SUPREME COURT OF THE UNITED STATES
322 U.S. 143
Ashcraft v. Tennessee
Argued: February 28, 1944
Decided: May 1, 1944
Messrs. James F. Bickers and Grover N. McCormick, both of Memphis, Tenn., for petitioners.
Mr. Nat Tipton, of Nashville, Tenn., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
About three o’clock on the morning of Thursday, June 5, 1941, Mrs. Zelma Ida Ashcraft got in her automobile at her home in Memphis, Tennessee, and set out on a trip to visit her mother’s home in Kentucky. Late in the afternoon of the same day her car was observed a few miles out of Memphis, standing on the wrong side of a road which she would likely have taken on her journey. Just off the road, in a slough, her lifeless body was found. On her head were cut places inflicted by blows sufficient to have caused her death. Petitioner Ware, age 20, a Negro, was indicted in a state court and found guilty of her murder. Petitioner Ashcraft, age 45, a white man, husband of the deceased, charged with having hired Ware to commit the murder, was tried jointly with Ware and convicted as an accessory before the fact. Both were sentenced to ninety-nine years in the state penitentiary. The Supreme Court of Tennessee affirmed the convictions.
In applying to us for certiorari, Ware and Ashcraft urged that alleged confessions were used at their trial which had been extorted from them by state law enforcement officers in violation of the Fourteenth Amendment, and that ‘solely and alone’ on the basis of these confessions they had been convicted. Their contentions raised a federal question which the record showed to be substantial and we brought both cases here for review. Upon oral argument before this Court Tennessee’s legal representatives conceded that the convictions could not be sustained without the confessions but defended their use upon the ground that they were not compelled but were ‘freely and voluntarily made.’
The record discloses that neither the trial court nor the Tennessee Supreme Court actually held as a matter of fact that petitioners’ confessions were ‘freely and voluntarily made.’ The trial court heard evidence on the issue out of the jury’s hearing, but did not itself determine from that evidence that the confessions were voluntary. Instead it over-ruled Ashcraft’s objection to the use of his alleged confession with the statement that, ‘This Court is not able to hold, as a matter of law, that reasonable minds might not differ on the question of whether or not that alleged confession was voluntarily obtained.’ And it likewise over-ruled Ware’s objection to use of his alleged confession, stating that ‘the reasonable minds of twelve men might * * * differ as to * * * whether Ware’s confession was voluntary, and * * * therefore, that is a question of fact for the jury to pass on.’ [1] Nor did the State Supreme Court review the evidence pertaining to the confessions and affirmatively hold them voluntary. In sustaining the petitioners’ convictions, one Justice dissenting, it went no further than to point out that, ‘The trial judge * * * held * * * he could not say that the confessions were not voluntarily made and, therefore, permitted them to go to the jury’, and to declare that it, likewise, was ‘unable to say that the confessions were not freely and voluntarily made.’ [2]
If, therefore, the question of the voluntariness of the two confessions was actually decided at all it was by the jury. And the jury was charged generally on the subject of the two confessions as follows:
‘I further charge you that if verbal or written statements made by the defendants freely and voluntarily and without fear of punishment or hope of reward, have been proven to you in this case, you may take them into consideration with all of the other facts and circumstances in the case. * * * In statements made at the time of the arrest, you may take into consideration the condition of the minds of the prisoners owing to their arrest and whether they were influenced by motives of hope or fear, to make the statements. Such a statement is competent evidence against the defendant who makes it and is not competent evidence against the other defendant. * * * You cannot consider it for any purpose against the other defendant.’
Concerning Ashcraft’s alleged confession this general charge constituted the sole instruction to the jury. [3] But with regard to Ware’s alleged confession the jury further was instructed:
‘It is his (Ware’s) further theory that he was induced by the fear of violence at the hands of a mob and by fear of the officers of the law to confess his guilt of the crime charged against him, but that such confession was false and that he had nothing whatsoever to do with, and no knowledge of the alleged crime. If you believe the theory of the defendant, Ware, * * * it is your duty to acquit him.’
Having submitted the two alleged confessions to the jury in this manner, the trial court instructed the jury that:
‘what the proof may show you, if anything, that the defendants have said against themselves, the law presumes to be true, but anything the defendants have said in their own behalf, you are not obliged to believe. * * *’
This treatment of the confessions by the two State courts, the manner of the confessions’ submission to the jury, and the emphasis upon the great weight to be given confessions make all the more important the kind of ‘independent examination’ of petitioners’ claims which, in any event, we are bound to make. Lisenba v. California, 314 U.S. 219, 237, 238, 62 S.Ct. 280, 290, 86 L.Ed. 166. Our duty to make that examination could not have been ‘foreclosed by the finding of a court, or the verdict of a jury, or both.’ Id. We proceed therefore to consider the evidence relating to the circumstances out of which the alleged confessions came.
