Sources of the Voluntariness Rule

Sources of the Voluntariness Rule

The rules on coerced confessions all grow from one premise. When the government charges a person with a crime, it must prove the charge with evidence it gathered lawfully, and it may not build its case out of the accused's own words by forcing them out of him. A legal system that works this way is called accusatorial, because the state carries the burden of establishing guilt through its own independent proof. A system that proves guilt by pressing the accused to supply the evidence is called inquisitorial. The difference matters most in the interrogation room, where no judge or jury is watching. If statements wrung from a suspect could be used against him, the cheapest route to a conviction would run through pressure on the suspect, and officers would have every reason to take it. Excluding the product of coercion removes that reason, because a statement that cannot be used at trial is worth nothing to the officer who extracted it.

The Constitution gives this premise two textual homes, and both appear in the Fifth Amendment. One clause provides that no person shall be "compelled in any criminal case to be a witness against himself," and another forbids depriving anyone of life, liberty, or property "without due process of law."¹ The due process guarantee asks whether the way the state obtained a statement was fair enough to support a conviction. The Self-Incrimination Clause asks whether the person was compelled to give testimony against himself. The two provisions approach the same confession from different directions, and in the confession cases that follow they arrive at the same result. The Fourteenth Amendment's Due Process Clause extends the first inquiry to the states and makes a confession admissible only if it was voluntary.² Both guarantees restrain the government, and that shared target explains a limit this chapter reaches later: under the Fourteenth Amendment, only official compulsion by the state makes a confession involuntary.³ The next subsection begins with the due process route.

Due Process Foundation

The Fourteenth Amendment's Due Process Clause was the first constitutional ground on which the Supreme Court excluded coerced confessions from state trials, and the case that established it involved plain physical torture. In Brown v. Mississippi, decided in 1936, police officers extracted confessions from the accused through brutal torture, and the Court held that convictions built on those confessions violated due process.⁴ Aside from the confessions there was no evidence sufficient to send the case to the jury, and the defendants testified at trial that the statements were false and had been obtained by physical torture.⁵ The Court called the methods “revolting to the sense of justice.”⁶ Brown is best read as the origin of the rule; the weighing test that courts apply today was refined in the cases that followed it.⁷

The Court turned to due process because the more obvious provision was unavailable. When Brown was decided, the Fifth Amendment privilege against compulsory self-incrimination did not apply to the states, so it could not be the ground of decision.⁸ Due process offered a different kind of limit, one on how a state may go about securing a conviction. A state may arrange its procedures as it chooses, the Court reasoned, but it may not substitute trial by ordeal, and “[t]he rack and torture chamber may not be substituted for the witness stand.”⁹ A year later, Palko v. Connecticut explained that the privilege itself was not among the rights carried to the states, yet added that protection against torture, physical or mental, would remain, and it cited Brown for the point.¹⁰ The due process rule therefore guards a floor of fairness in how the state obtains a statement, whatever becomes of the broader privilege. Until Malloy v. Hogan applied the privilege to the states in 1964, that floor did nearly all of the work: for roughly the middle third of the twentieth century the rule against admitting coerced confessions rested primarily on due process, and the Court applied the voluntariness test in some thirty cases between Brown and Escobedo v. Illinois.¹¹

Malloy did not retire the due process line. After holding that the privilege applies to the states, the Court kept its due process focus, and it has since said that it never abandoned that body of law and continues to exclude confessions obtained involuntarily.¹² What unites the cases decided in the fifty years after Brown is the crucial element of police overreaching: each confession case turned on its own set of factors, but every one contained a substantial element of coercive police conduct.¹³ That pattern is the source of the causal limit the Court stated in Colorado v. Connelly, that absent police conduct causally related to the confession there is no basis for finding that a state actor has deprived the defendant of due process.¹⁴

The facts of Connelly show what the absence of that element looks like. The defendant approached a Denver police officer on his own and said he had killed someone and wanted to talk about it, and a psychiatrist later testified that he was a chronic schizophrenic whose psychosis motivated the confession and left him unable to make a free and intelligent decision to confess.¹⁵ The Colorado courts treated the statements as involuntary, but the Court rejected that conclusion, holding that a defendant's mental condition by itself, apart from its relation to official coercion, does not dispose of the due process inquiry.¹⁶ Set beside Brown, the two cases differ in the one respect that matters. In both, the confession may have come from a person who was not acting freely, but in Brown officers produced the condition by torture, while in Connelly no officer did anything that caused the confession. The police coercion section later in this chapter develops that limit in full; for now it is enough to see that it follows from the way the due process route was built.

