§ 16.1 Confessions

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 16.1 CONFESSIONS

§ 16.1-1 Introduction

Confessions and incriminating statements by criminal defendants can be critical evidence at trial and in pretrial proceedings. A large body of law has developed to ensure that the means by which confessions and incriminating statements are obtained, and the ways in which they are used, protect the constitutional rights of criminal defendants and the trustworthiness of confessions or statements admitted as evidence.

The United States Supreme Court has long held that the use of a coerced confession or incriminating statement to convict a defendant violates both the Due Process Clause of the Fourteenth Amendment to the United States Constitution (Brown v. Mississippi, 297 US 278, 286, 56 S Ct 461, 80 L Ed 682 (1936)) and the defendant's Fifth Amendment privilege against compelled self-incrimination (Bram v. United States, 168 US 532, 542-47, 18 S Ct 183, 42 L Ed 568 (1897), abrogated as stated in United States v. Fernandes, 285 Fed App'x 119 (5th Cir), cert den, 555 US 1049 (2008)). For that reason, many cases turn on whether a defendant's confession or incriminating statement was voluntary. Incriminating statements may be suppressed as involuntary either because they were the product of coercion or because the defendant's Miranda rights were violated. See Miranda v. Arizona, 384 US 436, 444, 86 S Ct 1602, 16 L Ed 2d 694 (1966). Admissions that are the product of coercion are inherently unreliable and, therefore, are not admissible for any purpose. Mincey v. Arizona, 437 US 385, 401-02, 98 S Ct 2408, 57 L Ed 2d 290 (1978). While the United States Constitution does permit an admission obtained without proper Miranda warnings, the same is not true under the Oregon Constitution. In State v. Finonen, 272 Or App 589, 605, 356 P3d 656 (2015), the Oregon Supreme Court held that statements taken in violation of Article I, section 12, of the Oregon Constitution are not admissible for impeachment. See § 16.1-9 (impeachment).

§ 16.1-2 Hearings on Admissibility of Confession

§ 16.1-2(a) Constitutional Right to Hearing

Under federal law, criminal defendants have a due-process right to a hearing outside the presence of the jury on the voluntariness of their confessions. Jackson v. Denno, 378 US 368, 393-94, 84 S Ct 1774, 12 L Ed 2d 908 (1964).

Oregon goes one step further, following a procedure sometimes called the Massachusetts rule. Under this procedure,

[t]he court in the absence of the jury should . . . hear all the evidence relevant to the voluntariness of the confession. The burden will rest on the state to prove to the satisfaction of the court that the confession was voluntary. If the court finds that the confession was voluntary, it shall note its finding in the record and admit the confession in evidence. Thereafter, . . . the state must again establish the voluntariness of the confession before the jury and the jury will hear all the evidence offered on that issue. The jury will be instructed that it has the duty to determine as a question of fact, first, whether the confession was voluntary, and second, if it was voluntary whether it was true, and that the issue of voluntariness shall be determined without regard to the truth or falsity of the confession.

State v. Brewton, 238 Or 590, 603, 395 P2d 874 (1964). In other words, the defense can contest the voluntariness of the confession at a hearing before trial.

The right to a hearing outside the presence of the jury on the admissibility of a confession is codified in OEC 104(3) (ORS 40.030(3)) and ORS 135.037(2)(c). Even if the trial judge finds that the confession was voluntary, the state must prove the voluntariness again before the jury, with instructions to disregard the confession if the jury finds that the confession was involuntary. UCrJI 1049 (jury instruction on the voluntariness of an admission or a confession).

In State v. Hart, 309 Or 646, 650-52, 791 P2d 125 (1990), the court held that a defendant who asks the trial judge to find a confession involuntary, alleging that the use of a polygraph was a coercive factor, cannot prevent the state from making statements regarding the polygraph examination even though polygraph evidence ordinarily is not admissible over a proper objection. The court also rejected the defendant's argument that the confession should be suppressed because he would be unable to fully develop his voluntariness argument before the jury without referring to the polygraph examination. Hart, 309 Or at 650-52. See also State v. Harberts, 315 Or 408, 413-19, 848 P2d 1187 (1993); State v. Underhill, 269 Or App 647, 346 P3d 1214, rev den, 357 Or 743 (2015) (finding that statements were voluntary under the Harberts test).

§ 16.1-2(b) Timing of Hearing

Although the defendant has an absolute right to a hearing outside the presence of the jury as to the voluntariness of the defendant's confession or statement (see § 16.1-2(a)), the parties may agree not to have a hearing if the admissibility of the statement is not at issue in the case. See State v. Blackford, 16 Or App 217, 219-20, 517 P2d 1196 (1974). A defendant's failure to request a hearing at the trial court level effectively waives the defendant's right to a hearing. Wainwright v. Sykes, 433 US 72, 86, 97 S Ct 2497, 53 L Ed 2d 594 (1977). See Pinto v. Pierce, 389 US 31, 33, 88 S Ct 192, 19 L Ed 2d 31 (1967).