First, as to Ashcraft. Ashcraft was born on an Arkansas farm. At the age of eleven he left the farm and became a farm hand working for others. Years later he gravitated into construction work, finally becoming a skilled dragline and steam shovel operator. Uncontradicted evidence in the record was that he had acquired for himself ‘an excellent reputation.’ In 1929 he married the deceased Zelma Ida Ashcraft. Childless, they accumulated, apparently through Ashcraft’s earnings, a very modest amount of jointly held property including bank accounts and an equity in the home in which they lived. The Supreme Court of Tennessee found ‘nothing to show but what the home life of Ashcraft and the deceased was pleasant and happy.’ Several of Mrs. Ashcraft’s friends who were guests at the Ashcraft home on the night before her tragic death testified that both husband and wife appeared to be in a happy frame of mind.
The officers first talked to Ashcraft about 6 P.M. on the day of his wife’s murder as he was returning home from work. Informed by them of the tragedy, he was taken to an undertaking establishment to identify her body which previously had been identified only by a driver’s license. From there he was taken to the county jail where he conferred with the officers until about 2 A.M. No clues of ultimate value came from this conference, though it did result in the officers’ holding and interrogating the Ashcrafts’ maid and several of her friends. During the following week the officers made extensive investigations in Ashcraft’s neighborhood and elsewhere and further conferred with Ashcraft himself on several occasions, but none of these activities produced tangible evidence pointing to the identity of the murderer.
Then, early in the evening of Saturday, June 14, the officers came to Ashcraft’s home and ‘took him into custody.’ In the words of the Tennessee Supreme Court,
‘They took him to an office or room on the northwest corner of the fifth Floor of the Shelby County jail. This office is equipped with all sorts of crime and detective devices such as a fingerprint outfit, cameras, high-powered lights, and such other devices as might be found in a homicide investigating office. * * * It appears that the officers placed Ashcraft at a table in this room on the fifth floor of the county jail with a light over his head and began to quiz him. They questioned him in relays until the following Monday morning, June 16, 1941, around nine-thirty or ten o’clock. It appears that Ashcraft from Saturday evening at seven o’clock until Monday morning at approximately nine-thirty never left this homicide room of the fifth floor.’ [4]
Testimony of the officers shows that the reason they questioned Ashcraft ‘in relays’ was that they became so tired they were compelled to rest. But from 7:00 Saturday evening until 9:30 Monday morning Ashcraft had no rest. One officer did say that he gave the suspect a single five minutes respite, but except for this five minutes the procedure consisted of one continuous stream of questions.
As to what happened in the fifth-floor jail room during this thirty-six hour secret examination the testimony follows the usual pattern and is in hopeless conflict. [5]Ashcraft swears that the first thing said to him when he was taken into custody was, ‘Why in hell did you kill your wife?’; that during the course of the examination he was threatened and abused in various ways; and that as the hours passed his eyes became blinded by a powerful electric light, his body became weary, and the strain on his nerves became unbearable. [6] The officers, on the other hand, swear that throughout the questioning they were kind and considerate. They say that they did not accuse Ashcraft of the murder until four hours after he was brought to the jail building, though they freely admit that from that time on their barrage of questions was constantly directed at him on the assumption that he was the murderer. Together with other persons whom they brought in on Monday morning to witness the culmination of the thirty-six hour ordeal the officers declare that at that time Ashcraft was ‘cool’, ‘calm’, ‘collected,’ ‘normal’; that his vision was unimpaired and his eyes not bloodshot; and that he showed no outward signs of being tired or sleepy.
As to whether Ashcraft actually confessed there is a similar conflict of testimony. Ashcraft maintains that although the officers incessantly attempted by various tactics of intimidation to entrap him into a confession, not once did he admit knowledge concerning or participation in the crime. And he specifically denies the officers’ statements that he accused Ware of the crime, insisting that in response to their questions he merely gave them the name of Ware as one of several men who occasionally had ridden with him to work. The officers’ version of what happened, however, is that about 11 P.M. on Sunday night, after twenty-eight hours’ constant questioning, Ashcraft made a statement that Ware had overpowered him at his home and abducted the deceased, and was probably the killer. About midnight the officers found Ware and took him into custody, and, according to their testimony, Ware made a self-incriminating statement as of early Monday morning, and at 5:40 A.M. signed by mark a written confession in which appeared the statement that Ashcraft had hired him to commit the murder. This alleged confession of Ware was read to Ashcraft about six o’clock Monday morning, whereupon Ashcraft is said substantially to have admitted its truth in a detailed statement taken down by a reporter. About 9:30 Monday morning a transcript of Ashcraft’s purported statement was read to him. The State’s position is that he affirmed its truth but refused to sign the transcript, saying that he first wanted to consult his lawyer. As to this latter 9:30 episode the officers’ testimony is reinforced by testimony of the several persons whom they brought in to witness the end of the examination.
