539 (1920)(blistering attack on Holmes-Brandeis position). Seealso note 57 infra and text accompanying notes 58-61infra.

58 Kocourek, John Henry Wigmore, 27 AM. JUD.

Soc'y 122, 124 (1943).57 Frankfurter, John Henry Wigmore: A Centennial

Tribute 58 Nw. U.L. REv. 443 (1963), reprinted in F.FRANKFURTER, OF LAW AND LIFE & OTHER THINGSTHAT MATTER 256 (P. Kurland ed. 1965). In thecontroversy growing out of the Sacco-Vanzetti case,Professor Frankfurter had been a target ofWigmore's biting tongue. "He never referred toFrankfurter by name but called him the 'plausiblePundit' or 'contra-canonical critic' because of hisalleged violation of the [canons of ethics]." Roalfe,supra note 54, at 280.

58 8 J. WIGMORE, EVIDENCE § 2183, at 4-5 (3d ed.1940).

[T]he heretical influence of Weeks v. UnitedStates, 232 U.S. 383 (1914), establishing the ex-clusionary rule in federal search and seizurecases] spread, and evoked a contagion of senti-mentality in some of the State Courts, inducingthem to break loose from long-settled funda-mentals.

... After the enactment of the EighteenthAmendment and its auxiliary legislation, pro-hibiting the sale of intoxicating liquors, a newand popular occasion was afforded for the mis-placed invocation of this principle; and the ju-dicial excesses of many Courts in sanctioning itsuse give an impression of easy complaisancewhich would be ludicrous if it were not sodangerous to the general respect for law andorder in the community. 59

... If the officials, illegally searching, cameacross an infernal machine, planned for the city'sdestruction, and impounded it, shall we say thatthe diabolical owner of it may appear in court,brazenly demand process for its return, and besupinely accorded by the Court a writ of restitu-tion, with perhaps on apology for the "outrage"?Such is the logical consequence of the doctrineof Weeks v. U.S....

[T]he essential fallacy of [Weeks] and its suc-cessors is that it virtually creates a novel excep-tion, where the Fourth Amendment is involved,to the fundamental principle ... that an illegal-ity in the mode of procuring evidence is no ground forexcluding it. The doctrine of such an exceptionrests on a reverence for the Fourth Amendmentso deep and cogent that its violation will betaken notice of, at any cost of other justice, andeven in the most indirect way....

[This view] puts Supreme Courts in the posi-tion of assisting to undermine the foundationsof the very institutions they are set there toprotect. It regards the over-zealous officer ofthe law as a greater danger to the communitythan the unpunished murderer or embezzler orpanderer.60

... Holmes, J., in his dissent [in Olmstead v.United States, 277 U.S. 438 (1928)] refers to this actof wiretapping as "dirty business." But so is likelyto be all apprehension of malefactors. Kicking aman in the stomach is "dirty business," normallyviewed. But if a gunman assails you, and youknow enough of the French art of "savatage" tokick him in the stomach and thus save your life,is that "dirty business" for you? ...6

59 Id. 6 2184, at 32-34.60 Id. at 35-37.61 Id. § 2184b, at 50 Cf. Inbau, Police Interrogation-

A Practical Necessity, 52 J. CRIM. L.C. & P.S. 16, 19(1961), reprinted in POLICE POWER AND INDIVIDUAL

1977]


III

In the March, 1962, issue of this Journal,Fred Inbau published one of his many "prose-cutors' convention" speeches, Public Safety v.Individual Civil Liberties: The Prosecutor's Stand,6 2

but one whose criticism of the Warren Courtstruck me as especially bitter and scathing-even for Inbau. I regarded it, and I think itmay be fairly termed, an "intemperate" piece.I expressed my sense of outrage to ClaudeSowle, then Editor-in-Chief of theJournal, whoencouraged me to respond. I then dashed offwhat may fairly be called an "intemperate"reply.63 I was furious. Inbau had ripped intothe Court I loved and my thinking then wasthat "[t]o war against the Court was to waragainst the Constitution itself."64 Up to thattime, I had never met Inbau and it wouldhardly have surprised me if, after reading mybiting reply, Inbau had vowed to keep it thatway. Instead, he invited me to attend the nextNorthwestern University School of Law Con-ference on Criminal Justice.

