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State Confession Cases.—In its first encounter with a confession case arising from a state court, the Supreme Court set aside a conviction based solely on confessions of the defendants which had been extorted from them through repeated whippings with ropes and studded belts.268 For some thirty years thereafter the Court attempted through a consideration of the “totality of the circumstances” surrounding interrogation to determine whether a confession was “voluntary” and admissible or “coerced” and inadmissible. During this time, the Court was balancing, in Justice Frankfurter’s explication, a view that police questioning of suspects was indispensable in solving many crimes, on the one hand, with the conviction that the interrogation process is not to be used to overreach persons who stand helpless before it.269 “The ultimate test remains that which has been the only clearly established test in Anglo–American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self–determination critically impaired, the use of his confession offends due process.”270 Obviously, a court seeking to determine whether the making of a confession was voluntary operated under a severe handicap, inasmuch as the interrogation process was in secret with only police and the suspect witness to it, and inasmuch as the concept of voluntariness referred to the defendant’s mental condition.271 Despite, then, a bountiful number of cases, binding precedents were few.

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On the one hand, many of the early cases disclosed rather clear instances of coercion of a nature that the Court could little doubt produced involuntary confessions. Not only physical torture,272 but other overtly coercive tactics as well have been condemned. Chambers v. Florida273 held that five days of prolonged questioning following arrests without warrants and incommunicado detention made the subsequent confessions involuntary. Ashcraft v. Tennessee274 held inadmissible a confession obtained near the end of a 36–hour period of practically continuous questioning, under powerful electric lights, by relays of officers, experienced investigators, and highly trained lawyers. Similarly, Ward v. Texas,275 voided a conviction based on a confession obtained from a suspect who had been arrested illegally in one county and brought some 100 miles away to a county where questioning began, and who had then been questioned continuously over the course of three days while being driven from county to county and being told falsely of a danger of lynching. “Since Chambers v. State of Florida, . . . this Court has recognized that coercion can be mental as well as physical and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if demonstrations were needed, that the efficiency of the rack and thumbscrew can be matched, given the proper subject, by more sophisticated modes of ‘persuasion’. A prolonged interrogation of the accused who is ignorant of his rights and who has been cut off from the moral support of friends and relatives is not infrequently an effective technique of terror.”276

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While the Court would not hold that prolonged questioning by itself made a resultant confession involuntary,277 it did increasingly find coercion present even in intermittent questioning over a period of days of incommunicado detention.278 In Stein v. New York,279 however, the Court affirmed convictions of experienced criminals who had confessed after twelve hours of intermittent questioning over a period of thirty–two hours of incommunicado detention. While the questioning was less intensive than in the prior cases, Justice Jackson for the majority stressed that the correct approach was to balance “the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal.”280 But by the time Haynes v. Washington281 was decided, holding inadmissible a confession made by an experienced criminal because of the “unfair and inherently coercive context” in which the statement was made, it was clear that the Court was adhering to a rule which found coercion in the fact of prolonged interrogation without regard to the individual characteristics of the suspect.282 However, the age and intel[p.1327]ligence of suspects have been repeatedly cited by the Court in appropriate cases as demonstrating the particular susceptibility of the suspects to even mild coercion.283 But a suspect’s mental state alone—even insanity—is insufficient to establish involuntariness absent some coercive police activity.284

Where, however, interrogation was not so prolonged that the Court would deem it “inherently coercive,” the “totality of the circumstances” was looked to in determining admissibility. Although in some of the cases a single factor may well be thought to stand out as indicating the involuntariness of the confession,285 generally the recitation of factors, including not only the age and intelligence of the suspect but also such things as the illegality of the arrest, the incommunicado detention, the denial of requested counsel, the denial of access to friends, the employment of trickery, and other things, seemed not to rank any factor above the others.286 Of course, confessions may be induced through the exploitation of some illegal action, such as an illegal arrest287 or an unlawful search and seizure,288 and when that occurs the confession is inadmissible. Where police obtain a subsequent confession after obtaining one that is inadmissible as involuntary, the Court will not assume that the subsequent confession was similarly involuntary, but will independently evaluate whether the coercive actions which produced the first continued to produce the later confession.289

