3.1: Chapter 22 - Due Process and the Voluntariness Requirement

INTERROGATIONS

Chapter 22

Due Process and the Voluntariness Requirement

In this chapter we begin our study of how the Court has used the Constitution to regulate interrogations. Over the next several chapters, we will review three main lines of cases: (1) those decided under the Due Process Clauses of the Fourteenth Amendment and the Fifth Amendment, which the Court has used to require that only “voluntary” confessions be admitted as evidence, (2) those decided under the Self-Incrimination Clause of the Fifth Amendment, which the Court has used as the basis for the Miranda Rule, and (3) those decided under the Assistance of Counsel Clause of the Sixth Amendment, which the Court has used to prohibit certain questioning of defendants for whom the right to counsel has “attached.”

We begin with cases enforcing the voluntariness requirement under the Due Process Clauses. Our first case, Brown v. Mississippi, appeared in the reading for our first chapter and students may wish to quickly reread the facts of the case if they do not remember them. In that chapter, Brown was presented to provide background on why the Supreme Court might feel the need to supervise the criminal justice systems of the states. Now, we consider it again to learn the substantive law governing interrogations.

Supreme Court of the United States.

Ed Brown v. Mississippi

Decided Feb. 17, 1936 – 297 U.S. 278

Mr. Chief Justice HUGHES delivered the opinion of the [unanimous] Court.

The question in this case is whether convictions, which rest solely upon confessions shown to have been extorted by officers of the state by brutality and violence, are consistent with the due process of law required by the Fourteenth Amendment of the Constitution of the United States.

Petitioners were indicted for the murder of one Raymond Stewart, whose death occurred on March 30, 1934. They were indicted on April 4, 1934, and were then arraigned and pleaded not guilty. Counsel were appointed by the court to defend them. Trial was begun the next morning and was concluded on the following day, when they were found guilty and sentenced to death.

Aside from the confessions, there was no evidence sufficient to warrant the submission of the case to the jury. After a preliminary inquiry, testimony as to the confessions was received over the objection of defendants’ counsel. Defendants then testified that the confessions were false and had been procured by physical torture.

[D]efendants filed in the Supreme Court a “suggestion of error” explicitly challenging the proceedings of the trial, in the use of the confessions and with respect to the alleged denial of representation by counsel, as violating the due process clause of the Fourteenth Amendment of the Constitution of the United States. The state court entertained the suggestion of error, considered the federal question, and decided it against defendants’ contentions.

The grounds of the decision were (1) that immunity from self-incrimination is not essential to due process of law; and (2) that the failure of the trial court to exclude the confessions after the introduction of evidence showing their incompetency, in the absence of a request for such exclusion, did not deprive the defendants of life or liberty without due process of law; and that even if the trial court had erroneously overruled a motion to exclude the confessions, the ruling would have been mere error reversible on appeal, but not a violation of constitution right.

The state court said: “After the state closed its case on the merits, the appellants, for the first time, introduced evidence from which it appears that the confessions were not made voluntarily but were coerced.” There is no dispute as to the facts upon this point. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some medieval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government.

[The Court then quoted portions of the state court dissent:]

“[T]he solemn farce of hearing the free and voluntary confessions was gone through with, and these two sheriffs and one other person then present were the three witnesses used in court to establish the so-called confessions, which were received by the court and admitted in evidence over the objections of the defendants duly entered of record as each of the said three witnesses delivered their alleged testimony. There was thus enough before the court when these confessions were first offered to make known to the court that they were not, beyond all reasonable doubt, free and voluntary; and the failure of the court then to exclude the confessions is sufficient to reverse the judgment, under every rule of procedure that has heretofore been prescribed, and hence it was not necessary subsequently to renew the objections by motion or otherwise.”

“The defendants were brought to the courthouse … and the so-called trial was opened, and was concluded on the next day, … and resulted in a pretended conviction with death sentences. The evidence upon which the conviction was obtained was the so-called confessions. Without this evidence, a peremptory instruction to find for the defendants would have been inescapable.”

[T]he trial [] is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence. The due process clause requires “that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” 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.

In the instant case, the trial court was fully advised by the undisputed evidence of the way in which the confessions had been procured. The trial court knew that there was no other evidence upon which conviction and sentence could be based. Yet it proceeded to permit conviction and to pronounce sentence. The conviction and sentence were void for want of the essential elements of due process, and the proceeding thus vitiated could be challenged in any appropriate manner. It was challenged before the Supreme Court of the State by the express invocation of the Fourteenth Amendment. That court entertained the challenge, considered the federal question thus presented, but declined to enforce petitioners’ constitutional right. The court thus denied a federal right fully established and specially set up and claimed, and the judgment must be reversed.

* * *

The Court has stated that “when a confession challenged as involuntary is sought to be used against a criminal defendant at his trial … the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary.” Lego v. Twomey, 404 U.S. 477, 489 (1972); see also Bram v. United States, 168 U.S. 532, 555 (1897) (recalling with approval English precedent to the effect “that it was the duty of the prosecutor to satisfy the trial judge that the confession had not been obtained by improper means, and that, where it was impossible to collect from the proof whether such was the case or not, the confession ought not to be received”).

Unfortunately, while the facts in Brown v. Mississippi are horrific, it was not the only case in which the Court found it necessary to reverse a conviction based upon an involuntary confession. Indeed, in reciting the facts of the next case, the Court referred to “the usual pattern” of testimony concerning the treatment of a suspect.

Supreme Court of the United States

E.E. Ashcraft v. Tennessee

Decided May 1, 1944 – 322 U.S. 143

Mr. Justice BLACK delivered the opinion of the Court.

[Petitioner E.E. Ashcraft’s wife was found murdered. The state presented evidence that during interrogation, Ashcraft—a white man—suggested that John Ware—a Black man—was the killer and had acted alone. The state’s evidence also included a subsequent confession by Ashcraft that he hired Ware to kill Mrs. Ashcraft.]

We proceed therefore to consider the evidence relating to the circumstances out of which the alleged confession[] came.

The officers first talked to Ashcraft about 6 P.M. on the day of his wife’s murder as he was returning home from work. Informed by them of the tragedy, he was taken to an undertaking establishment to identify her body which previously had been identified only by a driver’s license. From there he was taken to the county jail where he conferred with the officers until about 2 A.M. No clues of ultimate value came from this conference, though it did result in the officers’ holding and interrogating the Ashcrafts’ maid and several of her friends. During the following week the officers made extensive investigations in Ashcraft’s neighborhood and elsewhere and further conferred with Ashcraft himself on several occasions, but none of these activities produced tangible evidence pointing to the identity of the murderer.

