(dissenting).
As I read Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 171, 93 L.Ed. 100, I am convinced that it does not require the result here reached, and that what we are about to do is to extend the doctrine of that case beyond its intended dr proper boundaries.
The language of the Upshaw case, expounding the McNabb case, is that the confessions were there rejected because the defendants were questioned "while held in ‘plain disregard of the duty enjoined by Congress upon Federal officers’ promptly to take them before a judicial officer”, and that the McNabb confessions were "induced by illegal detention”. The confessions in the Mitchell case, United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, were distinguished because made “'before any illegal detention had occurred.” Upshaw’s confession was held to have been given while he was “illegally detained for at least thirty hours for the very purpose ■of securing these challenged confessions.” Therefore, it was said, the confessions were “ ‘the fruits of wrongdoing’ by the police.”
The plain fact here is that when Carignan gave his confession he was not being held in disregard of any duty on the police officers. There was no “illegal detention”. He was being lawfully held after commitment upon a charge of attempted rape. The confession was not “the fruit of wrongdoing” by anyone.
Yet this confession which the majority of us are agreed was entirely voluntary, and given by Carignan when he was not only under neither physical nor psychological pressure, but in fact being treated with kindly consideration1 may never be used as evidence because of the argument that had Carignan been brought before a magistrate upon a new charge, and then for a second time being informed of his right to retain counsel, he might then have asked for counsel when charged with this, more serious, offense. The questioning officer is criticised for the “faintness” of 'his warning that Carignan was entitled to counsel. It is said that upon a second commitment, the magistrate’s reiteration of his right to counsel would have given him more emphatic warning of this right.
Now if it be conceded, as is done by Judge ITealy, that a prisoner lawfully in confinement is not immune to gentle questioning, this whole thing comes pretty close to holding that a confession cannot be taken in the absence of the accused’s lawyer.
It is not too easy to think clearly on these matters when dealing with the case of one sentenced to death. But if we move from this agitated field of homicide to the comparatively quiet area of, say, robbery, we can more calmly survey the problem, which, after all, is no more than a search for a means ff> ascertainment of the truth. Assume a case in which the police have *963been confronted with a dozen holdups of branch stores, where the circumstances disclose similarities in the manner of commission of these crimes. The police discover probable cause for charging the accused with one of the robberies, and he is so charged, bound over and committed. While thus being held, the accused makes a statement admitting commission of all the others.
Certainly my associates would not say that the statement would be inadmissible because of the want of eleven more commitments, as such. What I understand them to be saying is that the commitments are required in order to bring home to> the accused, eleven more times, his right to counsel. What I think they have done is to make a new rule relating to confessions. They have, in effect, lifted out of context the requirement that an accused, upon trial, shall “have the Assistance of Counsel for his defense”, unless “there is an intelligent and competent waiver [of this right to counsel] by the accused.” Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461. I think that until now it has never been held that such a requirement be a prerequisite to the admissibility of a confession. As a practical matter, this would do much to dry up confessions as a means of getting at the facts in criminal cases, for as we know, “any lawyer worth his salt will tell the suspect in no' uncertain terms to make no statement to police under' any circumstances.”2 I think if there is to be any such drastic departure from previous notions as to the law, it should be accomplished by Congress, rather than by the courts.
I think we are all agreed that the continued and growing insistence of the courts upon strict adherence to the rules established for the protection of defendants accused of crime has had a salutary effect upon the administration of justice. For one thing, it has required more careful and thorough preparation and presentation of their cases by prosecutors, and the decisions relating to confessions have put the 'police on their toes to procure other evidence and to rely less upon the easier process of exacting confessions.
But where a confession “rings true”, as docs this one, where in all the circumstances of its giving there is no single thing which suggests that it might be untrustworthy, the prosecutor, as the representative of the public interest, is entitled to have the confession before the jury, and the court cannot shirk its share of duty in the search for truth by rejecting it where no reason for distrust exists.
The only sound reason for excluding certain confessions is that stated by Chief Justice Shaw in Commonwealth v. Morey, 1 Gray, Mass., 461, 462, as follows: “The ground on which confessions made by a party accused, under promises of favor or threats of injury, are excluded as incompetent is, not because any wrong is done to the accused in using them, but because he may be induced, by the pressure of hope or fear, to admit facts unfavorable to him without regard to their truth, in order to obtain the promised relief or avoid the threatened danger, and therefore admissions so obtained have no just and legitimate tendency to prove the facts admitted.”
Hence confessions obtained by the “third degree”, by prolonged and exhausting interrogations, by various forms of psychological pressure, are suspect, for as Mr. Wigmore says, (§ 822) it may be that “the untrue acknowledgment of guilt is at the time the more promising of two alternatives.” The same may be true where the confession is made “during illegal detention”, especially where such detention was “for the very purpose of securing [the] challenged confessions.”
The logic of those rules, cannot, in my opinion, be extended to this case. That no attorney attended Carignan’s confession, *964or that the officer did not more emphatically bring the hiring of an attorney to his attention does not throw doubt upon the confession or suggest any reason for suspecting an untrue acknowledgment of guilt.
One who deprives a litigant of the testimony of a witness by threats or intimidations such that the witness refuses to testify, is guilty of an offense under Title 18, § 1503, relating to "Obstruction of Justice”. I think that before we say that the United States may never use this confession as evidence we should take great care lest, for too unsubstantial reasons, we 'also obstruct justice, not only in this, but in other cases to follow.
. Mr. Justice Jackson, concurring in result, in Watts v. Indiana, 338 U.S. 49, at p. 59, 69 S.Ct. 1347, 1357, 1358, 93 L.Ed. 1801. The statement quoted in the opinion from the dissent of Mr. Justice Reed in the Upshaw case, is no more than an expression of the same idea. I am unable to see how this extract from the dissenting opinion aids this court’s construction of the majority opinion in Upshaw.