From the Voluntariness Standard to Miranda.—Invocation by the Court of a self–incrimination standard for judging the fruits of police interrogation was no unheralded novelty in Miranda v. Ar[p.1328]izona.290 The rationale of the confession cases changed over time to one closely approximating the foundation purposes the Court has attributed to the self–incrimination clause. Historically, the basis of the rule excluding coerced and involuntary confessions was their untrustworthiness, their unreliability.291 It appears that this basis informed the Court’s judgment in the early state confession cases292 as it had in earlier cases from the lower federal courts.293 But in Lisenba v. California,294 Justice Roberts drew a distinction between the confession rule and the standard of due process. “[T]he fact that the confessions have been conclusively adjudged by the decision below to be admissible under State law, notwithstanding the circumstances under which they were made, does not answer the question whether due process was lacking. The aim of the rule that a confession is inadmissible unless it was voluntarily made is to exclude false evidence. Tests are invoked to determine whether the inducement to speak was such that there is a fair risk the confession is false. . . . The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.” Over the next several years, while the Justices continued to use the terminology of voluntariness, the Court accepted at different times the different rationales of trustworthiness and constitutional fairness.295

Ultimately, however, those Justices who chose to ground the exclusionary rule on the latter consideration predominated, so that in Rogers v. Richmond296 Justice Frankfurter spoke for six other[p.1329]Justices in writing: “Our decisions under that [Fourteenth] Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charges against an accused out of his own mouth.” Nevertheless, the Justice said in another case, “[n]o single litmus–paper test for constitutionally impermissible interrogation has been evolved.”297 Three years later, however, in Malloy v. Hogan,298 in the process of applying the self–incrimination clause to the States, Justice Brennan for the Court reinterpreted the line of cases since Brown v. Mississippi299 to conclude that the Court had initially based its rulings on the common–law confession rationale, but that beginning with Lisenba v. California,300 a “federal standard” had been developed. The Court had engaged in a “shift [which] reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay.” Today, continued Justice Brennan, “the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897,” when Bram v. United States had announced that the self–incrimination clause furnished the basis for admitting or excluding evidence in federal courts.301

One week after the decision in Malloy v. Hogan, the Court essayed to define the rules of admissibility of confessions in different terms than its previous case; while it continued to emphasize voluntariness, it did so in self–incrimination terms rather than in due process terms. In Escobedo v. Illinois,302 it held inadmissible the confession obtained from a suspect in custody who had repeatedly requested and had repeatedly been refused an opportunity to con[p.1330]sult with his retained counsel, who was present at the police station seeking to gain access to Escobedo.303 While Escobedo appeared in the main to be a Sixth Amendment right–to–counsel case, the Court at several points emphasized, in terms that clearly implicated self–incrimination considerations, that the suspect had not been warned of his constitutional rights.304


