Confessions and the Court

Confessions and the Court

Description

In a series of cases beginning in 1936, the Supreme Court held that the admission in a state criminal trial of an “involuntary” confession violates due process. The early cases required exclusion of such confessions primarily (and perhaps exclusively) because of their unreliability, but as the course of adjudication proceeded, it became clear that confessions would be held “involuntary” and hence inadmissible, even when their reliability was clearly established. Indeed in 1961, in Rogers v. Richmond, the Supreme Court held that a court assessing a voluntariness claim could not even consider the fact that the police tactics would not tend to produce a false confession. The Court did not, however, get very far in its efforts to articulate precisely what factors did render a confession involuntary or what policies supported the exclusion of involuntary confessions. The opinions condemned “overbearing the will,” as revealed by “the totality of the circumstances.” They justified the condemnation as a response to “fundamental unfairness” or because “ours is . . . not an inquisitorial system.” There was virtually nothing more to go on. In 1961, Justice Frankfurter, in an ambitious attempt to lay bare the fundamentals, identified two competing policies: first, that “questioning suspects is indispensable to law enforcement” and thus “whatever reasonable means are needed to make the questioning effective must be conceded to the police”; but second, that “the terrible engine of the criminal law is not to be used to overreach individuals who stand helpless against it. . . . [M]en are not to be exploited for the information necessary to condemn them. . . . He described the voluntariness test as an effort to strike a balance between these two opposite “poles.” Adding up the diverse strands of criticism developed by [Yale] Kamisar and others, one finds roughly six defects in the due process voluntariness test: 1. The standard left police without needed guidance. Because of its vagueness and its insistence on assessing “the totality of the circumstances,” the voluntariness standard gave no guidance to police officers seeking to ascertain what questioning tactics they could use. Indeed, at the critical point when the police sensed that a suspect was about to “crack,” they were enjoined to be on guard against both “overbearing the will” and losing their chance by lessening the tension or pressure; in many common situations the message of the due process test was not just vague but inherently contradictory. Under these circumstances, moreover, exclusion of improperly obtained confessions was an unsatisfactory remedy: the defendant's physical or psychological injury was not redressed, the exclusion did virtually nothing to deter similar police abuses in the future, and society lost the benefit of a statement that might have been obtained anyway had the police been forewarned to avoid the tactics eventually ruled improper. 2. The standard impaired the effectiveness and the legitimacy of judicial review. The vagueness of the voluntariness test spawned several interrelated difficulties for the courts. Not only were conscientious trial judges left without guidance for resolving confession claims but they were virtually invited to give weight to their subjective preferences when performing the elusive task of balancing. Judges unsympathetic to constitutional values, or concerned about the release of a dangerous offender, might not adhere to the evolving constitutional standard. Appellate courts theoretically could correct erroneous trial court judgments, but similar attitudes inclined many appellate judges to permit interrogation tactics that should have been condemned under applicable Supreme Court precedent. The ambiguity of the due process test and its subtle mixture of factual and legal elements discouraged active review even by the most conscientious appellate judges. Moreover, when higher courts did attempt to address confessions questions, they found themselves so wholly at sea that the appearance of principled judicial decision-making inevitably suffered, whether or not they chose to hold the confession inadmissible. The Supreme Court, which has special reasons to guard the objectivity and perceived legitimacy of its processes, was particularly vulnerable to institutional damage on this ground. Had the Court been willing to hear more confessions cases, the threat to its legitimacy and prestige probably would have been aggravated by the very actions that were at the same time necessary to exert more effective control over the lower courts. 3. Application of the standard was fatally dependent upon resolution of “the swearing contest.” Even if the content of the voluntariness test had been more precise, its application would remain dependent on fact-finding about events that inevitably occurred in secret, with the suspect isolated and often disoriented, distraught, or confused. At trial, there was little to prevent police from describing the interrogation in terms consciously or unconsciously slanted to favor admissibility of the confession. The defendant could do little more than present his version, leaving it to the judge or jury to decide the relative credibility of the two sides to this “swearing contest.” And there was next to nothing to prevent judges and juries from systematically resolving credibility issues in favor of the police. Under these circumstances no one could know whether the “facts” evaluated in court corresponded to the events that actually had occurred in the interrogation room. 4. Considerable interrogation pressure was allowed. Although the amount of pressure to confess tolerated by the courts seemed to be steadily diminishing, the voluntariness test clearly did authorize considerable pressure. Indeed, the conception of voluntariness indirectly encouraged police to pressure suspects because it viewed police efforts to persuade a reticent suspect to talk as legitimate and highly desirable. Of course, defenders of the voluntariness test did not regard this particular feature as a defect. But for those who supported the principle of the fifth amendment privilege against compulsory self-incrimination, and who failed to see why “compulsion” within the meaning of the privilege should be narrowly defined as a formal, legal obligation to speak, the allowance of substantial police pressure under the voluntariness test was anomalous and wrong. 5. The weak were manipulated. The voluntariness test ostensibly took account of special weaknesses of the person interrogated, but because it did permit the use of substantial pressures, suspects who were ignorant of their rights, unsophisticated about police practices and court procedures, easily dominated, or otherwise psychologically vulnerable were more likely to be on the losing end of a successful police interrogation. Indeed even in theory, the voluntariness test favored the more sophisticated suspect because it probably did not permit greater-than-average pressure against the stronger- than-average defendant. The appearance of advantage for the more sophisticated took on overtones of discrimination against racial minorities or the poor. The point was . . . that we do (and should) find it unseemly for government officials systematically to seek out and take advantage of the psychological vulnerabilities of a citizen. 6. Physical brutality was not adequately checked. Of course, the voluntariness test prohibited physical violence and other extreme forms of abuse. But by permitting the use of “some” pressure, this approach encouraged the questioning process itself. Indeed, while courts occasionally mentioned a preference for evidence produced “by the independent labor of [police] officers,” the voluntariness test reinforced the idea that an effective police officer is one who succeeds (by “fair” means) in obtaining a confession from the suspect. Unfortunately, after several hours of questioning, “slowing mounting fatigue does . . . play its part” in weakening the officer. It should not have been surprising that sincere, dedicated investigators, intent on solving brutal crimes, occasionally lost their tempers.

Source Publication

A Criminal Procedure Anthology

Source Editors/Authors

Silas J. Wasserstrom, Christie L. Snyder

Publication Date

1996

Confessions and the Court

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