Chapter 5 - §2. Elements for exclusion

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§2. Elements for exclusion

A defendant's statement will be excluded from evidence under the Fifth or Fourteenth Amendment if the statement was made involuntarily. See Dickerson v. U.S. (2000) 530 U.S. 428, 433. A statement is made involuntarily if (1) it was the result of government action, (2) the action was coercive, and (3) the action was the proximate cause of the statement.

§2.1. Government action. For a defendant's statement to be subject to exclusion for involuntariness, a government actor—most commonly a police officer—must have taken some action in her official capacity that caused the defendant to make the statement in question. See, e.g., People v. Williams (2013) 56 Cal.4th 165, 184-85 (threat made by prison clerk to D was not considered action by state actor; statement was made after clerk was removed from duty based on personal connection to D's case). Thus, conduct by a government actor is a "necessary predicate" to a finding of involuntariness; without it there can be no claim. Colorado v. Connelly (1986) 479 U.S. 157, 167; People v. McWhorter (2009) 47 Cal.4th 318, 347; see People v. Sanchez (2019) 7 Cal.5th 14, 50. For example, if a defendant provides a statement to the police because he is experiencing hallucinations that interfere with his normal capacity to make free and rational choices or because he has internal urges that overcome his better judgment to remain silent, the statement is not considered "involuntary" in the constitutional sense. See Connelly, 479 U.S. at 162-64. And if the defendant makes a statement caused by his own psychosis, mental condition, or voluntary actions (e.g., the ingestion of alcohol or drugs), the statement will not be considered involuntary because there is no government action. See, e.g., id. at 163-64 (confession was not involuntary when police did nothing to exploit D's asserted psychological vulnerabilities); U.S. v. Eide (9th Cir.1989) 875 F.2d 1429, 1434 (confession was not involuntary when made under influence of drugs and to private citizen); People v. Smith (2007) 40 Cal.4th 483, 502 (confession was not involuntary when police were unaware of and did not exploit D's psychological vulnerabilities); People v. Murtishaw (1981) 29 Cal.3d 733, 754 (confession was not involuntary when D's lack of food or sleep was not caused by police).


Before the U.S. Supreme Court's decision in Connelly and the adoption of Proposition 8 (Victims' Bill of Rights) in 1982, California courts had uniformly held that all involuntary confessions—whether procured from pressure exerted by government actors or private citizens—were inadmissible. People v. Haydel (1974) 12 Cal.3d 190, 197-98; People v. Berve (1958) 51 Cal.2d 286, 293, overruled on other grounds, People v. Cahill (1993) 5 Cal.4th 478; see People v. Whitt (1984) 36 Cal.3d 724, 746 n.16 (if statements had been coerced, they would have been inadmissible regardless of informant's status as private citizen). See "Exceptions to admissibility," ch. 1, §3.2 (discussing Proposition 8). After Connelly and the adoption of Proposition 8, it is unlikely that statements coerced by a private citizen would be inadmissible today under the Fifth or Fourteenth Amendment. Under both Amendments' protection against the admission of involuntary statements, the U.S. Supreme Court has held that government action is an essential prerequisite. See Connelly, 479 U.S. at 166 (private-party coercion is not a due-process concern); Oregon v. Elstad (1985) 470 U.S. 298, 304-05 ("official coercion" is required for Fifth Amendment protection); People v. Molano (2019) 7 Cal.5th 620, 663 (Fifth Amendment is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion). An unpublished opinion from the Fourth District Court of Appeal has stated in dicta that after the decision in Connelly and the adoption of Proposition 8, California no longer recognizes coercion by a private citizen as a basis for excluding a confession on constitutional grounds. People v. Pitones (4th Dist.2013) No. G045991, 2013 WL 1883261 (unpub.; 5-7-13). Such coerced confessions, however, can be excluded under Evid. C. §352 if they are so unreliable or untrustworthy that their probative value is outweighed by their prejudicial impact. See People v. Cox (4th Dist.1990) 221 Cal.App.3d 980, 986 n.3. See "Discretionary Exclusion Under Evid. C. §352," ch. 6, §1 et seq.

