§ 23.05 PRIVILEGE AGAINST SELF-INCRIMINATION IN THE POLICE INTERROGATION CONTEXT

• Jurisdiction: United States

§ 23.05. Privilege against Self-incrimination in the Police Interrogation Context¹¹⁹

[A] General Principles

[1] Original, Bright-Line Approach

In 1897, the Supreme Court in Bram v. United States¹²⁰ announced that the Fifth Amendment privilege against compelled self-incrimination "was but a crystallization of the [common law] doctrine relative to confessions." Thus, the common law involuntariness rule came under the umbrella of the Fifth Amendment. After Bram, compelled statements were inadmissible in federal criminal trials as a matter of constitutional law. Bram, moreover, announced a strict, virtual bright-line, definition of "involuntariness":

[A] confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. . . . A confession can never be received in evidence where the prisoner has been influenced by any threat or promise.¹²¹

At the time of Bram, the Fifth Amendment privilege against compelled self-incrimination was not considered a fundamental right. Therefore, Bram did not apply to the states. In 1964, however, the Court ruled in Malloy v. Hogan¹²² that the Fifth Amendment self-incrimination privilege is a fundamental right applicable to the states through the Fourteenth Amendment. Consequently, a defendant in a state trial may now assert the privilege, and not simply cite general due process principles, as a basis for excluding a coerced confession.

[2] Modern Totality-of-Circumstances Test: Two Constitutional Provisions (and Standards) Become One¹²³

Notice the text of the Fifth Amendment: It prohibits compelled self-incrimination. The Due Process Clause, as interpreted by the Supreme Court, prohibits the admissibility of involuntary confessions. Are these two standards—"compulsion" and "involuntariness"—the same?

Initially, the federal self-incrimination cases and state due process decisions may have been traveling down different paths. As noted above, Bram v. United States announced a strict test for determining what constitutes compulsion in the interrogation process, and described it almost as a bright-line rule. In contrast, the early due process cases seemingly required proof that the suspect's will was broken by the police, a factor not required under Bram, and were (and continue to be) decided on a case-by-case totality-of-the-circumstances basis.

So, the standards were not identical. Consequently, once Malloy v. Hogan incorporated the privilege against compelled self-incrimination to the states, one might have expected state defendants contesting interrogation practices to assert the privilege against self-incrimination, rather than due process, on the ground that the strict Bram test offered stronger, and more certain, protection than the more flexible due process standard. One might have predicted the Due Process Clause standard to fall into disuse.

An historical quirk in the interrogation field, however, yielded a different story. During the nearly seven-decade period in which the Fifth Amendment privilege applied exclusively in the federal courts (from the time of Bram to Malloy), the Supreme Court decided fewer than a dozen cases dealing with coerced confessions in federal trials. Meanwhile, during the less than 30 years in which state confessions had to be resolved according to due process principles (from Brown v. Mississippi¹²⁴ to Malloy), the high court decided no fewer than t35 coerced-confession cases.¹²⁵ As a result of this disparity, the Court had many opportunities to focus on the Due Process Clause voluntariness standard; in contrast, the Fifth Amendment self-incrimination privilege cases were "low-visibility events."¹²⁶ Consequently, as one scholar reported, "Bram had little impact [on interrogation law] . . . and, as late as 1951, it was not clear whether the exclusion of involuntary confessions in federal cases was based on the Fifth Amendment's self-incrimination provision, the Fifth Amendment's due process provision, or the common law confession rule."¹²⁷

We come, therefore, to an irony: The process of incorporating federal rights to the states tended to work in an opposite direction than one might have expected: state courts did not move to the originally more vigorous federal standard; federal courts moved toward the due process standard! Indeed, in Arizona v. Fulminante,¹²⁸ the Supreme Court observed that the Fifth Amendment self-incrimination bright-line rule of Bram "does not state the standard for determining the voluntariness of a confession."¹²⁹ And, in Dickerson v. United States,¹³⁰ in the Court's historical account of state and federal confession law, it stated that "we evaluate[] the admissibility of a suspect's confession under a [totality-of-circumstances] voluntariness test," which it stated had two constitutional bases, the Fifth Amendment privilege against compelled self-i ncrimination and the Due Process Clause. More recently still, the Court has characterized the two constitutional provisions as reflecting similar policies, and resulting in "parallel" and "unifying" tests.¹³¹

In short, in the interrogation field, there is no legal difference today between a "compelled" confession under the Fifth Amendment and an "involuntary" one in the due process framework.¹³² Bram has given way to the totality-of-circumstances approach described in detail in Chapter 22.¹³³ Therefore, the principles set forth there should be incorporated by reference here.¹³⁴

[B] Remedies for Violation of the Fifth Amendment Privilege

[1] Requirement of State Action

As explained elsewhere,¹³⁵ the Supreme Court in Colorado v. Connelly¹³⁶ held that "[o]ur '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." There is no doubt that this same principle — a requirement of official overreaching—applies to Fifth Amendment self-incrimination claims.

[2] Standing to Raise Claim

As with "involuntary confession" cases under the Due Process Clause,¹³⁷ there is no United States Supreme Court case dealing directly with the issue of standing to raise a Fifth Amendment privilege against...