Then, early in the evening of Saturday, June 14, the officers came to Ashcraft’s home and “took him into custody.” In the words of the Tennessee Supreme Court, “They took him to an office or room on the northwest corner of the fifth Floor of the Shelby County jail. This office is equipped with all sorts of crime and detective devices such as a fingerprint outfit, cameras, high-powered lights, and such other devices as might be found in a homicide investigating office. … It appears that the officers placed Ashcraft at a table in this room on the fifth floor of the county jail with a light over his head and began to quiz him. They questioned him in relays until the following Monday morning, June 16, 1941, around nine-thirty or ten o’clock. It appears that Ashcraft from Saturday evening at seven o’clock until Monday morning at approximately nine-thirty never left this homicide room of the fifth floor.”

Testimony of the officers shows that the reason they questioned Ashcraft “in relays” was that they became so tired they were compelled to rest. But from 7:00 Saturday evening until 9:30 Monday morning Ashcraft had no rest. One officer did say that he gave the suspect a single five minutes respite, but except for this five minutes the procedure consisted of one continuous stream of questions.

As to what happened in the fifth-floor jail room during this thirty-six hour secret examination the testimony follows the usual pattern and is in hopeless conflict. Ashcraft swears that the first thing said to him when he was taken into custody was, “Why in hell did you kill your wife?”; that during the course of the examination he was threatened and abused in various ways; and that as the hours passed his eyes became blinded by a powerful electric light, his body became weary, and the strain on his nerves became unbearable. The officers, on the other hand, swear that throughout the questioning they were kind and considerate. They say that they did not accuse Ashcraft of the murder until four hours after he was brought to the jail building, though they freely admit that from that time on their barrage of questions was constantly directed at him on the assumption that he was the murderer. Together with other persons whom they brought in on Monday morning to witness the culmination of the thirty-six hour ordeal the officers declare that at that time Ashcraft was “cool”, “calm”, “collected,” “normal”; that his vision was unimpaired and his eyes not bloodshot; and that he showed no outward signs of being tired or sleepy.

As to whether Ashcraft actually confessed there is a similar conflict of testimony. Ashcraft maintains that although the officers incessantly attempted by various tactics of intimidation to entrap him into a confession, not once did he admit knowledge concerning or participation in the crime. And he specifically denies the officers’ statements that he accused Ware of the crime, insisting that in response to their questions he merely gave them the name of Ware as one of several men who occasionally had ridden with him to work. The officers’ version of what happened, however, is that about 11 P.M. on Sunday night, after twenty-eight hours’ constant questioning, Ashcraft made a statement that Ware had overpowered him at his home and abducted the deceased, and was probably the killer. About midnight the officers found Ware and took him into custody, and, according to their testimony, Ware made a self-incriminating statement as of early Monday morning, and at 5:40 A.M. signed by mark a written confession in which appeared the statement that Ashcraft had hired him to commit the murder. This alleged confession of Ware was read to Ashcraft about six o’clock Monday morning, whereupon Ashcraft is said substantially to have admitted its truth in a detailed statement taken down by a reporter. About 9:30 Monday morning a transcript of Ashcraft’s purported statement was read to him. The State’s position is that he affirmed its truth but refused to sign the transcript, saying that he first wanted to consult his lawyer. As to this latter 9:30 episode the officers’ testimony is reinforced by testimony of the several persons whom they brought in to witness the end of the examination.

In reaching our conclusion as to the validity of Ashcraft’s confession we do not resolve any of the disputed questions of fact relating to the details of what transpired within the confession chamber of the jail or whether Ashcraft actually did confess. Such disputes, we may say, are an inescapable consequence of secret inquisitorial practices. And always evidence concerning the inner details of secret inquisitions is weighted against an accused, particularly where, as here, he is charged with a brutal crime, or where, as in many other cases, his supposed offense bears relation to an unpopular economic, political, or religious cause.

Our conclusion is that if Ashcraft made a confession it was not voluntary but compelled. We reach this conclusion from facts which are not in dispute at all. Ashcraft, a citizen of excellent reputation, was taken into custody by police officers. Ten days’ examination of the Ashcrafts’ maid, and of several others, in jail where they were held, had revealed nothing whatever against Ashcraft. Inquiries among his neighbors and business associates likewise had failed to unearth one single tangible clue pointing to his guilt. For thirty-six hours after Ashcraft’s seizure during which period he was held incommunicado, without sleep or rest, relays of officers, experienced investigators, and highly trained lawyers questioned him without respite. From the beginning of the questioning at 7 o’clock on Saturday evening until 6 o’clock on Monday morning Ashcraft denied that he had anything to do with the murder of his wife. And at a hearing before a magistrate about 8:30 Monday morning Ashcraft pleaded not guilty to the charge of murder which the officers had sought to make him confess during the previous thirty-six hours.

We think a situation such as that here shown by uncontradicted evidence is so inherently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear. It is inconceivable that any court of justice in the land, conducted as our courts are, open to the public, would permit prosecutors serving in relays to keep a defendant witness under continuous cross examination for thirty-six hours without rest or sleep in an effort to extract a “voluntary” confession. Nor can we, consistently with Constitutional due process of law, hold voluntary a confession where prosecutors do the same thing away from the restraining influences of a public trial in an open court room.

* * *

As was true of Brown v. Mississippi and Tennessee v. Ashcraft, our next case not only has unpleasant facts, but also required the Supreme Court to overrule a state court of last resort which had affirmed a conviction.

Supreme Court of the United States

Frank Andrew Payne v. Arkansas

Decided May 19, 1958 – 356 U.S. 560

Mr. Justice WHITTAKER delivered the opinion of the Court.

Near 6:30 p.m. on October 4, 1955, J. M. Robertson, an elderly retail lumber dealer in the City of Pine Bluff, Arkansas, was found in his office dead or dying from crushing blows inflicted upon his head. More than $450 was missing from the cash drawer. Petitioner, a 19-year-old [Black man] with a fifth-grade education,¹ who had been employed by Robertson for several weeks, was suspected of the crime. He was interrogated that night at his home by the police, but they did not then arrest him. Near 11 a.m. the next day, October 5, he was arrested.

Petitioner was held incommunicado without any charge against him from the time of his arrest at 11 a.m. on October 5 until after his confession on the afternoon of October 7, without counsel, advisor or friend being permitted to see him. Members of his family who sought to see him were turned away, because the police did not “make it a practice of letting anyone talk to [prisoners] while they are being questioned.” Two of petitioner’s brothers and three of his nephews were, to his knowledge, brought by the police to the city jail and questioned during the evening of petitioner’s arrest, and one of his brothers was arrested and held in jail overnight. Petitioner asked permission to make a telephone call but his request was denied.