§2.2. Action was coercive. For a defendant's statement to be subject to exclusion for involuntariness, the action taken by police must have overcome the defendant's will to such a degree that the defendant's statement was not the product of rational intellect and free will. See Lynumn v. Illinois (1963) 372 U.S. 528, 534; People v. Spencer (2018) 5 Cal.5th 642, 672; People v. Linton (2013) 56 Cal.4th 1146, 1176; People v. McWhorter (2009) 47 Cal.4th 318, 346-47. This occurs when the defendant's statement is the product of either physical or psychological coercion. Rogers v. Richmond (1961) 365 U.S. 534, 540; U.S. v. Price (9th Cir.2019) 921 F.3d 777, 792; People v. Sanchez (1969) 70 Cal.2d 562, 572; People v. Lopez (2d Dist.1979) 99 Cal.App.3d 754, 764; see, e.g., Bradford v. Davis (9th Cir.2019) 923 F.3d 599, 617 (D's statement was not involuntary despite clear invocation of right to counsel and officers' violation of his Miranda rights; no coercion was employed by officers); People v. Storm (2002) 28 Cal.4th 1007, 1035 (D's statement was not involuntary when tactics employed by interrogator did not involve actual physical or psychological coercion); People v. Cooper (2d Dist.2019) 37 Cal.App.5th 642, 651-52 (D's statements made during administration of field sobriety test were not involuntary and were not made in response to questioning by officer). In this context, coercive police conduct can include physical violence, threats, direct or implied promises, or any other exertion of improper influence by officers to extract a statement. People v. Battle (2021) 11 Cal.5th 749, 790.

1. Physical coercion. When a statement is procured by actual physical violence or threat of physical violence, the statement is generally considered involuntary per se. U.S. v. Haswood (9th Cir.2003) 350 F.3d 1024, 1027; U.S. v. Jenkins (9th Cir.1991) 938 F.2d 934, 938; see, e.g., Brown v. Mississippi (1936) 297 U.S. 278, 282-83 (black Ds were hung and brutally whipped until they confessed). The U.S. Supreme Court has stated that "[t]he tendency of the innocent, as well as the guilty, to risk remote results of a false confession rather than suffer immediate pain is so strong that judges long ago found it necessary to guard against miscarriages of justice by treating any confession made concurrently with torture or threat of brutality as too untrustworthy to be received as evidence of guilt." Stein v. New York (1953) 346 U.S. 156, 182, overruled on other grounds, Jackson v. Denno (1964) 378 U.S. 368. Thus, in situations where confessions are made substantially concurrently with physical violence or threats of physical violence, there is no need to weigh or measure the effects that such acts have on the defendant's will because any statements will be considered involuntary. Jenkins, 938 F.2d at 939; see Stein, 346 U.S. at 182.

2. Psychological coercion. When a statement is procured by psychological coercion, the test for determining whether the statement was involuntary is whether the defendant's will was overcome in light of the totality of the circumstances. Ortiz v. Uribe (9th Cir.2011) 671 F.3d 863, 869; see People v. Case (2018) 5 Cal.5th 1, 25; People v. Wall (2017) 3 Cal.5th 1048, 1065-66; People v. Winbush (2017) 2 Cal.5th 402, 452; People v. Duff (2014) 58 Cal.4th 527, 555; McWhorter, 47 Cal.4th at 347; People v. Thompson (1990) 50 Cal.3d 134, 166. When evaluating the totality of the circumstances, courts look at the details surrounding the interrogation and the characteristics of the defendant when the statement was made. Withrow v. Williams (1993) 507 U.S. 680, 693; Greenwald v. Wisconsin (1968) 390 U.S. 519, 521; Clewis v. Texas (1967) 386 U.S. 707, 711-12; People v. Sanchez (2019) 7 Cal.5th 14, 50; McWhorter, 47 Cal.4th at 347; People v. Perdomo (2d Dist.2007) 147 Cal.App.4th 605, 614. Courts will then weigh the circumstances of the pressure applied by the police against the defendant's power of resistance. Dickerson v. U.S. (2000) 530 U.S. 428, 434; Stein, 346 U.S. at 185; see People v. Mendez (2019) 7 Cal.5th 680, 699 (even without physical coercion, there can be instances where harshness of interrogation must be considered). Courts have prohibited only those psychological tactics which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable. People v. Cunningham (2015) 61 Cal.4th 609, 643.

(1) Relevant factors. Courts have developed a list of common factors they look at to evaluate the details of the interrogation and the characteristics of the defendant. Generally, a determination of involuntariness will not be based on any one factor but on all the factors combined. See Sanchez, 7 Cal.5th at 50; People v. Johnson (4th Dist.2019) 32 Cal.App.5th 26, 55-56.

(a) Details surrounding interrogation. The court will consider the details surrounding the interrogation, including the following:

[1] The coercion applied by police. Withrow, 507 U.S. at 693; Cook v. Kernan (9th Cir.2020) 948 F.3d 952, 968-69; Winbush, 2 Cal.5th at 452; People v. Dykes (2009) 46 Cal.4th 731, 752. See "Types of psychological coercion," ch. 5-B, §2.2.2(3).

[2] The length of the interrogation. Withrow, 507 U.S. at 693; Cook, 948 F.3d at 968-69; Sanchez, 7 Cal.5th at 50; Winbush, 2 Cal.5th at 452; Dykes, 46 Cal.4th at 752; see Wall, 3 Cal.5th at 1067; see, e.g., Darwin v. Connecticut (1968) 391 U.S. 346, 349 (D was interrogated for 48 hours and was denied access to counsel); Clewis, 386 U.S. at 711-12 (D was interrogated for nine days...

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