Brutality is not the only conduct the due process route reaches. The Court has said that certain interrogation techniques, whether used in isolation or applied to the unique characteristics of a particular suspect, are “so offensive to a civilized system of justice that they must be condemned.”¹⁷ That sentence describes two kinds of condemned conduct. Some techniques are unacceptable in themselves, and a credible threat of violence is enough to coerce even where no blow is struck, as the Court held in Arizona v. Fulminante.¹⁸ Others are condemned because of how they bear on a particular suspect, which is why the weighing test taught next examines the person as well as the method. The first step beyond beatings came in Ashcraft v. Tennessee, where relays of officials questioned the defendant incommunicado for thirty-six hours without sleep, and the confession was held involuntary because the interrogation was inherently coercive.¹⁹ As methods grew more sophisticated, Spano v. New York observed, the duty to enforce constitutional protections did not lapse; it simply required more delicate judgments.²⁰

Society's objection to involuntary confessions has two roots, and the due process cases rest on both. The older root is reliability. English and then American courts excluded confessions obtained by threats and promises because such statements are inherently untrustworthy.²¹ A person who talks to stop pain or win release may say what the questioner wants rather than what happened, which is what the defendants in Brown said about their own statements. The second root concerns the police. Spano states that the abhorrence of involuntary confessions turns on more than their inherent untrustworthiness: it also reflects the deep-rooted feeling that police must obey the law while enforcing it, since life and liberty can be endangered as much by illegal methods used to convict suspected criminals as by the criminals themselves.²² If the rule guarded only reliability, officers could coerce a statement from a person who really did commit the crime and use it whenever the details checked out, so coercion would pay whenever it happened to produce the truth. Making police methods an independent ground for exclusion removes that payoff. Jackson v. Denno accordingly called it axiomatic that a defendant is deprived of due process if a conviction rests in whole or in part on an involuntary confession “without regard for the truth or falsity of the confession.”²³

The consequence is that the truth of a confession does not decide its admissibility under due process.

Reliability does not vanish from the second case; it moves to the jury. Even after a judge finds a confession voluntary and admits it, the defendant may argue to the jury that the circumstances in which it was obtained make it unreliable.²⁴ On an exam stem, the trap is reasoning from whether the confession is true. Corroboration cannot rescue a statement that police coercion produced, and doubts about accuracy cannot exclude a statement that no state actor pressured. The question to ask is whether official coercion produced the statement.

Three purposes are usually given for the rule: the unreliability of coerced statements, the likelihood that more coercion occurred where some is shown, and the regulation of police practice.²⁵ The first purpose speaks to the confession itself, and the other two speak to the police. The second has a functional logic of its own, because interrogation has traditionally taken place behind station-house doors, so a court cannot measure how far the pressure went and treats proof of some coercion as a sign of more.²⁶ A concurring opinion in Stone v. Powell described the exclusion of coerced custodial admissions as resting essentially on their lack of reliability, a description that captures the first purpose alone.²⁷ The rule also does not bar every statement obtained through some illegality. A dissent in Mapp v. Ohio, quoting Lisenba v. California, stressed that illegal acts committed in obtaining a confession do not by themselves answer the constitutional question, because the complaint is the unfairness of using the confession at trial.²⁸

Fifth Amendment Privilege

The second constitutional source of the voluntariness requirement is the Fifth Amendment's command that no person "shall be compelled in any criminal case to be a witness against himself."³⁰ Federal courts applied that clause to confessions first, and the sequence shows how the doctrine developed. In Hopt v. Territory of Utah (1884) the Court said a confession should not go to the jury unless the judge found it voluntary, but it rested that rule on English common law and the unreliability of involuntary statements rather than on the Constitution.³¹ Bram v. United States (1897) then became the first decision to find that involuntary confessions violate the privilege against self-incrimination.³² Bram held that in federal criminal trials, whenever the question is whether a confession is inadmissible because it was not voluntary, the Self-Incrimination Clause controls the answer.³³ That holding has set the federal standard since 1897, and the rest of this subsection follows it into the state courts.