Petitioner was not given lunch after being lodged in the city jail on October 5, and missed the evening meal on that day because he was then being questioned in the office of the chief of police. Near 6:30 the next morning, October 6, he was taken by the police, without breakfast, and also without shoes or socks, on a trip to Little Rock, a distance of about 45 miles, for further questioning and a lie detector test, arriving there about 7:30 a.m. He was not given breakfast in that city, but was turned over to the state police who gave him a lie detector test and questioned him for an extended time not shown in the record. At about 1 p.m. that day he was given shoes and also two sandwiches—the first food he had received in more than 25 hours. He was returned to the city jail in Pine Bluff at about 6:30 that evening—too late for the evening meal—and placed in a cell on the second floor. The next morning, October 7, he was given breakfast—which, except for the two sandwiches he had been given at Little Rock at 1 p.m. the day before, was the only food he had received in more than 40 hours.

We come now to an even more vital matter. Petitioner testified, concerning the conduct that immediately induced his confession, as follows: “I was locked up upstairs and Chief Norman Young came up [about 1 p.m. on October 7] and told me that I had not told him all of the story—he said that there was 30 or 40 people outside that wanted to get me, and he said if I would come in and tell him the truth that he would probably keep them from coming in.” When again asked what the chief of police had said to him on that occasion petitioner testified: “Chief Norman Young said thirty or forty people were outside wanting to get in to me and he asked me if I wanted to make a confession he would try to keep them out.” The chief of police, on cross-examination, admitted that he had made the substance of that statement to petitioner, and had told him that he would be permitted to confess to the chief “in private.” In this setting, petitioner immediately agreed to make a statement to the chief. The chief then took petitioner to his private office, and almost immediately after arriving at that place there was a knock on the door. The chief opened the door and stepped outside, leaving the door ajar, and petitioner heard him say “‘He is fixing to confess now,’ and he would like to have me alone.” Petitioner did not know what persons or how many were outside the door. The chief re-entered his office and began questioning petitioner who orally confessed that he had committed the crime. Thereupon Sergeant Halsell of the State Police and Sheriff Norton were admitted to the room, and under questioning by Sergeant Halsell petitioner gave more details concerning the crime. Soon afterward a court reporter was called in and several businessmen were also admitted to the room. Sergeant Halsell then requisitioned petitioner and the questions and answers were taken by the reporter in shorthand. After being transcribed by the reporter, the typed transcription was returned to the room about 3 p.m. and was read and signed to petitioner and witnessed by the officers and businessmen referred to. Thus the “confession” was obtained.

That petitioner was not physically tortured affords no answer to the question whether the confession was coerced, for “[t]here is torture of mind as well as body; the will is as much affected by fear as by force. … A confession by which life becomes forfeit must be the expression of free choice.” The undisputed evidence in this case shows that petitioner, a mentally dull 19-year-old youth, (1) was arrested without a warrant, (2) was denied a hearing before a magistrate at which he would have been advised of his right to remain silent and of his right to counsel, as required by Arkansas statutes, (3) was not advised of his right to remain silent or of his right to counsel, (4) was held incommunicado for three days, without counsel, advisor or friend, and though members of his family tried to see him they were turned away, and he was refused permission to make even one telephone call, (5) was denied food for long periods, and, finally, (6) was told by the chief of police “that there would be 30 or 40 people there in a few minutes that wanted to get him,” which statement created such fear in petitioner as immediately produced the “confession.” It seems obvious from the totality of this course of conduct, and particularly the culminating threat of mob violence, that the confession was coerced and did not constitute an “expression of free choice,” and that its use before the jury, over petitioner’s objection, deprived him of “that fundamental fairness essential to the very concept of justice,” and, hence, denied him due process of law, guaranteed by the Fourteenth Amendment.

* * *

The next case demonstrates that coercive interrogations were by no means limited to the American South. Further, to find that a confession was not voluntary, the Court does not require evidence of physical mistreatment of a suspect.

Supreme Court of the United States

Vincent Joseph Spano v. New York

Decided June 22, 1959 – 360 U.S. 315

Mr. Chief Justice WARREN delivered the opinion of the Court.

This is another in the long line of cases presenting the question whether a confession was properly admitted into evidence under the Fourteenth Amendment. As in all such cases, we are forced to resolve a conflict between two fundamental interests of society; its interest in prompt and efficient law enforcement, and its interest in preventing the rights of its individual members from being abridged by unconstitutional methods of law enforcement. Because of the delicate nature of the constitutional determination which we must make, we cannot escape the responsibility of making our own examination of the record.

The State’s evidence reveals the following: Petitioner Vincent Joseph Spano is a derivative citizen of this country, having been born in Messina, Italy. He was 25 years old at the time of the shooting in question and had graduated from junior high school. He had a record of regular employment. The shooting took place on January 22, 1957.

On that day, petitioner was drinking in a bar. The decedent, a former professional boxer weighing almost 200 pounds who had fought in Madison Square Garden, took some of petitioner’s money from the bar. Petitioner followed him out of the bar to recover it. A fight ensued, with the decedent knocking petitioner down and then kicking him in the head three or four times. Shock from the force of these blows caused petitioner to vomit. After the bartender applied some ice to his head, petitioner left the bar, walked to his apartment, secured a gun, and walked eight or nine blocks to a candy store where the decedent was frequently to be found. He entered the store in which decedent, three friends of decedent, at least two of whom were ex-convicts, and a boy who was supervising the store were present. He fired five shots, two of which entered the decedent’s body, causing his death. The boy was the only eyewitness; the three friends of decedent did not see the person who fired the shot. Petitioner then disappeared for the next week or so.

On February 1, 1957, the Bronx County Grand Jury returned an indictment for first-degree murder against petitioner. Accordingly, a bench warrant was issued for his arrest, commanding that he be forthwith brought before the court to answer the indictment, or, if the court had adjourned for the term, that he be delivered into the custody of the Sheriff of Bronx County.

On February 3, 1957, petitioner called one Gaspar Bruno, a close friend of 8 or 10 years’ standing who had attended school with him. Bruno was a fledgling police officer, having at that time not yet finished attending police academy. According to Bruno’s testimony, petitioner told him “that he took a terrific beating, that the deceased hurt him real bad and he dropped him a couple of times and he was dazed; he didn’t know what he was doing and that he went and shot at him.” Petitioner told Bruno that he intended to get a lawyer and give himself up. Bruno relayed this information to his superiors.