In reaching our conclusion as to the validity of Ashcraft’s confession we do not resolve any of the disputed questions of fact relating to the details of what transpired within the confession chamber of the jail or whether Ashcraft actually did confess. [7] Such disputes, we may say, are an inescapable consequence of secret inquisitorial practices. And always evidence concerning the inner details of secret inquisitions [8] is weighted against an accused, particularly where, as here, he is charged with a brutal crime, or where, as in many other cases, his supposed offense bears relation to an unpopular economic, political, or religious cause.
Our conclusion is that if Ashcraft made a confession it was not voluntary but compelled. We reach this conclusion from facts which are not in dispute at all. Ashcraft, a citizen of excellent reputation, was taken into custody by police officers. Ten days’ examination of the Ashcrafts’ maid, and of several others, in jail where they were held, had revealed nothing whatever against Ashcraft. Inquiries among his neighbors and business associates likewise had failed to unearth one single tangible clue pointing to his guilt. For thirty-six hours after Ashcraft’s seizure during which period he was held incommunicado, without sleep or rest, relays of officers, experienced investigators, and highly trained lawyers questioned him without respite. From the beginning of the questioning at 7 o’clock on Saturday evening until 6 o’clock on Monday morning Ashcraft denied that he had anything to do with the murder of his wife. And at a hearing before a magistrate about 8:30 Monday morning Ashcraft pleaded not guilty to the charge of murder which the officers had sought to make him confess during the previous thirty-six hours.
We think a situation such as that here shown by uncontradicted evidence is so inherently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear. [9] It is inconceivable that any court of justice in the land, conducted as our courts are, open to the public, would permit prosecutors serving in relays to keep a defendant witness under continuous cross examination for thirty-six hours without rest or sleep in an effort to extract a ‘voluntary’ confession. Nor can we, consistently with Constitutional due process of law, hold voluntary a confession where prosecutors do the same thing away from the restraining influences of a public trial in an open court room. [10]
The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession. [11] There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.
Second, as to Ware. Ashcraft and Ware were jointly tried, and were convicted on the theory that Ashcraft hired Ware to perform the murder. Ware’s conviction was sustained by the Tennessee Supreme Court on the assumption that Ashcraft’s confession was properly admitted and his conviction valid. Whether it would have been sustained had the court reached the conclusion we have reached as to Ashcraft we cannot know. Doubt as to what the State court would have done under the changed circumstances brought about by our reversal of its decision as to Ashcraft is emphasized by the position of the State’s representatives in this Court. They have asked that if we reverse Ashcraft’s conviction we also reverse Ware’s.
In disposing of cases before us it is our responsibility to make such disposition as justice may require. ‘And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.’ Patterson v. Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 578, 79 L.Ed. 1082; State Tax Commission v. Van Cott, 306 U.S. 511, 515, 516, 59 S.Ct. 605, 607, 83 L.Ed. 950. Application of this guiding principle to the case at hand requires that we send Ware’s case back to the Tennessee Supreme Court. Should that Court in passing on Ware’s conviction in the light of our ruling as to Ashcraft adopt the State Attorney General’s view and reverse the conviction there then would be no occasion for our passing on the federal question here raised by Ware. Under these circumstances we vacate the judgment of the Tennessee Supreme Court affirming Ware’s conviction, and remand his case to that court for further proceedings.
The judgment affirming Ashcraft’s conviction is reversed and the cause is remanded to the Supreme Court of Tennessee for proceedings not inconsistent with this opinion. It is so ordered.
Judgment of Tennessee Supreme Court affirming defendant Ware’s conviction vacated and case remanded with directions and judgment of Tennessee Supreme Court affirming Ashcraft’s conviction reversed and cause remanded with directions.
