Arthur Goldberg

“ A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law. ”

“ It is undisputed that, during the course of the interrogation, Officer Montejano, who "grew up" in petitioner's neighborhood, who knew his family, and who uses "Spanish language in [his] police work," conferred alone with petitioner "for about a quarter of an hour. . . ." Petitioner testified that the officer said to him "in Spanish that my sister and I could go home if I pinned it on Benedict DiGerlando," that
"he would see to it that we would go home and be held only as witnesses, if anything, if we had made a statement against DiGerlando . . . that we would be able to go home that night." ”

“ Report of Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice (1963) , 10-11:
"The survival of our system of criminal justice and the values which it advances depends upon a constant, searching, and creative questioning of official decisions and assertions of authority at all stages of the process. . . . Persons [denied access to counsel] are incapable of providing the challenges that are indispensable to satisfactory operation of the system. The loss to the interests of accused individuals, occasioned by these failures, are great and apparent. ”

“ We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement
Page 378 U. S. 489
which comes to depend on the "confession" will, in the long run, be less reliable [Footnote 11] and more subject to abuses [Footnote 12] than a system which depends on extrinsic evidence independently secured through skillful investigation. As Dean Wigmore so wisely said:
" [A] ny system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. ”

“ The English Judges' Rules also recognize that a functional, rather than a formal, test must be applied, and that, under circumstances such as those here, no special significance should be attached to formal indictment. The applicable Rule does not permit the police to question an accused, except in certain extremely limited situations not relevant here, at any time after the defendant "has been charged or informed that he my be prosecuted." ”

“ Petitioner testified that this ambiguous gesture "could have meant most anything," but that he "took it upon [his] own to think that [the lawyer was telling him] not to say anything," and that the lawyer "wanted to talk" to him.
[Footnote 2]
The statute then in effect provided in pertinent part that:
"All public officers . . . having the custody of any person . . . restrained of his liberty for any alleged cause whatever, shall, except in cases of imminent danger of escape, admit any practicing attorney . . . whom such person . . . may desire to see or consult. . . ." ”

“ Nothing we have said today affects the powers of the police to investigate "an unsolved crime," Spano v. New York, 360 U. S. 315, 360 U. S. 327 (STEWART, J., concurring) , by gathering information from witnesses and by other "proper investigative efforts." Haynes v. Washington, 373 U. S. 503, 373 U. S. 519. We hold only that, when the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer. ”

“ They can't escape the noose. There is nothing that counsel can do for them at the trial.'"
Ex parte Sullivan, 107 F.Supp. 514, 517-518.
It is argued that, if the right to counsel is afforded prior to indictment, the number of confessions obtained by the police will diminish significantly, because most confessions are obtained during the period between arrest and indictment, [Footnote 10] and "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances." ”

“ On the night of January 19, 1960, petitioner's brother-in-law was fatally shot. In the early hours of the next morning, at 2:30 a.m., petitioner was arrested without a warrant and interrogated. Petitioner made no statement to the police, and was released at 5 that afternoon pursuant to a state court writ of habeas corpus obtained by Mr. Warren Wolfson, a lawyer who had been retained by petitioner.
On January 30, Benedict DiGerlando, who was then in police custody and who was later indicted for the murder along with petitioner, told the police that petitioner had fired the fatal shots. ”

“ The Soviet criminal code does not permit a lawyer to be present during the investigation. The Soviet trial has thus been aptly described as "an appeal from the pretrial investigation." Feifer, Justice in Moscow (1964) , 86.
[Footnote 10]
See Barrett, Police Practices and the Law — From Arrest to Release or Charge, 50 Cal.L.Rev. 11, 43 (1962) . ”

“ He said I couldn't see him because they hadn't completed questioning. . . . [F] or a second or two, I spotted him in an office in the Homicide Bureau. The door was open, and I could see through the office. . . . ”