# Stein v. New York Wissner/Dissent Frankfurter

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* Dissenting Opinions Black Frankfurter Douglas
United States Supreme Court
346 U.S. 156
Stein v. New York Wissner
Argued: Dec. 18, 1952. --- Decided: June 15, 1953
Mr. Justice FRANKFURTER, dissenting.
1. Of course the Fourteenth Amendment is not to be applied so as to turn this Court into a tribunal for revision of criminal convictions in the State courts. I have on more than one occasion expressed my strong belief that the requirements of due process do not hamper the States, beyond the narrow limits of imposing upon them standards of decency deeply felt and widely recognized in Anglo-American jurisdictions, either in penalizing conduct or in defining procedures appropriate for securing obedience to penal laws. Nor is this substantial autonomy of the States to be curtailed in capital cases.
2. It is common ground that the third degree-the colloquial term for subjecting an accused to police pressures in order to extract confessions-may reach a point where confessions, although not resulting from the application of physical force, are as a matter of human experience equally the results of coercion in any fair meaning of that term and therefore not 'voluntary' in any relevant sense. Differences of view inevitably arise among judges in deciding when that point has been reached. Such differences are reflected in a long series of cases in this Court. An important factor, no doubt, influencing the different conclusions is the varying intensity of feeling on the part of different judges that coercive police methods not only may bring into question the trustworthiness of a confession but tend to brutalize habits of feeling and action on the part of the police, thereby adversely affecting the moral tone of the community.
Of course, the most serious deference is to be accorded the conclusion reached by a State court that a confession was not coerced. See my concurring opinions in Malinski v. People of State of New York, 324 U.S. 401, 412, 65 S.Ct. 781, 786, 89 L.Ed. 1029; Haley v. State of Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 304, 92 L.Ed. 224. But the duty of deference cannot be allowed imperceptibly to slide into an abdication by this Court of its obligation to ascertain whether, under the circumstances of a particular case, a confession represents not the candor of a guilty conscience, the need of an accused to unburden himself, but the means of release from the tightening of the psychological police screws. This issue must be decided without regard to the confirmation of details in the confession by reliable other evidence. The determination must not be influenced by an irrelevant feeling of certitude that the accused is guilty of the crime to which he confessed. Above all, it must not be influenced by knowledge, however it may have revealed itself, that the accused is a bad man with a long criminal record. All this, not out of tenderness for the accused but because we have reached a certain stage of civilization.
In the light of these considerations, I am compelled to conclude that the confessions here were the product of coercive police pressure. I cannot believe that these confessions, in view of the circumstances under which they were elicited, would be admitted in a criminal trial in England, or in the courts of Canada, Australia or India. I regret that the Court reaches another conclusion on the record, though I respect a conscientious interpretation of the record differing from mine.
3. But the Court goes beyond a mere evaluation of the facts of this record. It makes a needlessly broad ruling of law which overturns what I had assumed was a settled principle of constitutional law. It does so sua sponte. The question was not raised and not argued and has emerged for the first time in the Court's opinion. Unless I am mistaken about the reach of the Court's opinion, and I profoundly hope that I am, the Court now holds that a criminal conviction sustained by the highest court of a State, and more especially one involving a sentence of death, is not to be reversed for a new trial, even though there entered into the conviction a coerced confession which in and of itself disregards the prohibition of the Due Process Clause of the Fourteenth Amendment. The Court now holds that it is not enough for a defendant to establish in this Court that he was deprived of a protection which the Constitution of the United States affords him; he must also prove that if the evidence unconstitutionally admitted were excised there would not be enough left to authorize the jury to find guilt.
An impressive body of opinion, never questioned by any decision or expression of this Court, has established a contrary principle. And this not only with reference to the admissibility of coerced confessions; the principle has governed other aspects of disregard of the requirements of the Fourteenth Amendment in State trials. I refer inter alia to cases of discrimination in the selection of personnel of a grand jury which found an indictment. We have reversed in such cases even though there was no error in the conduct of the trial itself.
4. It is painful to be compelled to say that the Court is taking a retrogressive step in the administration of criminal justice. I can only hope that it is a temporary, perhaps an ad hoc, deviation from a long course of decisions. By its change of direction the Court affords new inducement to police and prosecutors to employ the third degree, whose use the Wickersham Commission found 'widespread' more than thirty years ago and which it unsparingly condemned as 'conduct * * * violative of the fundamental principles of constitutional liberty.' IV Reports, National Commission on Law Observance and Enforcement, 1, 4, 6 (1931).
The Wickersham Commission deemed it its duty 'to lay the facts-the naked, ugly facts-of the existing abuses before the public,' id., at 6, in the hope of arousing public awareness, and thereby public condemnation, of such abuses. It surely is not self-deluding or boastful to believe that the series of cases in which this Court reversed convictions because of such abuses helped to educate public opinion and to arouse in prosecutors and police not only a wholesome fear but also a more conscientious feeling against resort to these lazy, brutal methods.
In addressing himself to law enforcement officials, Director J. Edgar Hoover of the Federal Bureau of Investigation has made these observations: 'One of the quickest ways for any law enforcement officer to bring public disrepute upon himself, his organization and the entire profession is to be found guilty of a violation of civil rights. * * * Civil rights violations are all the more regrettable because they are so unnecessary. Professional standards in law enforcement provide for fighting crime with intelligence rather than force.' (FBI Law Enforcement Bulletin, September, 1952, p. 1.) But if law officers learn that from now on they can coerce confessions without risk, since trial judges may admit such confessions provided only that, perhaps through the very process of extorting them, other evidence has been procured on which a conviction can be sustained, police in the future even more so than in the past will take the easy but ugly path of the third degree. I do not remotely suggest that any such result is contemplated by the Court. But it will not be the first time that results neither desired nor foreseen by an opinion have followed.
5. The matters which I have thus briefly stated cut so deep as to call for full exposition. Since promptness in the disposition of criminal cases is one of the most important factors for a civilized system of criminal justice, I must content myself now with this summary of my views without their elaboration.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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