The Conference (held in November of '62)turned out to be a memorable occasion. It wasthere that I first made contact with many lawenforcement officers. It was there, too, that Ifirst met James R. Thompson, Claude R.Sowle, and Bernard Weisberg, as well as Inbau.

I expected Thompson, then a very recentgraduate of Northwestern and a lecturer inInbau's Short Course for Prosecutors, to bevery much under the influence of his mentor,

FREEDOM 147, 151 (C. Sowle ed. 1962):[T]he interrogation [of the murder suspect inan actual case within Inbau's "own professionalexperience"] was "unethical" according to thestandards usually set for professional, businessand social conduct .... But, under the circum-stances involved in this case, how else would themurderer's guilt have been established? More-over, . . . [firom the criminal's point of view,any interrogation of him is objectionable. Tohim it may be a "dirty trick" to be talked into aconfession, for surely it was not done for hisbenefit.62 See note 40 supra.63 Kamisar, Public Safety v. Individual Liberties: Some

"Facts" and "Theories," 53 J. CRIM. L.C. & P.S. 171(1962). We then went another round: Inbau, MoreAbout Public Safety v. Individual Civil Liberties, 53 J.CRIM. L.C. & P.S. 329 (1962); Kamisar, Some Reflet-tions on Criticizing the Courts and 'Policing the Police,"53J. CRIM. L.C. & P.S. 453 (1962).

64 Cf. A. BICKEL, THE LEAST DANGEROUS BRANCH265 (1962).

but that was not at all the case. Thompsoneven had some nice things to say about theMcNabb-Mallory rule and thought there wasmuch to be said for the Supreme Court ofIllinois adopting such a rule.65 Inbau didn'tseem to mind at all.'If anything, he seemed tobe proud of the fact that Thompson was his''own man."

Claude Sowle, another former Inbau studentand then Inbau's junior colleague on theNorthwestern Law Faculty, gave a stirring talk,striking at the heart of Inbau's position onpolice interrogation and confessions. He at-tacked the hypocrisy pervading the criminaljustice system; measured the proceedings inthe "interrogation" room against the standardof a public trial and found the former sorelywanting-indeed, based upon nullification ofthe privilege against self-incrimination and theright to the assistance of counsel-and spelledout how all too often the "legal courts" arereduced to the position of merely ratifying theverdict obtained by the police-conducted "out-law tribunals." Sowle's remarks had a stunningimpact on the audience and inspired me, someyears later, to write my "Gatehouses and Man-sions" paper.

66

While Sowle was speaking, I studied Inbauclosely. I half expected him to shout, "That'senough, Claude!" Instead, Inbau seemed tobe basking in the brilliance and independenceof his junior colleague. He seemed pleasedthat Sowle had the rapt attention of the audi-ence, especially the many police officers inattendance.

Another speaker, Bernard Weisberg, alsoattacked the Inbau position. The contentionthat all statements made after a suspect's re-quest to contact counsel has been denied shouldbe barred on that ground alone had beenrejected in Crooker, the Court maintaining thatsuch a rule "would effectively preclude police

65 Some years later, then Assistant ProfessorThompson spelled out his views on the subject inDetention After Arrest and In-Custody Investigation: SomeExclusionary Principles, 1966 U. ILL. L.F. 390, 402-14.

1 Kamisar, Equal Justice in the Gatehouses and Man-sions of American Criminal Procedure, in Y. KAMISAR,F. INBAU & T. ARNOLD, CRIMINAL JUSTICE IN OURTIME. (Howard ed. 1965). Unfortunately, on theerroneous assumption that Professor Sowle's remarkswould later be published, I took no notes at thetime, only to discover later that the speaker haddestroyed his. I again acknowledge my large debt toSowle. See also, id. at 20 n.53.

