§ 22.02 DUE PROCESS CLAUSE: THE VOLUNTARINESS REQUIREMENT

• Jurisdiction: North Carolina

§ 22.02. Due Process Clause: The Voluntariness Requirement

[A] General Principles

[1] Rule

A statement obtained involuntarily from a suspect, by a law enforcement agent,⁹ is inadmissible at the defendant's state criminal trial pursuant to the Fourteenth Amendment Due Process Clause.¹⁰ As explained more fully in subsection [B], the voluntariness of a confession is determined based on the totality of the circumstances. There is no bright-line rule for drawing the voluntariness/involuntariness distinction.

Language can be found in some of the Supreme Court's interrogation-law cases that might suggest that the Due Process Clause is not violated, no matter how egregious the police conduct, if the statements obtained from a suspect are not used against him at his criminal trial.¹¹ That is, it seemed arguable until recently that the "involuntariness" Due Process Clause prohibition was exclusively a trial right. More recently, however, the Court ruled that police conduct resulting in an involuntary confession can, at least sometimes, violate due process even if the confession is not used at a criminal trial. In Chavez v. Martinez,¹² eight justices, in three separate opinions,¹³ stated that a victim of police brutality could bring a civil action based on a claimed violation of the Due Process Clause, even though the statements were not used at the suspect's criminal trial (in fact, no charges were ever brought in the case).

[2] Rationale of the Voluntariness Requirement¹⁴

The Supreme Court has stated that a "complex of values"¹⁵ underlie the voluntariness requirement of the Due Process Clause.¹⁶ What are those values? First, and most obviously, there is a heightened risk of false confessions — and, thus, of convicting innocent persons — if the police are permitted at trial to use statements obtained from suspects through coercive means.¹⁷

But, even if there is independent evidence corroborating a confession that was obtained involuntarily — so the risk of convicting an innocent person is reduced — the Supreme Court has stated that "[t]he aim of the [voluntariness] requirement . . . is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false."¹⁸ Thus, the Court has concluded that an involuntary statement should also be excluded at trial because, quite simply, the police should "obey the law while enforcing the law."¹⁹

A third and related reason for the voluntariness requirement is that use of statements that have been obtained through torture or other forms of egregious governmental conduct is "so offensive to a civilized system of justice that [it] must be condemned."²⁰

Fourth, "ours is an accusatorial and not an inquisitorial system."²¹ One principle of an accusatorial system is that "the mind, as the center of the self, may not be pressed by the government into an instrument of its own destruction."²² Indeed, the use of coercion to obtain a confession "was the chief inequity, the crowning infamy of . . . the Inquisition. . . ."²³

Fifth, values of human dignity, personal autonomy and mental freedom support the premise that a person should not be subjected to abusive governmental conduct, including that which results in an involuntary confession. Finally, of course, beyond the moral principles of protecting human dignity is the pragmatic, utilitarian justification: exclusion of a confession obtained involuntarily may deter police misconduct and reduce the likelihood of future abuses.²⁴

[B] The Voluntariness Requirement in Greater Detail²⁵

[1] Critical Overview

In Bram v. United States,²⁶ the Supreme Court's first effort to define "involuntariness" in a constitutional context, the Court stated that a confession "must not be extracted by any sort of threat or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." The Court warned that because "the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner," it would hold a confession inadmissible "if any degree of influence" was exerted.

This bright-l ine rule has not prevailed. The voluntariness of a confession is now assessed—whether a court applies the Due Process Clause or the Fifth Amendment privilege against compulsory self- i ncrimination²⁷—from "the totality of all the surrounding circumstances —[considering] both the characteristics of the accused and the details of the interrogation."²⁸

There are at least two problems with this standard. First, as with any rule that must be determined from the totality of the circumstances, the police receive less guidance than if they were required to obey a bright-line rule, and courts can become overwhelmed adjudicating highly fact-sensitive claims of coercion. Second, and perhaps more critically, the Supreme Court has wavered between what might be characterized as an empirical approach to the voluntariness question and a normative approach²⁹ — and when the Court has followed the latter approach, it has left unclear what the normative standard is.