The clause speaks of being a "witness," which suggests formal testimony in a courtroom, so it is fair to ask why it governs what a suspect said to detectives. The answer appears in Wan v. United States, where a unanimous Court reversed a conviction resting on a compelled confession. It explained that a confession obtained by compulsion must be excluded whatever the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise.³⁴ The link is that the clause forbids forcing a person to supply evidence against himself. A statement extracted by pressure and then offered at trial does exactly that, however far from the courtroom the pressure was applied. The Court has made the same connection in a related setting, observing that a coerced confession is excluded in part because it is compelled incrimination in violation of the privilege.³⁵

For the states, the privilege arrived late. When Brown v. Mississippi was decided, the Court took care to say that its conclusion did not involve the privilege, because the governing precedent in Twining v. New Jersey left the states free of that guarantee.³⁶ Palko v. Connecticut, still reflecting the pre-Malloy view, likewise treated the exemption as one a state could end, while adding that protection against torture would remain.³⁷ Malloy v. Hogan overturned that position in 1964 by holding that the Self-Incrimination Clause is incorporated in the Due Process Clause of the Fourteenth Amendment and so applies to the states.³⁸ Incorporation means that the Fourteenth Amendment's guarantee against state deprivations of liberty without due process is read to include this specific protection, so a state must honor the privilege just as the federal government must. Malloy put the result this way: the Fourteenth Amendment secures against state invasion the same privilege the Fifth Amendment guarantees against federal infringement.³⁹ The privilege also has the same scope in state and federal proceedings, because the same substantive guarantee is involved.⁴⁰

The two routes now converge, and neither displaced the other. Dickerson v. United States summarized the position by noting that the cases recognize two constitutional bases for the voluntariness requirement, the Fifth Amendment privilege and the Fourteenth Amendment's Due Process Clause.⁴¹ Justice Stevens, dissenting in Chavez v. Martinez, drew the practical conclusion that official imposition of severe pain or pressure for purposes of interrogation is forbidden whichever protection is invoked.⁴² The consequence for a state prosecution is that the admissibility of a confession is tested by the same standard that has applied in federal prosecutions since Bram.⁴³

That standard asks whether the confession was free and voluntary. Bram's formulation says a confession must not be extracted by any sort of threats or violence, nor obtained by direct or implied promises, nor by the exertion of any improper influence. Under this test the constitutional inquiry is whether the confession was freely given, and the shocking character of the officers' conduct is not the measure.⁴⁴ The test is shaped this way because of what the privilege protects: a person's right to remain silent unless he chooses to speak in the unfettered exercise of his own will. It also rests on the premise that the American system of prosecution is accusatorial, so governments must establish guilt by evidence independently and freely secured and may not prove a charge out of the accused's own mouth by coercion.⁴⁵ If the line were drawn at brutality, protection would end wherever the officers' methods began to look civilized, even though a threat to a suspect's family or a well-aimed promise can dislodge a decision to stay silent as surely as a blow can. A standard measured by the effect on the suspect's choice covers every such method, and it gives officers no reason to hunt for pressure that merely looks mild, because mild pressure that works is still compulsion.

Bram's own wording invites an overreading. Taken literally, a confession "obtained by any direct or implied promises, however slight" would be involuntary whenever a promise was a but-for cause of the statement.⁴⁶ Arizona v. Fulminante rejected that reading, noting that the passage under current precedent does not state the standard for determining voluntariness.⁴⁷ The role of a promise is weighed within the totality of the circumstances, and the promise must have been compelling enough to overbear the suspect's will in light of those circumstances.⁴⁸ Some inducements are strong enough by their nature to be presumed coercive absent circumstances pointing the other way. Rogers v. Richmond involved a threat to take the defendant's wife into custody, and Lynumn v. Illinois involved a warning that the defendant could lose her welfare payments and the custody of her children unless she cooperated.⁴⁹ Merely promising to bring a suspect's cooperation to the prosecutor's attention is not objectionable, so exam answers go wrong when they treat any promise as automatically disqualifying.⁵⁰

Lower courts still recite Bram's language and then apply the totality test. In a 2011 bank-robbery prosecution, United States v. White, a federal district court quoted the "however slight" formulation and then decided the suppression motion on all the circumstances.⁵¹ It found the statements voluntary: the defendant was 43 and had been arrested many times, showed no sign of impairment, was questioned for under two hours, and faced no threats or physical coercion.⁵² Custody added nothing to that picture by itself, which matches the rule in Wan that a confession may be voluntary even though it was made to police officers, in custody, in answer to their examination.⁵³

How little pressure can suffice appears in Haynes v. Washington. There the Court held inadmissible a confession secured, under the circumstances of that case, by refusing to let the suspect call his wife until he confessed, which Malloy described as so mild a whip.⁵⁴ Nobody was beaten, and the leverage was nothing more than access to family held out as the price of talking. Wan supplies the contrasting pole, in which custody and questioning alone leave the statement voluntary.

The fact that moves the answer is whether officers used leverage to produce the statement. Whether a given pressure is enough still depends on the weighing of all the circumstances, which the next section develops, but the privilege's standard registers pressure that falls well short of violence.