YALE KAMISAR [Vol. 68



questioning- fair as well as unfair-until theaccused was afforded opportunity to call hisattorney. 67 Inbau, of course, applauded thisstand. But Weisberg argued most persuasivelythat in the real world "fair" or "proper" or"reasonable" police questioning was virtuallynon-existent-and he quoted extensively fromInbau's interrogation manual to make hispoint. Moreover, pointed out Weisberg, evenif the courts could decide when "reasonable"interrogation had come to an end (which hedoubted), they could not hope to do so unlessfull records of these essentially unsupervisedproceedings were available for review-andthey almost never were.

Weisberg's remarks infuriated many of thepolice in attendance. One captain leaped to hisfeet and growled at Weisberg that someonewho had never conducted an interrogationhimself had no business talking about the sub-ject-and couldn't have anything worthwhileto say. Inbau rushed to the microphone. Agood argument could be made, he smiled, thatonly someone who had been on the receivingend of a police interrogation was qualified totalk about the subject. He had neglected toinvite such a person, but Weisberg, he sug-gested, was the next best thing. Weisberg was athoughtful, articulate spokesman for the ac-cused. True, evidently Weisberg believed thatthe established practice of police questioningwas fundamentally and hopelessly irreconcila-ble with the adversary system of justice and theConstitution, but so did some members of theSupreme Court. Some day-and not in the toodistant future- Weisberg's views might com-mand a majority of the Court. A major purposeof the conference, Inbau reminded the manypolice officers in the audience, was not just toentertain them with speakers they liked to hear,but to present speakers who would tell themwhat they ought to know and had to thinkabout. (This, I asked myself, was the zealous,pugilistic Fred Inbau? This was the fabled"Freddy the Cop"?)6

67 Crooker v. California, 357 U.S. 433, 441 (1958)(emphasis in original).

68 A few months earlier, although I did not dis-cover this until many years later, Inbau had donemore than simply defend the civil libertarian's rightto have his say before a police audience. See unpub-lished and untitled address of May 28, 1962 (emphasisadded), at Willamette College of Law, Salem, Ore.(on file in the law libraries of Northwestern Univer-

Weisberg was indeed a thoughtful, articulatespokesman. Two years earlier, again in thesetting of a conference conceived and plannedby Inbau, he had delivered what I consider themost probing and most useful paper ever writ-ten on the subject, Police Interrogation of ArrestedPersons: A Skeptical View. 69 Of all the contribu-tors to this "International Conference on Crim-inal Law," Weisberg's criminal justice creden-tials were the least impressive. He had no lawenforcement background. He was a generalpractitioner, engaged mostly in corporate andbusiness law. But Inbau had "discovered" Weis-berg when the latter had co-authored a 1959report by the Illinois Division of the ACLU,

sity and the University of Michigan). He had told agroup of police officers:

Too often there is the tendency on the partof the police to criticize all that the courts do -to label as technicalities the reasons given forany particular case decision that the individualpolice officer dislikes. There are times, to besure, when that is true. But there are manytimes when the reasons are substantial and basi-cally valid ....

As a police officer you may feel that thecourts should leave you alone in your efforts toenforce the law, to apprehend criminals and toprotect the public. Many courts would also liketo be left alone to do as they please. Manylegislators would also like to be left alone andunchecked. Many members of the executivebranch . . . would also like to function as theyplease. But in a democratic system, no branchof government, can be permitted to exerciseunbridled authority and power....

In any democratic society individual rightsand liberties must be preserved and we arewilling to do so at the expense of efficiency ingovernment itself. To relate this principle toyour situation, let me put it this way. We wouldrather that some criminals escape detection andpunishment-even though you, as a police offi-cer, know positively he is guilty-rather thansacrifice or even jeopardize the rights and liber-ties of the great mass of individuals who makeup this democratic society of ours. This conceptis essential. It is different in Russia, of course.There, efficiency is paramount [emphasis added].Parts of this speech read as if they came right out

of a Hugo Black opinion or Professor Louis B.Schwartz's ringing civil liberties article, On CurrentProposals to Legalize Wire Tapping, 103 U. PA. L. REv.157 (1954).