Footnotes

268 Brown v. Mississippi, 297 U.S. 278 (1936) . “[T]he question of the right of the State to withdraw the privilege against self– incrimination is not here involved. The compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter. . . . It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.” Id. at 285, 286.
269 Culombe v. Connecticut, 367 U.S. 568, 570–602 (1961) (announcing judgment of the Court).
270 Id. at 602.
271 “The inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three– phased process. First, there is the business of finding the crude historical facts, the external ‘phenomenological’ occurrences and events surrounding the confession. Second, because the concept of ‘voluntariness’ is one which concerns a mental state, there is the imaginative recreation, largely inferential, of internal, ‘psychological’ fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances.” Id. at 603. See Developments in the Law—Confessions, 79 Harv. L. Rev. 935, 973–82 (1966).
272 Brown v. Mississippi, 297 U.S. 278 (1936) .
273 309 U.S. 227 (1940) .
274 322 U.S. 143 (1944) . Dissenting, Justices Jackson, Frankfurter, and Roberts protested that “interrogation per se is not, while violence per se is, an outlaw.” A confession made after interrogation was not truly “voluntary” because all questioning is “inherently coercive,” because it puts pressure upon a suspect to talk. Thus, in evaluating a confession made after interrogation, the Court must, they insisted, determine whether the suspect was in possession of his own will and self–control and not look alone to the length or intensity of the interrogation. They accused the majority of “read[ing] an indiscriminating hostility to mere interrogation into the Constitution” and preparing to bar all confessions made after questioning. Id. at 156. A possible result of the dissent was the decision in Lyons v. Oklahoma, 322 U.S. 596 (1944) , which stressed deference to state–court factfinding in assessing the voluntariness of confessions.
275 316 U.S. 547 (1942) . See also Canty v. Alabama, 309 U.S. 629 (1940) ; White v. Texas, 310 U.S. 530 (1940) ; Lomax v. Texas, 313 U.S. 544 (1941) ; Vernon v. Alabama, 313 U.S. 540 (1941) .
276 Blackburn v. Alabama, 361 U.S. 199, 206 (1960) .
277 Lisenba v. California, 314 U.S. 219 (1941) .
278 Watts v. Indiana, 338 U.S. 49 (1949) (Suspect held incommunicado without arraignment for seven days without being advised of his rights. He was held in solitary confinement in a cell with no place to sleep but the floor and questioned each day except Sunday by relays of police officers for periods ranging in duration from three to nine–and–one–half hours); Turner v. Pennsylvania, 338 U.S. 62 (1949) (suspect held on suspicion for five days without arraignment and without being advised of his rights. He was questioned by relays of officers for periods briefer than in Watts during both days and nights); Harris v. South Carolina, 338 U.S. 68 (1949) (Suspect in murder case arrested in Tennessee on theft warrant, taken to South Carolina, and held incommunicado. He was questioned for three days for periods as long as 12 hours, not advised of his rights, not told of the murder charge, and denied access to friends and family while being told his mother might be arrested for theft). Justice Jackson dissented in the latter two cases, willing to hold that a confession obtained under lengthy and intensive interrogation should be admitted short of a showing of violence or threats of it and especially if the truthfulness of the confession may be corroborated by independent means. Id. at 57.
279 346 U.S. 156 (1953) .
280 Id. at 185.
281 373 U.S. 503 (1963) (confession obtained some 16 hours after arrest but interrogation over this period consumed little more than two hours; he was refused in his requests to call his wife and told that his cooperation was necessary before he could communicate with his family).
282 Id. at 514. See also Spano v. New York, 360 U.S. 315 (1959) . (After eight hours of almost continuous questioning, suspect was induced to confess by rookie policeman who was a childhood friend and who played on suspect’s sympathies by falsely stating that his job as a policeman and the welfare of his family was at stake); Rogers v. Richmond, 365 U.S. 534 (1961) (suspect resisted questioning for six hours but yielded when officers threatened to bring his invalid wife to headquarters). More recent cases include Davis v. North Carolina, 384 U.S. 737 (1966) (escaped convict held incommunicado 16 days but periods of interrogation each day were about an hour each); Greenwald v. Wisconsin, 390 U.S. 519 (1968) ; Darwin v. Connecticut, 391 U.S. 346 (1968) .