The following day, February 4, at 7:10 p.m., petitioner, accompanied by counsel, surrendered himself to the authorities in front of the Bronx County Building, where both the office of the Assistant District Attorney who ultimately prosecuted his case and the court-room in which he was ultimately tried were located. His attorney had cautioned him to answer no questions, and left him in the custody of the officers. He was promptly taken to the office of the Assistant District Attorney and at 7:15 p.m. the questioning began, being conducted by Assistant District Attorney Goldsmith, Lt. Gannon, Detectives Farrell, Lehrer and Motta, and Sgt. Clarke. The record reveals that the questioning was both persistent and continuous. Petitioner, in accordance with his attorney’s instructions, steadfastly refused to answer. Detective Motta testified: “He refused to talk to me.” “He just looked up to the ceiling and refused to talk to me.” Detective Farrell testified:

“Q. And you started to interrogate him? A. That is right.

“Q. What did he say? A. He said ‘you would have to see my attorney. I tell you nothing but my name.’

“Q. Did you continue to examine him? A. Verbally, yes, sir.”

He asked one officer, Detective Ciccone, if he could speak to his attorney, but that request was denied. Detective Ciccone testified that he could not find the attorney’s name in the telephone book.² He was given two sandwiches, coffee and cake at 11 p.m.

At 12:15 a.m. on the morning of February 5, after five hours of questioning in which it became evident that petitioner was following his attorney’s instructions, on the Assistant District Attorney’s orders petitioner was transferred to the 46th Squad, Ryer Avenue Police Station. The Assistant District Attorney also went to the police station and to some extent continued to participate in the interrogation. Petitioner arrived at 12:30 and questioning was resumed at 12:40. The character of the questioning is revealed by the testimony of Detective Farrell:

“Q. Who did you leave him in the room with? A. With Detective Lehrer and Sergeant Clarke came in and Mr. Goldsmith came in or Inspector Halk came in. It was back and forth. People just came in, spoke a few words to the defendant or they listened a few minutes and they left.”

But petitioner persisted in his refusal to answer, and again requested permission to see his attorney, this time from Detective Lehrer. His request was again denied.

It was then that those in charge of the investigation decided that petitioner’s close friend, Bruno, could be of use. He had been called out on the case around 10 or 11 p.m., although he was not connected with the 46th Squad or Precinct in any way. Although, in fact, his job was in no way threatened, Bruno was told to tell petitioner that petitioner’s telephone call had gotten him “in a lot of trouble,” and that he should seek to extract sympathy from petitioner for Bruno’s pregnant wife and three children. Bruno developed this theme with petitioner without success, and petitioner, also without success, again sought to see his attorney, a request which Bruno relayed unavailingly to his superiors. After this first session with petitioner, Bruno was again directed by Lt. Gannon to play on petitioner’s sympathies, but again no confession was forthcoming. But the Lieutenant a third time ordered Bruno falsely to importune his friend to confess but again petitioner clung to his attorney’s advice. Inevitably, in the fourth such session directed by the Lieutenant, lasting a full hour, petitioner succumbed to his friend’s prevarications and agreed to make a statement. Accordingly, at 3:25 a.m. the Assistant District Attorney, a stenographer, and several other law enforcement officials entered the room where petitioner was being questioned, and took his statement in question and answer form with the Assistant District Attorney asking the questions. The statement was completed at 4:05 a.m.

But this was not the end. At 4:30 a.m. three detectives took petitioner to Police Headquarters in Manhattan. On the way they attempted to find the bridge from which petitioner said he had thrown the murder weapon. They crossed the Triborough Bridge into Manhattan, arriving at Police Headquarters at 5 a.m., and left Manhattan for the Bronx at 5:40 a.m. via the Willis Avenue Bridge. When petitioner recognized neither bridge as the one from which he had thrown the weapon, they re-entered Manhattan via the Third Avenue Bridge, which petitioner stated was the right one, and then returned to the Bronx well after 6 a.m. During that trip the officers also elicited a statement from petitioner that the deceased was always “on [his] back,” “always pushing” him and that he was “not sorry” he had shot the deceased. All three detectives testified to that statement at the trial.

At the trial, the confession was introduced in evidence over appropriate objections. The jury was instructed that it could rely on it only if it was found to be voluntary. The jury returned a guilty verdict and petitioner was sentenced to death. The New York Court of Appeals affirmed the conviction over three dissents, and we granted certiorari to resolve the serious problem presented under the Fourteenth Amendment.

The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. Accordingly, the actions of police in obtaining confessions have come under scrutiny in a long series of cases. Those cases suggest that in recent years law enforcement officials have become increasingly aware of the burden which they share, along with our courts, in protecting fundamental rights of our citizenry, including that portion of our citizenry suspected of crime. [A]s law enforcement officers become more responsible, and the methods used to extract confessions more sophisticated, our duty to enforce federal constitutional protections does not cease. It only becomes more difficult because of the more delicate judgments to be made. Our judgment here is that, on all the facts, this conviction cannot stand.

Petitioner was a foreign-born young man of 25 with no past history of law violation or of subjection to official interrogation, at least insofar as the record shows. He had progressed only one-half year into high school and the record indicates that he had a history of emotional instability. He did not make a narrative statement, but was subject to the leading questions of a skillful prosecutor in a question and answer confession. He was subjected to questioning not by a few men, but by many. They included Assistant District Attorney Goldsmith, one Hyland of the District Attorney’s Office, Deputy Inspector Halks, Lieutenant Gannon, Detective Ciccone, Detective Motta, Detective Lehrer, Detective Marshal, Detective Farrell, Detective Leira, Detective Murphy, Detective Murtha, Sergeant Clarke, Patrolman Bruno and Stenographer Baldwin. All played some part, and the effect of such massive official interrogation must have been felt. Petitioner was questioned for virtually eight straight hours before he confessed, with his only respite being a transfer to an arena presumably considered more appropriate by the police for the task at hand. Nor was the questioning conducted during normal business hours, but began in early evening, continued into the night, and did not bear fruition until the not-too-early morning. The drama was not played out, with the final admissions obtained, until almost sunrise. In such circumstances slowly mounting fatigue does, and is calculated to, play its part. The questioners persisted in the face of his repeated refusals to answer on the advice of his attorney, and they ignored his reasonable requests to contact the local attorney whom he had already retained and who had personally delivered him into the custody of these officers in obedience to the bench warrant.