69 52 J. CRIM. L.C. & P.S. 21 (1961), in POLICEPOWER AND INDIVIDUAL FREEDOM 153 (C. Sowle ed.1962) [hereinafter referred to as Weisberg]. Thisarticle reproduces a paper Weisberg delivered atNorthwestern University School of Law on Feb. 19,1960.

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Secret Detention by Chicago Police-and he hadgiven him a wide stage.

Weisberg had the advantages of the ama-

teur-"the freedom from traditional limitationsand perspectives, the ability to raise fundamen-tal questions which professionals in the field

have long since forgotten to consider. ' 70 Whenhe came to examine police interrogation, Weis-berg was astounded by the virtually unbridleddiscretionary powers wielded by the "adminis-

trative agencies" (police departments) and "ad-ministrative officials" (police officers) in thisfield and by their ability "to prevent objectiverecordation of the facts":

The modern police function of preliminarycriminal investigation and interrogation of sus-pects is an unusual instance of discretionaryadministrative power over persons unregulatedby judicial standards.... In large measurepolice station questioning ... is governed onlyby the self-imposed restraints of the police andby limited judicial action in the small number ofcases in which police conduct becomes a litigatedissue.

Whatever the reasons for their circumspec-tion, the failure of the courts to assume super-visory powers over police interrogation practicesremains an anomaly. It is sometimes groundedon the American separation of judicial and ex-ecutive powers. But this doctrine has not pre-vented the courts from developing judicial stan-dards for other administrative agencies.

Measured by legal standards, the most uniquefeature of the police station questioning is itscharacteristic secrecy. It is secrecy which createsthe risk of abuses, which by keeping the recordincomplete makes the rules about coercionvague and difficult to apply, which inhibits thedevelopment of clear rules to govern policeinterrogation and which contributes to publicdistrust of the police. Secrecy is not the same asthe privacy which interrogation specialists insistis necessary for effective questioning. Inconspi-cuous recording equipment or concealed ob-servers would not detract from the intimacybetween the interrogator and his subject whichis said to increase the likelihood of confession.

No other case comes to mind in which anadministrative official is permitted the broaddiscretionary power assumed by the police inter-rogator, together with the power to preventobjective recordation of the facts.... It issecrecy, not privacy, which accounts for theabsence of a reliable record of interrogationproceedings in a police station. If the need for

70 Rostow, Book Review, 56 YALE L.J. 412, 413

(1947) (referring to Morris R. Cohen).

some prejudicial questioning is assumed, privacymay be defended on grounds of necessity; se-crecy cannot be defended on this or any otherground .71

Weisberg deemed it important to "give some

content to the generalities [one might say, 'eu-

phemisms'] in which the subject [of police ques-tioning] is usually discussed. '72 He thought it"playing Hamlet without the ghost to discuss

police questioning without knowing what such

quesioning is really like." 73 So he turned to"the leading police manual by Professor FredInbau and John Reid" to supply the content. 74

So far as I know, Weisberg was the first lawreview writer to make extensive use of theinterrogation manuals. And, as I have sug-gested elsewhere, each of these manuals mayhave been "equal to a dozen law review articlesin its impact on the Court. '75 For "one of the

71 Weisbergsupra note 69, at 44-45.

Of course, Weisberg's criticism of the old "volun-tariness" test applies to Miranda as well, at least as ithas generally been applied. Although language inMiranda, 384 U.S. at 475, strongly suggests that, atleast where feasible, the police must stenographicallyor, better yet, electronically record the warningsgiven to the suspect, as well as his response, so thatthey may be played back or shown to the court,"most courts have held that the testimony of anofficer that he gave the warnings is sufficient andneed not be corroborated." ALI MODEL CODE OFPRE-ARRAIGNMENT PROCEDURE 140 (commentary)(Tent. Draft No. 6, 1974).

