7.4 Voluntariness Doctrine

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

7.4 VOLUNTARINESS DOCTRINE

7.401 In General. "From the 17th Century, Anglo-American law has been concerned that confession evidence be 'voluntary' in the sense that it is not obtained by coercive measures. The reasoning behind this concern has been two-fold: that involuntary statements are prone to be unreliable, and that coercion of statements is fundamentally unfair." ¹¹³ The common-law vol-untariness doctrine thus is derived from concern about both the evidentiary value of involuntary statements and due process. ¹¹⁴ Stated in brief, the volun-tariness doctrine requires that to be voluntary a statement must be, in the light of the totality of the circumstances surrounding it, "the product of an essentially free and unrestrained choice by its maker." ¹¹⁵ If the will of the maker is overborne by the interrogation, the statement is involuntary, and the statement and all evidence derived from it is inadmissible. ¹¹⁶

The analysis used to determine whether an individual acted as a state agent for Fourth Amendment purposes applies as well to situations involving an alleged extraction of an involuntary confession. Whether a person acted privately (in which case there is no constitutional issue) or as an agent of the government is a question of fact and turns on the degree of government participation in the private party's activities. ¹¹⁷

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It is particularly important to distinguish the voluntariness doctrine from Miranda v. Arizona and related matters. A statement can be involuntary notwithstanding complete apparent compliance with Miranda since, except insofar as Miranda is a logical descendant of the voluntariness doctrine, this doctrine is independent of Miranda. In 1968, Congress enacted Public Law 90-351 in response to the Miranda decision. Codified at 18 U.S.C. § 3501, "Admissibility of confessions," it provides that in federal criminal cases voluntariness is the ultimate issue. Whether the accused has been apprised of the right to remain silent is only one of five statutorily enumerated factors to consider in determining voluntariness:

(1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel[,] and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession. ¹¹⁸

Further, "[t]he presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession." ¹¹⁹

7.402 Coercion. The voluntariness doctrine is usually stated in terms of coercion: coerced statements are involuntary and thus inadmissible. Coercion for purposes of the doctrine is an unusually expansive term and includes physical and psychological coercion, threats, and promises—in short, anything that might result in the will of the individual being overborne. Thus, either physical torture or a promise of leniency in return for a statement may yield an involuntary statement.

Although the due process test suggests a case-by-case approach that looks for a causal connection between misconduct and a confession, analysis

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of the cases suggests that actually two separate rules are being applied. In cases where the misconduct is extreme, as in cases of physical brutality, the courts frequently find that the misconduct has rendered the statement involuntary per se. In all other cases, the courts test the facts to determine if the misconduct actually did overcome the will of the accused. It is virtually impossible to set forth criteria, other than torture, that result in automatic exclusion.

Although case-by-case consideration is necessary, some generalizations can be made. Physical coercion or threats thereof, ¹²⁰ lengthy periods of being held incommunicado, ¹²¹ and threats of worse treatment if a statement is not given are likely to...