The use of Bruno, characterized in this Court by counsel for the State as a “childhood friend” of petitioner’s, is another factor which deserves mention in the totality of the situation. Bruno’s was the one face visible to petitioner in which he could put some trust. There was a bond of friendship between them going back a decade into adolescence. It was with this material that the officers felt that they could overcome petitioner’s will. They instructed Bruno falsely to state that petitioner’s telephone call had gotten him into trouble, that his job was in jeopardy, and that loss of his job would be disastrous to his three children, his wife and his unborn child. And Bruno played this part of a worried father, harried by his superiors, in not one, but four different acts, the final one lasting an hour. Petitioner was apparently unaware of John Gay’s famous couplet: “An open foe may prove a curse, But a pretended friend is worse,” and he yielded to his false friend’s entreaties.

We conclude that petitioner’s will was overborne by official pressure, fatigue and sympathy falsely aroused after considering all the facts in their post-indictment setting. Here a grand jury had already found sufficient cause to require petitioner to face trial on a charge of first-degree murder, and the police had an eyewitness to the shooting. The police were not therefore merely trying to solve a crime, or even to absolve a suspect. They were rather concerned primarily with securing a statement from defendant on which they could convict him. The undeviating intent of the officers to extract a confession from petitioner is therefore patent. When such an intent is shown, this Court has held that the confession obtained must be examined with the most careful scrutiny, and has reversed a conviction on facts less compelling than these. Accordingly, we hold that petitioner’s conviction cannot stand under the Fourteenth Amendment. The judgment must be reversed.

Notes, Comments, and Questions

For a case in which coercive conduct was alleged but the Court nonetheless affirmed a conviction, students should see Lisbena v. California, 314 U.S. 219 (1941). In a dissent joined by Justice Douglas, Justice Black wrote, “The testimony of the officers to whom the confession was given is enough, standing alone, to convince me that it could not have been free and voluntary.” In particular, the dissent noted that “an investigator, ‘slapped’ the defendant whose left ear was thereafter red and swollen” and that squads of questioners took turns interviewing the defendant, in a manner similar to other cases we have seen. The majority, however, deferred to state court findings “as concerns the petitioner’s claims of physical violence, threats or implied promises of leniency.” Despite referring to “the violations of law involved in the treatment of the petitioner,” the Court declined to find a Due Process violation. Instead, it called the case “close to the line” and held that the defendant “exhibited a self-possession, a coolness, and an acumen throughout his questioning, and at his trial, which negatives the view that he had so lost his freedom of action that the statements made were not his but were the result of the deprivation of his free choice to admit, to deny, or to refuse to answer.”

These days, a promise of lenient treatment does not automatically render the ensuing confession involuntary. Instead, it is a factor to consider as part of the “totality-of-the-circumstances” test the Court applies to Due Process claims.

The next case also involved facts very close to the line that separates “voluntary” confessions from “involuntary” confessions. Note that while Justice White wrote for the Court, part of his opinion is a dissent because he could not obtain majority support.

Supreme Court of the United States

Arizona v. Oreste C. Fulminante

Decided March 26, 1991 – 499 U.S. 279

Justice WHITE delivered an opinion, Parts I, II, and IV of which are the opinion of the Court, and Part III of which is a dissenting opinion.³

The Arizona Supreme Court ruled in this case that respondent Oreste Fulminante’s confession, received in evidence at his trial for murder, had been coerced and that its use against him was barred by the Fifth and Fourteenth Amendments to the United States Constitution. The court also held that the harmless-error rule could not be used to save the conviction. We affirm the judgment of the Arizona court, although for different reasons than those upon which that court relied.

I

Early in the morning of September 14, 1982, Fulminante called the Mesa, Arizona, Police Department to report that his 11-year-old stepdaughter, Jeneane Michelle Hunt, was missing. He had been caring for Jeneane while his wife, Jeneane’s mother, was in the hospital. Two days later, Jeneane’s body was found in the desert east of Mesa. She had been shot twice in the head at close range with a large caliber weapon, and a ligature was around her neck. Because of the decomposed condition of the body, it was impossible to tell whether she had been sexually assaulted.

Fulminante’s statements to police concerning Jeneane’s disappearance and his relationship with her contained a number of inconsistencies, and he became a suspect in her killing. When no charges were filed against him, Fulminante left Arizona for New Jersey. Fulminante was later convicted in New Jersey on federal charges of possession of a firearm by a felon.

Fulminante was incarcerated in the Ray Brook Federal Correctional Institution in New York. There he became friends with another inmate, Anthony Sarivola, then serving a 60-day sentence for extortion. The two men came to spend several hours a day together. Sarivola, a former police officer, had been involved in loansharking for organized crime but then became a paid informant for the Federal Bureau of Investigation. While at Ray Brook, he masqueraded as an organized crime figure. After becoming friends with Fulminante, Sarivola heard a rumor that Fulminante was suspected of killing a child in Arizona. Sarivola then raised the subject with Fulminante in several conversations, but Fulminante repeatedly denied any involvement in Jeneane’s death. During one conversation, he told Sarivola that Jeneane had been killed by bikers looking for drugs; on another occasion, he said he did not know what had happened. Sarivola passed this information on to an agent of the Federal Bureau of Investigation, who instructed Sarivola to find out more.

Sarivola learned more one evening in October 1983, as he and Fulminante walked together around the prison track. Sarivola said that he knew Fulminante was “starting to get some tough treatment and whatnot” from other inmates because of the rumor. Sarivola offered to protect Fulminante from his fellow inmates, but told him, “‘You have to tell me about it,’ you know. I mean, in other words, ‘For me to give you any help.’” Fulminante then admitted to Sarivola that he had driven Jeneane to the desert on his motorcycle, where he choked her, sexually assaulted her, and made her beg for her life, before shooting her twice in the head.

Sarivola was released from prison in November 1983. Fulminante was released the following May, only to be arrested the next month for another weapons violation. On September 4, 1984, Fulminante was indicted in Arizona for the first-degree murder of Jeneane.

Prior to trial, Fulminante moved to suppress the statement he had given Sarivola in prison, as well as a second confession he had given to Donna Sarivola, then Anthony Sarivola’s fiancée and later his wife, following his May 1984 release from prison. He asserted that the confession to Sarivola was coerced, and that the second confession was the “fruit” of the first. Following the hearing, the trial court denied the motion to suppress, specifically finding that, based on the stipulated facts, the confessions were voluntary. The State introduced both confessions as evidence at trial, and on December 19, 1985, Fulminante was convicted of Jeneane’s murder. He was subsequently sentenced to death.

