John Marshall Harlan II

“ Finally, it is said that the overruling of Wolf is supported by the established doctrine that the admission in evidence of an involuntary confession renders a state conviction constitutionally invalid. Since such a confession may often be entirely reliable, and therefore of the greatest relevance to the issue of the trial, the argument continues, this doctrine is ample warrant in precedent that the way evidence was obtained, and not just its relevance, is constitutionally significant to the fairness of a trial. ”

“ The unwisdom of overruling Wolf without full-dress argument [p677] is aggravated by the circumstance that that decision is a comparatively recent one (1949) to which three members of the present majority have at one time or other expressly subscribed, one, to be sure, with explicit misgivings. [9] I would think that our obligation to the States, on whom we impose this new rule, as well as the obligation of orderly adherence to our own processes would demand that we seek that aid which adequate briefing and argument lends to the determination of an important issue. ”

“ The preservation of a proper balance between state and federal responsibility in the administration of criminal justice demands patience on the part of those who might like to see things move faster among the States in this respect. Problems of criminal law enforcement vary [p681] widely from State to State. One State, in considering the totality of its legal picture, may conclude that the need for embracing the Weeks rule is pressing because other remedies are unavailable or inadequate to secure compliance with the substantive Constitutional principle involved. ”

“ It may be assumed [that the] treatment of the petitioner [by the police] . . . deprived him of his liberty without due process, and that the petitioner would have been afforded preventive relief if he could have gained access to a court to seek it. But illegal acts, as such, committed in the course of obtaining a confession . . . do not furnish an answer to the constitutional question we must decide. . . . The gravamen of his complaint is the unfairness of the use of his confessions, and what occurred in their procurement is relevant only as it bears on that issue. ”

“ The action of the Court finds no support in the rule that decision of Constitutional issues should be avoided wherever possible. For, in overruling Wolf, the Court, instead of passing upon the validity of Ohio's § 2905.34, has simply chosen between two Constitutional questions. ”

“ Wolf held that the "privacy" assured against federal action by the Fourth Amendment is also protected against state action by the Fourteenth Amendment, and (3) it is therefore "logically and constitutionally necessary" that the Weeks exclusionary rule should also be enforced against the States. ”

“ The "coerced confession" rule is certainly not a rule that any illegally obtained statements may not be used in evidence. I would suppose that a statement which is procured during [p684] a period of illegal detention, McNabb v. United States, 318 U.S. 332, is, as much as unlawfully seized evidence, illegally obtained, but this Court has consistently refused to reverse state convictions resting on the use of such statements. Indeed, it would seem the Court laid at rest the very argument now made by the majority when, in Lisenba v. ”

“ Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby the accused was interrogated in secret for hours on end. ”

“ IV, § 2, the State Supreme Court was compelled to uphold the constitutionality of § 2905.34 despite the fact that four of its seven judges thought the statute offensive to the Fourteenth Amendment.↑ . Respecting the "substantiality" of the federal questions tendered by this appeal, appellant's Jurisdictional Statement contained the following: ↑ . The appellant's brief did not urge the overruling of Wolf. ”