Weisberg's extraordinary 1960 paper also antici-pates and voices grave doubts about the efficacy of asystem based on police-issued cautions or warnings:

[A]ny rule which requires a caution inevitablyinvites avoidance. Even if it is tied to an objectiveevent such as the commencement of interroga-tion or the time of arrest, the probable conflictof testimony about whether a required cautionwas in fact given makes satisfactory judicialenforcement doubtful. Any rule requiring awarning is also likely to be ineffectual since thesignificance and effect of a warning dependprimarily on emphasis and the spirit in which itwas given. A warning can easily become a mean-ingless ritual .... The notion that [the interro-gator] should precede questioning with a cau-tion suggests that the interrogator should act toprotect the interests of the suspect at the sametime that he is attempting to obtain damagingstatements from him. But this cannot effectivelysubstitute for the loyalty of counsel or the disin-terestedness of a judge.

Weisberg, supra note 69, at 40-41.72 Weisberg, supra note 69, at 22.7 3 Id.74 Id. at 22-23.

75 Kamisar, A Dissent from the Miranda Dissents, 65MICH. L. REV. 59, 86 (1966).

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most powerful features of the Due ProcessModel," as the late Herbert Packer observed,"is that it thrives on visibility. People are willingto be complacent about what goes on in thecriminal process as long as they are not toooften or too explicitly reminded of the gorydetails "76

As fate would have it, Inbau's former stu-dent, Jim Thompson, was to argue the Escobedocase for the State of Illinois, and Inbau's"adopted" student, Bernie Weisberg, was toargue the case for the ACLU, as amicus curiae .77

In his Escobedo brief, Weisberg maintained thatsince police interrogaion of arrested persons ischaracteristically conducted in privacy andwithout a record being made, "the best sources"for understanding police questioning "are thepublished manuals."7 8 Weisberg

urge[d] the Court to examine these books [whichhe extracted at considerable length in his brief].They are not exhibits in a museum of third de-gree horrors. Indeed they carefully advise thepolice interrogator to avoid tactics which areclearly coercive under prevailing law. They areinvaluable because they vividly describe the kindof interrogation practices which are accepted aslawful and proper under the best current stand-ards of professional police work.7 9

Weisberg's great paper on confessions andhis powerful Escobedo brief set the fashion forcivil libertarians. The ACLU brief in Miranda(a magnificent performance by Professors An-thony Amsterdam, Paul Mishkin, et al.) re-printed a full chapter from O'Hara's Fundamen-tals of Criminal Investigation (1956). In turn, themajority opinion in Miranda devoted six fullpages to extracts from various police manualsand texts8° "document[ing] procedures em-ployed with success in the past, and ... recom-mend[ing] various other effective tactics."81

Many of the examples selected by the Court are

76 Packer, Two Models of the Criminal Process, 113 U.PA. L. REv. 1, 64 (1964).

77 Inbau didn't gain a "clean sweep." Barry L.Kroll, a Michigan Law School graduate, argued thecause for Danny Escobedo.

78 See the extracts from the brief in Y. KAMISAR,

W. LAFAVE & J. ISRAEL, MODERN CRIMINAL PROCE-DURE 519 (4th ed. 1974).7

9Id.

80 Miranda v. Arizona, 384 U.S. 436,449-54 (1966).81 Id. at 448. The Miranda dissenters criticized the

Court for failing to establish that any of the manualswere the "official manuals" of any police departmentor even that they were widely used by police interro-gators, and voiced doubts that they were, 384 U.S. at

the same ones Weisberg used in his 1960 articleand in his 1964 Escobedo brief.