Notes
^1 The legal test applied by the trial court to determine the admissibility of the two confessions was stated thus:
‘The Court has come to the conclusion * * * that the law in Tennessee with reference to confession is simply this: it is largely a question of fact as to whether or not a confession is voluntary, and is made without hope of reward or fear of punishment. It only becomes a question of law for the Court to decide when, from the facts surrounding the taking of the alleged confessions or statements, the Court, as a matter of law, can hold that the State has failed to carry its burden, which it has of showing that the confessions were free and voluntarily, and that reasonable minds could not differ, and could come to but one conclusion that the confessions were involuntary and forced.’
^2 Notwithstanding the apparent fact that neither the trial court nor the appellate court affirmatively held the confessions voluntary, the Tennessee Supreme Court, in its opinion, restated the rule it had announced in previous cases, that, ‘When confessions are offered as evidence, their competency becomes a preliminary question, to be determined by the Court. * * * (If) the judge allow the jury to determine the preliminary fact, it is error, for which the judgment will be reversed.’ See Self v. State, 6 Baxt. 224, 253, 65 Tenn. 244, 253.
^3 On motion for new trial, Ashcraft’s counsel urged error in that, ‘The court * * * in delivering his charge to the jury * * * in no place or at any time * * * presented the theory of the defendant Ashcraft to the jury. He wholly and completely in his charge ignored the theory of the defendant Ashcraft that the alleged confessions or admissions made by him * * * were not freely and voluntarily made. * * *’
^4 From the testimony it appears that Ashcraft was taken from the jail about 11 o’clock Sunday night for a period of approximately an hour to help the officers hunt the place where Ware lived. On his return Ashcraft was, for a short time, kept in a jail room different from that in which he was kept the rest of the time.
^5 ‘As the report avers ‘The third degree is a secret and illegal practice.’ Hence the difficulty of discovering the facts as to the extent and manner it is practiced’ IV Reports of National Committee on Law Observance and Enforcement (Wickersham Commission), U.S. Government Printing Office, 1931, Lawlessness in Law Enforcement, p. 3. Station houses and jails are most frequently employed for third degree practices, ‘upstairs rooms or back rooms being sometimes picked out for their greater privacy.’ Id., The Third Degree, p. 170; cf. Chambers v. Florida, 309 U.S. 227, 238, 60 S.Ct. 472, 477, 84 L.Ed. 716.
^6 “Work’ is the term used to signify any form of what is commonly called the third degree, and may consist in nothing more than a severe cross-examination. Perhaps in most cases it is no more than that, but the prisoner knows he is wholly at the mercy of his inquisitor and that the severe cross-examination may at any moment shift to a severe beating. * * * Powerful lights turned full on the prisoner’s face, or switched on and off have been found effective. * * * The most commonly used method is persistent questioning continuing hour after hour, sometimes by relays of officers. It has been known since 1500 at least that deprivation of sleep is the most effective torture and certain to produce any confession desired.’ Report of Committee on Lawless Enforcement of Law made to the Section of Criminal Law and Criminology of the American Bar Association (1930) 1 American Journal of Police Science 575, 579-580, also quoted in IV Wickersham Report, supra, p. 47.
^7 The use in evidence of a defendant’s coerced confession cannot be justified on the ground that the defendant has denied he ever gave the confession. White v. Texas, 310 U.S. 530, 531, 532, 60 S.Ct. 1032, 1033, 84 L.Ed. 1342.
^8 State and federal courts, textbook writers, legal commentators, and governmental commissions consistently have applied the name of ‘inquisition’ to prolonged examination of suspects conducted as was the examination of Ashcraft. See, e.g., cases cited in IV Wickersham Report, supra, and also pp. 44, 47, 48, and passim; Pound (Cuthbert W.), Inquisitorial Confessions, 1 Cornell L.Q. 77; Chambers v. Florida, 309 U.S. 227, 237, 60 S.Ct. 472, 477, 84 L.Ed. 716; Bram v. United States, 168 U.S. 532, 544, 18 S.Ct. 183, 187, 42 L.Ed. 568; Brown v. Walker, 161 U.S. 591, 596, 16 S.Ct. 644, 646, 40 L.Ed. 819; Counselman v. Hitchcock, 142 U.S. 547, 573, 12 S.Ct. 195, 202, 35 L.Ed. 1110; cf. Cooper v. State, 86 Ala. 610, 611, 6 So. 110, 4 L.R.A. 766, 11 Am.St.Rep. 84. In a case where no physical violence was inflicted or threatened, the Supreme Court of Virginia expressly approved the statement of the trial judge that the manner and methods used in obtaining the confession read ‘like a chapter from the history of the inquisition of the Middle Ages.’ Enoch v. Commonwealth, 141 Va. 411, 423, 126 S.E. 222, 225; and see Cross v. State, 142 Tenn. 510, 514, 221 S.W. 489, 9 A.L.R. 1354. The analogy, of course, was in the fact that old inquisition practices included questioning suspects in secret places, away from friends and counsel, with notaries waiting to take down ‘confessions’, and with arrangements to have the suspect later affirm the truth of his confession in the presence of witnesses who took no part in the inquisition. See Encyclopedia Britannica, Fourteenth Ed., ‘Inquisition’; Prescott, Ferdinand and Isabella, Sixth Ed., Part First, Chap. VII. The Inquisition; VIII Wigmore on Evidence, Third Ed., p. 307. ‘In the more serious offenses the party suspected is arrested, he is placed on his inquisition before the chief of police, and a statement is obtained. * * * Where the office of the district attorney is in political harmony with the police system, the district attorney is generally invited to be present as an inquisitor.’ 2 Wharton on Criminal Evidence, Eleventh Ed., pp. 1021-1022; and see Notes 5 and 6, supra.
