§ 22.01 HISTORICAL DEVELOPMENT

• Jurisdiction: United States

§ 22.01. Historical Development¹

[A] Common Law

In early English common law, all statements of a suspect, even those obtained by torture, were admissible at trial. By the end of the eighteenth century, however, the rule had changed, and it was determined that "no credit" was to be given to "a confession forced from the mind by the flattery of hope, or by the torture of fear."² This rule was applied strictly against the government. Over the years, as interpreted by English courts, confessions gathered by brutality or threat of force were inadmissible at a defendant's criminal trial, but so too were statements induced by promises not to prosecute or to seek leniency in sentencing.

A crucial purpose of the English common law exclusionary rule was to remove from consideration by the factfinder any statement obtained in a manner likely to produce a false confession, which in turn might result in the conviction of an innocent person. With that goal in mind, English courts phrased the issue to be whether the defendant's statement was made voluntarily or involuntarily. Over time, the involuntariness of the confession procedure itself became the basis for its exclusion, "irrespective of any attempt to measure its influence to cause a false confession."³

American state and federal courts, including the Supreme Court, generally followed the English lead. In Hopt v. Utah,⁴ for example, the Supreme Court adopted for the federal courts the common law rule of evidence regarding confessions. The Court stated in Hopt that a "confession, if freely and voluntarily made, is evidence of the most satisfactory character." However, it warned that a confession is inadmissible if it is obtained "because of a threat or promise by or in the presence of [one in authority], which, operating upon the fears or hopes of the accused . . . deprives him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law."

[B] Constitutional Law

In 1897, the Supreme Court announced in Bram v. United States⁵ that the Fifth Amendment privilege against compelled self-incrimination "was but a crystallization of the [common law] doctrine relative to confessions." As a consequence, Bram brought the common law rule under the umbrella of the Fifth Amendment: thereafter, compelled statements were inadmissible in federal criminal trials as a matter of constitutional law.

At the time of Bram, the Fifth Amendment privilege against compelled self-incrimination...