Now the curious thing about Weisbergs im-portant contribution to the law of confessionsis that, as he readily admits, he never wouldhave pursued his interest in this field but forInbau's encouragement. It is a delicious irony thatwhen Inbau urged Weisberg to think moredeeply about the vexing problems of policeinterrogation and confessions- when back in1960 he invited this relatively obscure generalpractitioner to deliver a major paper articulat-ing his "skeptical views" on the subject-Inbaudid what some think the privilege against self-incrimination is supposed to prevent-hepulled the lever which sprung the trap onwhich he stood .

2

The Miranda opinion quotes from or citesthe 1953 and 1962 Inbau-Reid manuals no lessthan ten times-and never with approval 2 Itis plain that these publications "vented ChiefJustice Warren's judicial ire. ' ' s The day afterMiranda was handed down, Inbau should havebeen a beaten man. But he wasn't.85

He knew, no less than did our most brilliantcivil liberties lawyer, that "the judgments" thatthese issues require "are too large, too ungov-

499, 532-33. Two weeks after Miranda was handeddown, however, Thomas C. Lynch, then AttorneyGeneral of California, reported that a preliminarysurvey indicated "wide use" in his state of the critf-cized manuals and that he was considering a "purge"of all such publications. Professor Philip Zimbardo, apsychologist greatly troubled by various interrogationtechniques, also reported that he had "verified thatthese manuals are used in training [police] interro-gators by calling several police academies." See Kam-isar, supra note 75, at 86 n.109.

82 See, e.g., E. GRISWOLD, THE FIFTH AMENDMENTTODAY 7 (1955).

" See 384 U.S. at 449-55. The references are to F.INBAU & J. REID, CRIMINAL INTERROGATION AND

CONFESSIONS (1962); F. INBAU &J. REID, LIE DETEc-

TION AND CRIMINAL INTERROGATION (3d ed. 1953).84 Broderick, Book Review, 53 CORNELL L. REV.

737, 741 (1968).85 Indeed, a year after Miranda, the irrepressible

Inbau-Reid team published a new edition of theirinterrogation manual, retaining, after the prescribedwarnings have been given, many of the tactics andtechniques that seem to have chagrinned the authorof the Miranda opinion. See Broderick, supra note 84.But Miranda "did not condemn any specific tech-niques or hold that evidence obtained by use of themwould be inadmissible. Reliance was placed on warn-ing and counsel to protect the suspect." Elsen &Rosett, Protections for the Suspect under Miranda v.Arizona, 67 COLUM. L. REV. 645, 667 (1967). See alsonote 6 supra.

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erned by a commanding text or clear institu-tional dictates, to be laid solidly to rest.8s6 Heknew, too, that "[pirecedents upon such issuesare particularly fragile under the buffeting ofrapid historical developments that incessantlyplace unprecedented strains upon the Court. 7

As it turned out, a period of "social upheaval,violence in the ghettos, and disorder on thecampuses"88 had already begun. The politicalassassinations and near-assassinations of thelate 1960's; more urban "riots"; the presidentialcampaign of 1968; the "obviously retaliatory"provisions of the Crime Control Act of 1968and other political exploitation of the "law andorder" issue; the ever-soaring crime statistics; 9

and the ever-spreading fears of the breakdownof public order soon "combined to create anatmosphere that, to say the least, was unfavor-able to the continued vitality of the WarrenCourt's mission in criminal cases." 90

I was one of those who implored the Courtto "exercise leadership," to be "bold" and "in-novative." Yet I was outraged when "its deci-sions arouse[d], as they must, resentment andpolitical attack." 91 At this point, I became alawyer "marching behind the solemn, sacro-sanct banner of the law. [I] want[ed] it bothways."' ? It seems much clearer to me todaythan it was fifteen years ago, or even ten,that-although he was wrong on the merits-Inbau was perfectly within his rights in deplor-ing, and arguing against, McNabb, Mallory,Mapp and Miranda.