An admirable summary of the generally expressed judicial attitude toward these practices is set forth in the Report of The Committee on Lawless Enforcement of Law, 1 Amer.Journ. of Police Science, supra, p. 587: ‘Holding incommunicado is objectionable because arbitrary-at the mere will and unregulated pleasure of a police officer. * * * The use of the third degree is obnoxious because it is secret; because the prisoner is wholly unrepresented; because there is present no neutral, impartial authority to determine questions between the police and the prisoner; because there is no limit to the range of the inquisition, nor to the pressure that may be put upon the prisoner.’
^9 Bram v. United States, 168 U.S. 532, 556, 562, 563, 18 S.Ct. 183, 192, 194, 42 L.Ed. 568; see also Ziang Sung Wan v. United States, 266 U.S. 1, 14, 15, 45 S.Ct. 1, 3, 4, 69 L.Ed. 131; Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159; Counselman v. Hitchcock, 142 U.S. 547, 573, 574, 12 S.Ct. 195, 202, 35 L.Ed. 1110; 3 Elliot’s Debates, pp. 445-449, 452; cf. Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716. The question in the Bram case was whether Bram had been compelled or coerced by a police officer to make a self-incriminatory statement, contrary to the Fifth Amendment; and the question here is whether Ashcraft similarly was coerced to make such a statement, contrary to the Fourteenth Amendment. Lisenba v. California, 314 U.S. 219, 236, 238, 62 S.Ct. 280, 289, 290, 86 L.Ed. 166. Taken together, the Bram and Lisenba cases hold that a coerced or compelled confession cannot be used to convict a defendant in any state or federal court. And the decision in the Bram case makes it clear that the admitted circumstances under which Ashcraft is alleged to have confessed preclude a holding that he acted voluntarily.
^10 Compare the following allegation contained in Ashcraft’s motion for new trial, ‘The Sheriff’s deputies * * * set themselves up as a quasi judicial tribunal and tried * * * and convicted him there and in so doing rendered a trial * * * before the trial court * * * and the jury of peers * * * a mere formality,’ with Lisenba v. California, supra, 314 U.S. at page 237, 62 S.Ct. at page 290, 86 L.Ed. 166. ‘The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions. * * *’ Cooley’s Constitutional Limitations, Sixth Ed. (1890) p. 379; see also Keddington v. State, 19 Ariz. 457, 459, 172 P. 273, L.R.A.1918D, 1093. ‘The aid of counsel in preparation would be farcical if the case could be foreclosed by a preliminary inquisition which would squeeze out conviction or prejudice by means unconstitutional if used at the trial.’ Wood v. United States, 75 U.S.App.D.C. 274, 128 F.2d 265, 271, 141 A.L.R. 1318. See also Chambers v. Florida, supra, 309 U.S. at page 237, 60 S.Ct. at page 477, 84 L.Ed. 716, note 10.
^11 Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Canty v. Alabama, 309 U.S. 629, 60 S.Ct. 612, 84 L.Ed. 988; White v. Texas, 310 U.S. 530, 60 S.Ct. 1032, 84 L.Ed. 1342; Lomax v. Texas, 313 U.S. 544, 61 S.Ct. 956, 85 L.Ed. 1511; Vernon v. Alabama, 313 U.S. 547, 61 S.Ct. 1092, 85 L.Ed. 1513; Lisenba v. California, 314 U.S. 219, 236-238, 62 S.Ct. 280, 289, 290, 86 L.Ed. 166; Ward v. Texas, 316 U.S. 547, 555, 62 S.Ct. 1139, 1143, 86 L.Ed. 1663; and see Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568.
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