If the defendant requests a hearing, it is normally held before trial and is often dispositive. ORS 135.037(1)-(2). Holding the hearing before trial preserves the state's right to appeal an adverse ruling. ORS 135.037(2)(c); ORS 138.045. If the trial court errs by failing to hold a voluntariness hearing and the defendant is subsequently convicted, the remedy is to grant the defendant a new trial or to hold a voluntariness hearing. If the court holds a hearing following a conviction and a reversal on appeal and finds the defendant's incriminating statements to be voluntary, the court may enter a new judgment of conviction based on the earlier jury verdict; if the court finds the statements to be involuntary, the state must decide whether to retry the defendant. State v. Ryan, 89 Or App 129, 132, 747 P2d 408 (1987), rev den, 305 Or 672 (1988); State v. Garcia, 88 Or App 169, 171, 744 P2d 1007 (1987).

PRACTICE TIP

Because of these issues, making a record before trial of any waiver of the voluntariness hearing is prudent.

§ 16.1-2(c) Burden of Proof at Hearing

Hearings regarding the voluntariness of a statement routinely determine two different voluntariness issues: (1) the voluntariness of the statement and (2) the voluntariness of the Miranda waiver. See Miranda v. Arizona, 384 US 436, 444, 86 S Ct 1602, 16 L Ed 2d 694 (1966). The state bears the burden of proof on each issue by a preponderance of the evidence. State v. Stevens, 311 Or 119, 136-37, 806 P2d 92 (1991); Lego v. Twomey, 404 US 477, 484-89, 92 S Ct 619, 30 L Ed 2d 618 (1972); Colorado v. Connelly, 479 US 157, 168-69, 107 S Ct 515, 93 L Ed 2d 473 (1986).

However, the voluntariness of the confession or incriminating statement is a separate issue from whether the defendant's statements were obtained consistent with the defendant's Miranda rights, and the court should address each issue separately at the hearing. See State v. Gable, 127 Or App 320, 324-26, 873 P2d 351, rev den, 319 Or 274 (1994) (the state failed to request pretrial rulings on both issues at the omnibus hearing).

Moreover, the standard for determining whether a statement is voluntary is not necessarily the same as the standard for determining whether a defendant knowingly waived the defendant's Miranda rights. See State ex rel. Juvenile Department of Washington County v. Deford, 177 Or App 555, 563-74, 34 P3d 673 (2001) (discussing differing standards); State v. Vasquez-Santiago, 301 Or App 90, 105-18, 456 P3d 270 (2019) (noting that an out-of-court confession is presumptively inadmissible and that the prosecution failed to rebut that presumption when the defendant had a very low IQ and was exposed to psychological pressure); State v. Rodriguez-Moreno, 273 Or App 627, 639, 359 P3d 532 (2015), rev den, 358 Or 611 (2016) (finding the defendant's statements voluntary when no undue pressure or threats were placed on him).

§ 16.1-2(d) Rules of Evidence at Hearing

Because the purpose of the hearing regarding the voluntariness of a statement is to determine the admissibility of evidence at a trial to be conducted at a later date, strict rules of evidence do not apply at the hearing. OEC 104(1) (ORS 40.030(1)); State v. Wright, 315 Or 124, 129, 843 P2d 436 (1992) (the hearsay rule is inapplicable at the hearing). See United States v. Matlock, 415 US 164, 172-74, 94 S Ct 988, 39 L Ed 2d 242 (1974).

The issue at the hearing is whether the confession was voluntary. Whether the defendant actually made the confession and whether the witness reported it accurately are jury issues to be decided at trial. State v. Dabney, 24 Or App 181, 184, 545 P2d 918 (1976).

§ 16.1-2(e) Foundation Questions at Hearing

The prosecutor commonly asks the following basic questions to establish the voluntariness of a defendant's statement:

(1) What were the date and place of the statement?

(2) Who was present?

(3) Were any threats or promises made to the defendant?

(4) Did the defendant appear to be under the influence of drugs or alcohol?

(5) Was any mental or physical disability noted?

COMMENT

In any contested, voluntariness hearing, the prosecutor should bring out every favorable circumstance supporting a finding of voluntariness. But see State v. Cohn, 43 Or App 913, 916, 607 P2d 729 (1979) ("it is not necessary that the state produce affirmative evidence that no threats, promises or other coercive tactics were employed, so long as the evidence is otherwise sufficient"); State v. Twitty, 85 Or App 98, 105, 735 P2d 1252, rev den, 34 Or 56 (1987) (the "record contains abundant evidence that defendant's taped statement was given voluntarily, after he was

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