Although I happen to think that most ofInbau's ideas deserve to be rejected, he never-theless furthered, or should have furthered,the thinking of all of us. As one of the "CrimeControl model's" "few full-fledged academicdefenders," 93 Inbau not only presents the po-

88 Amsterdam, Perspectives on the Fourth Amendment,58 MINN. L. REV. 349, 353 (1974).

87 Id.' Allen, The Judicial Quest for Penal Justice: The

Warren Court and the Criminal Cases, 1975 U. ILL. L.F.518, 539.

89But see Kamisar, How to Use, Abuse-and FightBack with-Crime Statistics, 25 OKA. L. REv. 239(1972).

90 Allen, supra note 88 at 539.91 Jaffe, Impromptu Remarks, 76 HARV. L. REV.

1111 (1963).92 Id.13 ,The late Alexander Bickel so described Inbau.

See Bickel, The Role of the Supreme Court of the UnitedStates, 44 TEX. L. REV. 954, 962 (1966).

When Bickel used the "Crime Control model"

liceman's view of recent cases, but articulatesthe officer's critical needs and deep concerns.Too many of us are content to point out whatthe policeman cannot or must not do. Inbau, onthe other hand, will pepper you with hypothet-ical fact situations and ask: "You are the police-man; what would you do in this case?" Moretimes than I like to admit, I have felt that theprice of remaining faithful to the "Due Processmodel" 94 was to appear rather foolish. Whatcan the policeman do? What should he be ableto do? How can the legislature be of assistanceto him? I don't think I am the only law profes-sor who finds it more exhilarating to confinehimself to what the policeman cannot or mustnot do. gut the time has long since passedwhen we can afford that luxury.

Most people know Inbau only from the rous-ing talks he gave at the local Rotary Club orfrom the fighting speeches he delivered atcountless prosecutor and police conventions,exhorting the troops to victory in the great"war against crime." But there is more thanone Inbau. There is also the Inbau who, in theprivacy of his office or over a drink, can dispas-sionately and masterfully dissect the latest Su-preme Court opinions; who can laugh as hardat himself as he does at the "law professors" onand off the bench. There is also the Inbauwhose goal at each of the many conferences heconceives and directs is to bring to bear uponproblem areas "the greatest possible breadth ofviewpoint and depth of insight" 95 and to have

term he was, of course, referring to ProfessorPacker's famous article, Two Models of the CriminalProcess, 113 U. PA. L. REV. 1 (1964). Packer subse-quently rather summarily described the "polar ex-tremes" which represent "competing value choices"as follows:

The Crime Control model sees the efficient,expeditious and reliable screening and disposi-tion of persons as the central value to be servedby the criminal process. The Due Process modelsees that function as limited by and subordinateto the maintenance of the dignity and autonomyof the individual. The Crime Control model isadministrative and managerial; the Due Processmodel is adversary and judicial. The CrimeControl model may be analogized to an assemblyline, the Due Process model to an obstaclecourse.

Packer, The Courts, The Police and the Rest of Us, 57 J.CRIM. L.C. & P.S. 238, 239 (1966).

94See note 93 supra.9 See the introduction to the collection of confer-

ence papers in POLICE POWER AND INDIVIDUAL FREE-DOM (C. Sowle ed. 1962).

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all in attendance leave with their swords andbanners lowered and their sensitivities raised.As an "expert in controversy," this iconoclasticlaw professor, no less than the "iconoclast fromBaltimore," "welcomed attacks on himself,partly because they showed that his thrusts hadgone home, partly because he defended every-one's right to have his say, and partly becausehe felt that destructive criticism, even of hisown work, was much more stimulating than

acclaim ."96

Fred would be quick to deny that he is "theprofessor." If anything, he sees himself as the"anti-professor"-or so he says, Methinks hedoes protest too much. One of the Inbaus, atleast, is more "the professor" than a considera-ble number who profess to be, more "theprofessor" than any of the Inbaus would evercare to admit.

90 D. Stenerson, H. L. MENCKEN: ICONOCLASTFROM BALTIMORE 226 (1971).

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fred e. inbau: 'the importance of being guilty

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