An Honest Confession Is Good for the State
| Publication year | 1993 |
| Pages | 20 |
62 J. Kan. Bar Assn. September, 20 (1993). AN HONEST CONFESSION IS GOOD FOR THE STATE
September, 1993
Copyright (c) 1993 by the Kansas Bar Association, Topeka, Kansas; Roger W. Badeker
Two officers of the Wichita Police Department answered a call concerning a suspicious person. During the course of the investigation, the suspect pulled a revolver from his pocket and held it to the head of the officer. Police officer and suspect wrestled over control of the pistol. Not until the first officer's partner arrived did the police disarm the suspect. They "subdued him, placing him face down on the ground with his hands cuffed behind his back." [FN1]
While in this awkward and uncomfortable position, the suspect correctly identified himself and confessed that he had robbed a particular Wichita supermarket the night before. He also confessed that he had struck the night security guard on the head with a pistol. On cross examination at trial, the first officer admitted that he had held his pistol to the suspect's head while the suspect lay on the ground handcuffed and said, "After a deal like this, I should blow this punk's brains out." [FN2]
Without any preliminary determination, the trial court permitted the jury to hear the defendant's confession and related statements. The court dealt with the confession by issuing what it believed to be a curative instruction. On appeal, the Kansas Supreme Court held the confession to have been coerced and, therefore, not admissible into evidence. [FN3]
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The Tradition Against Coercion
The preceding case, decided in 1966, is a rare exception to what one finds reported in Kansas appellate cases. Miranda v. Arizona further refined the rules on interrogations, but it was not a radical change in the attitude toward coercion. [FN4] The issue of voluntariness is a common thread in cases dealing with extrajudicial statements. Coerced statements are rejected because they are not reliable. [FN5]
Statutory Safeguards in Kansas
Our statutes buttress the constitutional right against compelled self-incrimination. Kansas rules of criminal procedure emphasize pretrial resolution of admissibility questions. The defendant's Motion to Suppress is required to be in writing and must allege grounds for excluding any statements. The motion places the burden of proof on the prosecution. [FN6]
Should the admissibility of a confession or admission first become an issue during the trial, the hearsay rules apply. K.S.A. 60-460(f) lists the findings the trial court must make before admitting an extrajudicial statement into evidence.
Judicial Standards for Voluntariness
Case law in Kansas provides sufficient guidance to determine the voluntary nature of an extrajudicial statement. A 1991 case provides an excellent one-paragraph summary of the standards of proof and appellate review:
[I]n determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible shall be on the prosecution, and the required proof is by a preponderance of the evidence. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was voluntarily given, and admits the statement into evidence at the trial, this court accepts that determination if it is supported by substantial competent evidence. [FN7] This summary reaffirms a long line of cases which sets forth the same guidelines.
As to the determination of voluntariness, the Kansas Supreme Court has enumerated certain factors to be considered. Citing, with approval, a series of earlier cases reaching back to 1976 the court repeated the factors:
1. the duration and manner of the interrogation; 2. the accused's ability upon request to communicate with the outside world; 3. the accused's age, intellect, and background; and 4. the fairness of the officers in conducting the interrogation. [FN8] The overall test is whether the statement was "the product of the free and independent will of the accused." When there is "free choice to admit, deny or refuse to answer, the statement may be considered voluntary." [FN9] The procedure for testing voluntariness, whether pretrial or during trial, is the Jackson v. Denno hearing in which the prosecution is required to put on evidence concerning any extrajudicial statements. [FN10]
The Miranda Warning Requirement
Although the standards of voluntariness listed above do not mention a requirement to warn a defendant of his or her rights, such warning is imperative. It is not the purpose of this article to discuss Miranda v. Arizona. The requirement, however, must be noted. Without a proper warning, timely given, all else fails.
An extended analysis of custodial interrogation and the cases applying the rules and restrictions is contained in a 1990 Kansas case. The opinion concludes that the proper test for determining whether one is in custody is "the objective standard of a reasonable person." [FN11] In short, would a reasonable person in the same circumstances feel free to leave?
Even experienced investigators sometimes fail to give the warning. A statement taken by a KBI agent was not admitted into evidence because the accused was not properly warned. The agent did not tape the interview nor did he provide a written statement of rights, secure a written waiver of those rights, or advise the subject of his right to counsel. No exigent circumstances existed which might explain the lapse. The defendant, in fact, was in custody serving a sentence. [FN12]
Duration and Manner of Interrogation
The first factor listed by the court, duration and manner of interrogation, is the heart of any inquiry as to voluntariness. Two of the other factors, fairness and ability to communicate, are so closely related to the process of interrogation they seem encompassed by it. What is it that raises eyebrows on the appellate bench?
Coercion in any form immediately makes a statement suspect. Although coercion was alleged, none was found in the case of a convicted murderer who alleged psychological pressure was used to induce him to confess. A confession resulted after three interviews and a two-hour polygraph examination. Only after the polygraphic examination did the accused request an attorney and then executed a written waiver of counsel before a magistrate so
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that he could talk further with his interrogators. On appeal the defendant alleged that the police subjected him to psychological pressure by 1) being sympathetic rather than confrontational, 2) denying him communication...
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