The purpose of the due process requirement, in the context of this case, is to secure fundamental fair play and decent conduct by law enforcement officials in the procurement of evidence for trial use (Lisenba v. California, 314 U. S. 219, 236).
*88Through the years, ease by ease, the courts have shaped a set of guiding rules designed to safeguard the accused before as well as after indictment. These rules have been molded into a stem code of accountability for official transgressions which has gathered strength because its frontiers have been extended carefully through experience distilled from a succession of situations under review. The very vigor of this complex of rules derives from its capacity to accommodate, albeit cautiously for reasons later stated, .to newly posed situations.
Certainly, to set the fact of indictment as the absolute, artificial boundary beyond which any statement made by an accused without benefit of counsel becomes inadmissible is utterly unreal. To illustrate: A suspect not under indictment could be coerced into making a confession by harsh measures falling just short of those proscribed by the eases. His statement would be voluntary, in the due process sense, and therefore admissible. On the other hand, a conscience-stricken defendant named in an indictment could surrender himself, simultaneously babbling his guilt without any prodding or questioning whatsoever; and this would be deemed an involuntary statement, and therefore inadmissible.
The majority rests its holding essentially on People v. Di Biasi (7 N Y 2d 544), which in turn relies heavily on Spano v. New York (360 U. S. 315). In the recent case of People v. Downs (8 N Y 2d 860), however, the Court of Appeals made it clear (as was expressed by the majority of the United States Supreme Court in the Spano case) that it had not held in Di Biasi that a defendant had an absolute right to representation by counsel during questioning after indictment.
In the Spano and Di Biasi cases, the defendants had surrendered voluntarily, and furthermore, through the instrumentality of their attorneys. On the other hand, in the Doions case, as here, the defendant was apprehended by the authorities, and did not surrender by arrangement with them. And in Downs, again as in the case under review, there was no suggestion of oppressive or unfair methods in procuring the confession. In holding all three confessions made by the defendant in the Downs case admissible, the Court of Appeals evidently determined that the fact that they had been made after indictment does not unqualifiedly extinguish their usability upon trial.
The chronological relationship of a confession to the filing of the indictment is just one ingredient of the entire set of circumstances determining whether a statement has been obtained voluntarily or involuntarily.
*89Of critical significance here, and so the Court of Appeals apparently took the pains to point out in distinguishing Downs from Spano and Di Biasi, is that in the two last-mentioned cases the defendants were surrendered voluntarily through their attorneys. In Downs, as here, “ [defendant did not surrender himself to the authorities on the advice of and in the presence of counsel but was apprehended ” (People v. Downs, supra, p. 860).
Di Biasi and Spano, in surrendering, had the right to expect that the authorities would recognize that such “ surrender was designed to assure him a prompt arraignment, with all of its consequent advantages. The defendant had a right to the effective aid and assistance of the attorney who represented him. The fact that his attorney surrendered him for such arraignment in court could not possibly be regarded as a consent or invitation to secret interrogation by police or prosecutor or a waiver of fundamental rights ” (People v. Di Biasi, supra, concurring opinion by Fuld, J., p. 552).
There is a traditional and deep-rooted convention that in such circumstances a defendant surrenders to the sanctuary of judicial process, and will not be questioned by the authorities in the absence of his lawyer. This, of course, is not a statutory right; but due process safeguards are not violated only by conduct offending against the statutes.
In People v. Spano (4 N Y 2d 256) the court expressed concern about assuming “ the responsibility of ameliorative regulation by judicial decision. Whatever reservations may be entertained as to the propriety of the procedure followed by the State here may be directed to the Legislature ” (p. 264).
When the courts extend their reach in this area, however, they sometimes do more than legislate judicially. To the extent that they stamp certain law enforcement activities as unconstitutional violations of the rights of the accused, they are also preventing the Legislature from legislating in contravention of the judicial rulings.
The judgments of conviction should be affirmed.
Valente and McNally, JJ., concur with Stevens, J.; Botein, P. J., dissents and votes to affirm in opinion, in which Bbeitel, J., concurs.
Judgments of conviction reversed, upon the law only, the facts having been considered, and a new trial ordered.