Fulminante appealed, arguing, among other things, that his confession to Sarivola was the product of coercion and that its admission at trial violated his rights to due process under the Fifth and Fourteenth Amendments to the United States Constitution. After considering the evidence at trial as well as the stipulated facts before the trial court on the motion to suppress, the Arizona Supreme Court held that the confession was coerced, but initially determined that the admission of the confession at trial was harmless error, because of the overwhelming nature of the evidence against Fulminante. Upon Fulminante’s motion for reconsideration, however, the court ruled that this Court’s precedent precluded the use of the harmless-error analysis in the case of a coerced confession. The court therefore reversed the conviction and ordered that Fulminante be retried without the use of the confession to Sarivola. Because of differing views in the state and federal courts over whether the admission at trial of a coerced confession is subject to a harmless-error analysis, we granted the State’s petition for certiorari. Although a majority of this Court finds that such a confession is subject to a harmless-error analysis, for the reasons set forth below, we affirm the judgment of the Arizona court.

II

We deal first with the State’s contention that the court below erred in holding Fulminante’s confession to have been coerced. In applying the totality of the circumstances test to determine that the confession to Sarivola was coerced, the Arizona Supreme Court focused on a number of relevant facts. First, the court noted that “because [Fulminante] was an alleged child murderer, he was in danger of physical harm at the hands of other inmates.” In addition, Sarivola was aware that Fulminante had been receiving “‘rough treatment from the guys.’” Using his knowledge of these threats, Sarivola offered to protect Fulminante in exchange for a confession to Jeneane’s murder, and “[i]n response to Sarivola’s offer of protection, [Fulminante] confessed.” Agreeing with Fulminante that “Sarivola’s promise was ‘extremely coercive,’” the Arizona court declared: “[T]he confession was obtained as a direct result of extreme coercion and was tendered in the belief that the defendant’s life was in jeopardy if he did not confess. This is a true coerced confession in every sense of the word.”

We normally give great deference to the factual findings of the state court. Nevertheless, “the ultimate issue of ‘voluntariness’ is a legal question requiring independent federal determination.” Although the question is a close one, we agree with the Arizona Supreme Court’s conclusion that Fulminante’s confession was coerced. The Arizona Supreme Court found a credible threat of physical violence unless Fulminante confessed. Our cases have made clear that a finding of coercion need not depend upon actual violence by a government agent; a credible threat is sufficient. Accepting the Arizona court’s finding, permissible on this record, that there was a credible threat of physical violence, we agree with its conclusion that Fulminante’s will was overborne in such a way as to render his confession the product of coercion.

III⁴

Four of us, Justices MARSHALL, BLACKMUN, STEVENS, and myself, would affirm the judgment of the Arizona Supreme Court on the ground that the harmless-error rule is inapplicable to erroneously admitted coerced confessions. We thus disagree with the Justices who have a contrary view.

The majority today abandons what until now the Court has regarded as the “axiomatic [proposition] that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction.” Today, a majority of the Court, without any justification, overrules [a] vast body of precedent without a word and in so doing dislodges one of the fundamental tenets of our criminal justice system.

The search for truth is indeed central to our system of justice, but “certain constitutional rights are not, and should not be, subject to harmless-error analysis because those rights protect important values that are unrelated to the truth-seeking function of the trial.” The right of a defendant not to have his coerced confession used against him is among those rights, for using a coerced confession “abort[s] the basic trial process” and “render[s] a trial fundamentally unfair.”

For the foregoing reasons the four of us would adhere to the consistent line of authority that has recognized as a basic tenet of our criminal justice system the prohibition against using a defendant’s coerced confession against him at his criminal trial. Stare decisis is “of fundamental importance to the rule of law;” the majority offers no convincing reason for overturning our long line of decisions requiring the exclusion of coerced confessions.

IV

Since five Justices have determined that harmless-error analysis applies to coerced confessions, it becomes necessary to evaluate under that ruling the admissibility of Fulminante’s confession to Sarivola. “Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” The Court has the power to review the record de novo in order to determine an error’s harmlessness. In so doing, it must be determined whether the State has met its burden of demonstrating that the admission of the confession to Sarivola did not contribute to Fulminante’s conviction. Five of us are of the view that the State has not carried its burden and accordingly affirm the judgment of the court below reversing respondent’s conviction.

A confession is like no other evidence. Indeed, “the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. … [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.” While some statements by a defendant may concern isolated aspects of the crime or may be incriminating only when linked to other evidence, a full confession in which the defendant discloses the motive for and means of the crime may tempt the jury to rely upon that evidence alone in reaching its decision. In the case of a coerced confession such as that given by Fulminante to Sarivola, the risk that the confession is unreliable, coupled with the profound impact that the confession has upon the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless.

Our review of the record leads us to conclude that the State has failed to meet its burden of establishing, beyond a reasonable doubt, that the admission of Fulminante’s confession to Anthony Sarivola was harmless error.

Because a majority of the Court has determined that Fulminante’s confession to Anthony Sarivola was coerced and because a majority has determined that admitting this confession was not harmless beyond a reasonable doubt, we agree with the Arizona Supreme Court’s conclusion that Fulminante is entitled to a new trial at which the confession is not admitted. Accordingly the judgment of the Arizona Supreme Court is [a]ffirmed.

Chief Justice REHNQUIST, with whom Justice O’CONNOR joins, Justice KENNEDY and Justice SOUTER join as to Parts I and II, and Justice SCALIA joins as to Parts II and III, delivered the opinion of the Court with respect to Part II, and a dissenting opinion with respect to Parts I and III.

The Court today properly concludes that the admission of an “involuntary” confession at trial is subject to harmless error analysis. Nonetheless, the independent review of the record which we are required to make shows that respondent Fulminante’s confession was not in fact involuntary. And even if the confession were deemed to be involuntary, the evidence offered at trial, including a second, untainted confession by Fulminante, supports the conclusion that any error here was certainly harmless.

The admissibility of a confession such as that made by respondent Fulminante depends upon whether it was voluntarily made. “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.”