To explain: The Supreme Court often applies — or, at least, purports to apply—the "overborne will" standard. Thus, it has described the issue of voluntariness this way:

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 . . . confession [is inadmissible].³⁰

The implication of this language is that voluntariness is an empirical issue. It is as if a court can look into the suspect's psyche or soul and determine whether he "freely chose" to confess or, instead, had his will overborne by the police. As the Court in Bram acknowledged, however, there is no practical way to measure the influence of a particular police practice on a particular suspect. Ultimately, the issue of coerced confessions, like the defense of duress in the substantive criminal law,³¹ should be seen as presenting a normative question: How much, and what kind of, pressure placed on a person is morally permissible? Or, put another way, "how much mental freedom should be afforded the suspect?"³²

Ultimately, a normative analysis is inevitable. On the one hand, all confessions, even those obtained by torture, are "free" in the sense that the speaker preferred confessing to the continuation of the suffering. Professor George Thomas has observed that ([i]f. . . 'voluntary' means only that one exercises choice between alternatives, then . . . '[a]ll conscious verbal utterances are and must be voluntary.' "³³ If that were the standard, all confessions would be admissible. On the other hand, nearly all confessions are "unfree" in the sense that they are the result of pressures on the individual's will, and surely few would disagree with the view that any police interrogation, no matter how benign, exerts significant pressures on the individual undergoing questioning. If "voluntary" meant the absence of any influence, or at least the absence of any external influence to confess (thus, allowing for the possibility of "the conscience-stricken urge to 'rid one's soul of a sense of guilt' "³⁴), then (almost) no confessions would be admissible. So, the answer must be somewhere in between, and the issue must come down to this: How "free" is "free enough"?

The Supreme Court has conceded that voluntariness is "an amphibian"³⁵ notion. Although the determination of voluntariness requires a finding of the "crude historical facts"³⁶ regarding the acquisition of the suspect's confession, the ultimate issue is a legal one.³⁷ In resolving the legal issue, the Court's decisions inevitably "reflect a . . . recognition that the Constitution requires the sacrifice of neither security nor liberty."³⁸ That is, the Court has balanced society's perceived need for confessions against the importance of ensuring that the interrogation process does not undermine the "complex of values" supporting the Due Process Clause and Fifth Amendment privilege against self-incrimination.

The result of this balancing process, not surprisingly, has been a collection of Supreme Court cases expressing conflicting value judgments, and results that are not always easily explained (or explained away). As a practical matter, the totality-of-the-circumstances test makes "everything relevant but nothing determinative."³⁹ The typical involuntary-confession case is one "in which the court[] provide[s] a lengthy factual description followed by a conclusion . . . , without anything to connect the two."⁴⁰

[2] Some Reflections on the Use of Torture in the Post-9/11 World⁴¹

As discussed below, the closest the Supreme Court has come to a bright-line rule in the Due Process Clause interrogation cases is the assertion that actual or threatened use of violence to obtain a statement from a suspect violates the Constitution.

One may inquire at the outset: What constitutes "violence" or "torture"? Consider, for example, the procedures used by American military and civilian officers in Iraq's infamous Abu Ghraib prison during the American occupation of Iraq. The procedures included placement of hoods over the heads of suspects, sleep deprivation, use of strobe lights and loud music, the shackling of suspects "in awkward positions for long hours and manipulating levels of pain medication,"⁴² in order to "soften up" detainees for later interrogation. Are these procedures, individually or collectively, "torture"?

Assuming that at least some of these techniques constitute torture—at least a few detainees were allegedly beaten to death in the prison,⁴³ so these cases would certainly satisfy the "violence" standard—does it follow that such methods should always be forbidden by the Constitution? The answer seemed obvious to virtually everyone in the twentieth century. However, in the...