283 Gallegos v. Colorado, 370 U.S. 49 (1962) ; Blackburn v. Alabama, 361 U.S. 199 (1960) ; Fikes v. Alabama, 352 U.S. 191 (1957) ; Payne v. Arkansas, 356 U.S. 560 (1958) ; Reck v. Pate, 367 U.S. 433 (1961) ; Culombe v. Connecticut, 367 U.S. 568 (1961) . The suspect in Spano v. New York, 360 U.S. 315 (1959) , was a 25–year–old foreigner with a history of emotional instability. The fact that the suspect was a woman was apparently significant in Lynumn v. Illinois, 372 U.S. 528 (1963) , in which officers threatened to have her children taken from her and to have her taken off the welfare relief rolls.
284 Colorado v. Connelly, 479 U.S. 157 (1986) .
285 E.g., Leyra v. Denno, 347 U.S. 556 (1954) (confession obtained by psychiatrist trained in hypnosis from a physically and emotionally exhausted suspect who had already been subjected to three days of interrogation); Townsend v. Sain, 372 U.S. 293 (1963) (suspect was administered drug with properties of “truth serum” to relieve withdrawal pains of narcotics addiction, although police probably were not aware of drug’s side effects).
286 E.g., Johnson v. New Jersey, 384 U.S. 719 (1966) ; Davis v. North Carolina, 384 U.S. 737 (1966) ; Ashdown v. Utah, 357 U.S. 426 (1958) ; Thomas v. Arizona, 356 U.S. 390 (1958) .
287 Wong Sun v. United States, 371 U.S. 471 (1963) .
288 Fahy v. Connecticut, 375 U.S. 85 (1963) .
289 United States v. Bayer, 331 U.S. 532 (1947) ; Lyons v. Oklahoma, 322 U.S. 596 (1944) ; Leyra v. Denno, 347 U.S. 556 (1954) ; Darwin v. Connecticut, 391 U.S. 346 (1968) .
290 384 U.S. 436 (1966) .
291 3 J. Wigmore, A Treatise on the Anglo–American System of Evidence Sec. 882, at 246 (3d ed. 1940).
292 Brown v. Mississippi, 297 U.S. 278 (1936) ; Chambers v. Florida, 309 U.S. 227 (1940) ; White v. Texas, 310 U.S. 530 (1940) .
293 Hopt v. Utah, 110 U.S. 574 (1884) ; Wilson v. United States, 162 U.S. 613 (1896) .
294 314 U.S. 219, 236 (1941) .
295 Compare Ashcraft v. Tennessee, 322 U.S. 143 (1944) , with Lyons v. Oklahoma, 322 U.S. 596 (1944) , and Malinski v. New York, 324 U.S. 401 (1945) . In Watts v. Indiana, 338 U.S. 49 (1949) , Harris v. South Carolina, 338 U.S. 68 (1949) , and Turner v. Pennsylvania, 338 U.S. 62 (1949) , five Justices followed the due process–fairness standard while four adhered to a trustworthiness rationale. See id. at 57 (Justice Jackson concurring and dissenting). In Stein v. New York, 346 U.S. 156, 192 (1953) , the trustworthiness rationale had secured the adherence of six Justices. The primary difference between the two standards is the admissibility under the trustworthiness standard of a coerced confession if its trustworthiness can be established, if, that is, it can be corroborated.
296 365 U.S 534, 540–41 (1961). Similar expressions may be found in Spano v. New York, 360 U.S. 315 (1959) , and Blackburn v. Alabama, 361 U.S. 199 (1960) . See also Culombe v. Connecticut, 367 U.S. 568, 583 n.25 (1961) , in which Justice Frankfurter, announcing the judgment of the Court, observed that “the conceptions underlying the rule excluding coerced confessions and the privilege again self– incrimination have become, to some extent, assimilated.”
297 Culombe v. Connecticut, 367 U.S. 568, 601 (1961) . The same thought informs the options of the Court in Haynes v. Washington, 373 U.S. 503 (1963) .
298 378 U.S. 1 (1964) .
299 297 U.S. 278 (1936) .
300 314 U.S. 219 (1941) .
301 Malloy v. Hogan, 378 U.S. 1, 6–7 (1964) . Protesting that this was “post facto reasoning at best,” Justice Harlan contended that the “majority is simply wrong” in asserting that any of the state confession cases represented anything like a self–incrimination basis for the conclusions advanced. Id. at 17–19. Bram v. United States, 168 U.S. 532 (1897) , is discussed supra, p.1321.
302 378 U.S. 478 (1964) . Joining Justice Goldberg in the majority were Chief Justice Warren and Justices Black, Douglas, and Brennan. Justices Clark, Harlan, Stewart, and White dissented. Id. at 492, 493, 495.
303 Previously, it had been held that a denial of a request to consult counsel was but one of the factors to be considered in assessing voluntariness. Crooker v. California, 357 U.S. 433 (1958) ; Cicenia v. Lagay, 357 U.S. 504 (1958) . Chief Justice Warren and Justices Black, Douglas, and Brennan were prepared in these cases to impose a requirement of right to counsel per se. Post–indictment interrogation without the presence of counsel seemed doomed after Spano v. New York, 360 U.S. 315 (1959) , and this was confirmed in Massiah v. United States, 377S 201 (1964). See discussion under Sixth Amendment, infra.
304 Escobedo v. Illinois, 378 U.S. 478, 485, 491 (1964) (both pages containing assertions of the suspect’s “absolute right to remain silent” in the context of police warnings prior to interrogation).
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