In this case the parties stipulated to the basic facts at the hearing in the Arizona trial court on respondent’s motion to suppress the confession. Anthony Sarivola, an inmate at the Ray Brook Prison, was a paid confidential informant for the FBI. While at Ray Brook, various rumors reached Sarivola that Oreste Fulminante, a fellow inmate who had befriended Sarivola, had killed his stepdaughter in Arizona. Sarivola passed these rumors on to his FBI contact, who told him “to find out more about it.” Sarivola, having already discussed the rumors with respondent on several occasions, asked him whether the rumors were true, adding that he might be in a position to protect Fulminante from physical recriminations in prison, but that “[he] must tell him the truth.” Fulminante then confessed to Sarivola that he had in fact killed his stepdaughter in Arizona, and provided Sarivola with substantial details about the manner in which he killed the child. At the suppression hearing, Fulminante stipulated to the fact that “[a]t no time did the defendant indicate he was in fear of other inmates nor did he ever seek Mr. Sarivola’s ‘protection.’” The trial court was also aware, through an excerpt from Sarivola’s interview testimony which respondent appended to his reply memorandum, that Sarivola believed Fulminante’s time was “running short” and that he would “have went out of the prison horizontally.” The trial court found that respondent’s confession was voluntary.

On the basis of the record before it, the Supreme Court stated:

“Defendant contends that because he was an alleged child murderer, he was in danger of physical harm at the hands of other inmates. Sarivola was aware that defendant faced the possibility of retribution from other inmates, and that in return for the confession with respect to the victim’s murder, Sarivola would protect him. Moreover, the defendant maintains that Sarivola’s promise was “extremely coercive’ because the ‘obvious’ inference from the promise was that his life would be in jeopardy if he did not confess. We agree.”

Exercising our responsibility to make the independent examination of the record necessary to decide this federal question, I am at a loss to see how the Supreme Court of Arizona reached the conclusion that it did. Fulminante offered no evidence that he believed that his life was in danger or that he in fact confessed to Sarivola in order to obtain the proffered protection. Indeed, he had stipulated that “[a]t no time did the defendant indicate he was in fear of other inmates nor did he ever seek Mr. Sarivola’s ‘protection.’” Sarivola’s testimony that he told Fulminante that “if [he] would tell the truth, he could be protected,” adds little if anything to the substance of the parties’ stipulation. The decision of the Supreme Court of Arizona rests on an assumption that is squarely contrary to this stipulation, and one that is not supported by any testimony of Fulminante.

The conversations between Sarivola and Fulminante were not lengthy, and the defendant was free at all times to leave Sarivola’s company. Sarivola at no time threatened him or demanded that he confess; he simply requested that he speak the truth about the matter. Fulminante was an experienced habitue of prisons, and presumably able to fend for himself. In concluding on these facts that Fulminante’s confession was involuntary, the Court today embraces a more expansive definition of that term than is warranted by any of our decided cases.

* * *

In Colorado v. Connelly, the Court considered whether a confession could be deemed “involuntary” without evidence of misconduct by any government official. In particular, the question was whether a suspect’s mental illness could make his confession involuntary for purposes of the Due Process Clause of the Fourteenth Amendment.

Supreme Court of the United States

Colorado v. Francis Barry Connelly

Decided Dec. 10, 1986 – 479 U.S. 157

Chief Justice REHNQUIST delivered the opinion of the Court.

In this case, the Supreme Court of Colorado held that the United States Constitution requires a court to suppress a confession when the mental state of the defendant, at the time he made the confession, interfered with his “rational intellect” and his “free will.” Because this decision seemed to conflict with prior holdings of this Court, we granted certiorari. We conclude that the admissibility of this kind of statement is governed by state rules of evidence. We therefore reverse.

I

On August 18, 1983, Officer Patrick Anderson of the Denver Police Department was in uniform, working in an off-duty capacity in downtown Denver. Respondent Francis Connelly approached Officer Anderson and, without any prompting, stated that he had murdered someone and wanted to talk about it. Anderson immediately advised respondent that he had the right to remain silent, that anything he said could be used against him in court, and that he had the right to an attorney prior to any police questioning. Respondent stated that he understood these rights but he still wanted to talk about the murder. Understandably bewildered by this confession, Officer Anderson asked respondent several questions. Connelly denied that he had been drinking, denied that he had been taking any drugs, and stated that, in the past, he had been a patient in several mental hospitals. Officer Anderson again told Connelly that he was under no obligation to say anything. Connelly replied that it was “all right,” and that he would talk to Officer Anderson because his conscience had been bothering him. To Officer Anderson, respondent appeared to understand fully the nature of his acts.

Shortly thereafter, Homicide Detective Stephen Antuna arrived. Respondent was again advised of his rights, and Detective Antuna asked him “what he had on his mind.” Respondent answered that he had come all the way from Boston to confess to the murder of Mary Ann Junta, a young girl whom he had killed in Denver sometime during November 1982. Respondent was taken to police headquarters, and a search of police records revealed that the body of an unidentified female had been found in April 1983. Respondent openly detailed his story to Detective Antuna and Sergeant Thomas Haney, and readily agreed to take the officers to the scene of the killing. Under Connelly’s sole direction, the two officers and respondent proceeded in a police vehicle to the location of the crime. Respondent pointed out the exact location of the murder. Throughout this episode, Detective Antuna perceived no indication whatsoever that respondent was suffering from any kind of mental illness.

Respondent was held overnight. During an interview with the public defender’s office the following morning, he became visibly disoriented. He began giving confused answers to questions, and for the first time, stated that “voices” had told him to come to Denver and that he had followed the directions of these voices in confessing. Respondent was sent to a state hospital for evaluation. He was initially found incompetent to assist in his own defense. By March 1984, however, the doctors evaluating respondent determined that he was competent to proceed to trial.

At a preliminary hearing, respondent moved to suppress all of his statements. Dr. Jeffrey Metzner, a psychiatrist employed by the state hospital, testified that respondent was suffering from chronic schizophrenia and was in a psychotic state at least as of August 17, 1983, the day before he confessed. Metzner’s interviews with respondent revealed that respondent was following the “voice of God.” This voice instructed respondent to withdraw money from the bank, to buy an airplane ticket, and to fly from Boston to Denver. When respondent arrived from Boston, God’s voice became stronger and told respondent either to confess to the killing or to commit suicide. Reluctantly following the command of the voices, respondent approached Officer Anderson and confessed.

Dr. Metzner testified that, in his expert opinion, respondent was experiencing “command hallucinations.” This condition interfered with respondent’s “volitional abilities; that is, his ability to make free and rational choices.” Dr. Metzner further testified that Connelly’s illness did not significantly impair his cognitive abilities. Thus, respondent understood the rights he had when Officer Anderson and Detective Antuna advised him that he need not speak. Dr. Metzner admitted that the “voices” could in reality be Connelly’s interpretation of his own guilt, but explained that in his opinion, Connelly’s psychosis motivated his confession.

On the basis of this evidence the Colorado trial court decided that respondent’s statements must be suppressed because they were “involuntary.” The trial court also found that Connelly’s mental state vitiated his attempted waiver of the right to counsel and the privilege against compulsory self-incrimination. Accordingly, respondent’s initial statements and his custodial confession were suppressed. The Colorado Supreme Court affirmed.

II

[W]e [have] held that by virtue of the Due Process Clause “certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned.”

Indeed, coercive government misconduct was the catalyst for this Court’s seminal confession case, Brown v. Mississippi. In that case, police officers extracted confessions from the accused through brutal torture. The Court had little difficulty concluding that even though the Fifth Amendment did not at that time apply to the States, the actions of the police were “revolting to the sense of justice.”

Thus the cases considered by this Court over the 50 years since Brown v. Mississippi have focused upon the crucial element of police overreaching. While each confession case has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct. Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law. Respondent correctly notes that as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the “voluntariness” calculus. But this fact does not justify a conclusion that a defendant’s mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional “voluntariness.”

Our “involuntary confession” jurisprudence is entirely consistent with the settled law requiring some sort of “state action” to support a claim of violation of the Due Process Clause of the Fourteenth Amendment. The Colorado trial court, of course, found that the police committed no wrongful acts, and that finding has been neither challenged by respondent nor disturbed by the Supreme Court of Colorado. The latter court, however, concluded that sufficient state action was present by virtue of the admission of the confession into evidence in a court of the State.

The difficulty with the approach of the Supreme Court of Colorado is that it fails to recognize the essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other. The flaw in respondent’s constitutional argument is that it would expand our previous line of “voluntariness” cases into a far-ranging requirement that courts must divine a defendant’s motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision.

The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause. Moreover, suppressing respondent’s statements would serve absolutely no purpose in enforcing constitutional guarantees. The purpose of excluding evidence seized in violation of the Constitution is to substantially deter future violations of the Constitution. Only if we were to establish a brand new constitutional right—the right of a criminal defendant to confess to his crime only when totally rational and properly motivated—could respondent’s present claim be sustained.

We have previously cautioned against expanding “currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries….” We abide by that counsel now. We hold that coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment. We also conclude that the taking of respondent’s statements, and their admission into evidence, constitute no violation of that Clause.

The judgment of the Supreme Court of Colorado is accordingly reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Today the Court denies Mr. Connelly his fundamental right to make a vital choice with a sane mind, involving a determination that could allow the State to deprive him of liberty or even life. This holding is unprecedented: “Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane….” Because I believe that the use of a mentally ill person’s involuntary confession is antithetical to the notion of fundamental fairness embodied in the Due Process Clause, I dissent.

The respondent’s seriously impaired mental condition is clear on the record of this case. At the time of his confession, Mr. Connelly suffered from a “longstanding severe mental disorder,” diagnosed as chronic paranoid schizophrenia. He had been hospitalized for psychiatric reasons five times prior to his confession; his longest hospitalization lasted for seven months. Mr. Connelly heard imaginary voices and saw nonexistent objects. He believed that his father was God, and that he was a reincarnation of Jesus.

At the time of his confession, Mr. Connelly’s mental problems included “grandiose and delusional thinking.” He had a known history of “thought withdrawal and insertion.” Although physicians had treated Mr. Connelly “with a wide variety of medications in the past including antipsychotic medications,” he had not taken any antipsychotic medications for at least six months prior to his confession. Following his arrest, Mr. Connelly initially was found incompetent to stand trial because the court-appointed psychiatrist, Dr. Metzner, “wasn’t very confident that he could consistently relate accurate information.” Dr. Metzner testified that Mr. Connelly was unable “to make free and rational choices” due to auditory hallucinations. He achieved competency to stand trial only after six months of hospitalization and treatment with antipsychotic and sedative medications.

The state trial court found that the “overwhelming evidence presented by the Defense” indicated that the prosecution did not meet its burden of demonstrating by a preponderance of the evidence that the initial statement to Officer Anderson was voluntary. The Supreme Court of Colorado affirmed after evaluating “the totality of circumstances” surrounding the unsolicited confession.

The absence of police wrongdoing should not, by itself, determine the voluntariness of a confession by a mentally ill person. The requirement that a confession be voluntary reflects a recognition of the importance of free will and of reliability in determining the admissibility of a confession, and thus demands an inquiry into the totality of the circumstances surrounding the confession.

Today’s decision restricts the application of the term “involuntary” to those confessions obtained by police coercion. Confessions by mentally ill individuals or by persons coerced by parties other than police officers are now considered “voluntary.” The Court’s failure to recognize all forms of involuntariness or coercion as antithetical to due process reflects a refusal to acknowledge free will as a value of constitutional consequence. This right requires vigilant protection if we are to safeguard the values of private conscience and human dignity.

Since the Court redefines voluntary confessions to include confessions by mentally ill individuals, the reliability of these confessions becomes a central concern. The instant case starkly highlights the danger of admitting a confession by a person with a severe mental illness. The trial court made no findings concerning the reliability of Mr. Connelly’s involuntary confession, since it believed that the confession was excludable on the basis of involuntariness. However, the overwhelming evidence in the record points to the unreliability of Mr. Connelly’s delusional mind. Mr. Connelly was found incompetent to stand trial because he was unable to relate accurate information, and the court-appointed psychiatrist indicated that Mr. Connelly was actively hallucinating and exhibited delusional thinking at the time of his confession. The Court, in fact, concedes that “[a] statement rendered by one in the condition of respondent might be proved to be quite unreliable….”

Moreover, the record is barren of any corroboration of the mentally ill defendant’s confession. No physical evidence links the defendant to the alleged crime. Police did not identify the alleged victim’s body as the woman named by the defendant. Mr. Connelly identified the alleged scene of the crime, but it has not been verified that the unidentified body was found there or that a crime actually occurred there. There is not a shred of competent evidence in this record linking the defendant to the charged homicide. There is only Mr. Connelly’s confession.

Minimum standards of due process should require that the trial court find substantial indicia of reliability, on the basis of evidence extrinsic to the confession itself, before admitting the confession of a mentally ill person into evidence. I would require the trial court to make such a finding on remand. To hold otherwise allows the State to imprison and possibly to execute a mentally ill defendant based solely upon an inherently unreliable confession.

I dissent.

* * *

In part because the Court found it difficult to regulate interrogations effectively using only the Due Process Clauses, the Justices were inspired to create the Miranda Rule, which imposes additional requirements on police. We turn to Miranda in our next chapter.