Excluding coerced witness testimony to protect a criminal defendant's right to due process of law and adequately deter police misconduct.

• Author: Sheridan, Katherine

Introduction I. Police Coercion and Due Process A. Origins of Confession Jurisprudence B. Due Process Protection C. Custodial Interrogations and Police Compulsion D. The Exclusionary Rule and Standing 1. The Due Process Exclusionary Rule 2. The Self-Incrimination Exclusionary Rule 3. The Reasonable Search and Seizure Exclusionary Rule. II. The Due Process Debate on Coerced Witness Testimony III. Witness Coercion in a Criminal Trial--A Constitutional Wrong. A. Exclusion of All Coerced Witness Statements Regardless of Reliability B. Voluntariness of a Witness's Statement is the Correct Standard of Due Process C. Due Process Violations Are a Greater Harm Than Other Constitutional Violations in the Criminal Procedure Context D. The Policy Considerations that Support the Exclusion of Coerced Confessions Will be More Completely Achieved by Excluding Coerced Witness Statements Conclusion INTRODUCTION

Colin Warner served twenty years in jail for a murder he did not commit--his conviction based entirely on the testimony of a scared fourteen- year-old boy who was coerced by police to implicate Warner. (1) Mario Hamilton was shot and killed in April of 1980 in broad daylight near the Erasmus Hall High School in Flatbush, Brooklyn. (2) Thomas Charlemagne stated that he had seen what happened, though in fact he had not. (3) Charlemagne was the only witness or lead that the police had on the killer, so they immediately brought him and the victim's fifteen-year-old brother Martell (who was with Charlemagne) down to the station for questioning. (4)

Detectives presented Charlemagne with mug shots, including one of Colin Warner, (5) demanded an identification of the shooter, and grilled him for answers. (6) At one point Charlemagne stated he had not seen the gun, but the police hung on his initial words--"I saw what happened"--and yelled back that there must have been a gun. (7) Nearly fourteen hours after the start of the interrogation, Charlemagne ended the questioning the only way he knew how and pointed--at random--to Warner's picture. (8) He went on to elaborate on the lie, claiming the killer had spoken to him, and provided the details that the police fed him--that it was a drive-by and that there was passenger in the car. (9) Meanwhile, Martell, still grieving over the news of his older brother's murder, sat listening to the relentless interrogation and was released only after Charlemagne cooperated. (10)

The next day, police visited Martell at his home, presented him with four photos, and asked if he recognized any of the men. (11) Martell said no over and over again, until the officer pushed one photo above the others, and asked specifically about Warner. (12) Martell stated that "maybe he recognized him," which was enough to satisfy police that they had the right person--despite lacking any other evidence. (13) Based on Charlemagne's testimony (14) and Martell's corroboration, the State successfully convicted Colin Warner of second-degree murder, resulting in a sentence of fifteen years to life. (15)

The wrongful conviction of Colin Warner adeptly illustrates the problems caused by police coercion that will be subsequently explored in this Note. Such coercive practices manufacture inherently unreliable evidence and are revolting to the sense of justice that Americans expect and demand from the United States' legal system.

In many criminal cases there is a lack of physical evidence despite the most sophisticated criminal forensic sciences, and the prosecution must build a case on statements made by the defendant or a witness. (16) Predictably, criminal offenders and their cohorts do not ordinarily admit to wrongdoing or divulge incriminating information. (17) In turn, police interrogations are designed to persuade individuals to share information about the crime. (18)

Indeed, police interrogations resulting in admissible statements promote the government's strong interest in investigating and prosecuting crimes. (19) As John Henry Wigmore noted, confessions are usually "the highest sort of evidence." (20) That is only true, however, where the confession is reliable as "trustworthy evidence of guilt." (21)

The government's ability to pursue its interest in law enforcement is checked by the right of an individual not to be compelled to testify against himself (22) or to be persuaded to confess after enduring physical or extreme psychological pressure. (23) The United States criminal justice system rests on the underlying principle that "ours is an accusatorial and not an inquisitorial system--a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused." (24) Thus, the Supreme Court demands that police refrain from using coercive interrogation techniques to elicit involuntary confessions from a criminal defendant. (25) As a result of this rule, a defendant in a criminal case has a right to contest the voluntariness of a statement he has given to the police, and such statements are excluded if involuntary. (26)

Whether this right extends to allow defendants to object to the admittance of an involuntary statement coerced from a witness is debated by judges across the country and remains unresolved by the Supreme Court. (27) Such a right would have allowed Colin Warner to suppress Thomas Charlemagne's statements at his trial, and avoid a wrongful conviction. (28) Today, several courts recognize this expansion, finding that where a coerced witness's statement is entered into evidence against the defendant, there is a violation of the defendant's right to due process of law, and thus exclusion is the warranted remedy. (29) Other courts, however, explicitly reject this notion, finding that it is an evidentiary matter, rather than a constitutional concern, and therefore hold that defendants have no standing to contest the alleged violations of the witness's rights. (30) In the absence of a Supreme Court ruling on the issue, courts have no binding authority to draw from and, as a result, the due process rights of a criminal defendant depend on the jurisdiction in which he is prosecuted.

In early cases, the Supreme Court required exclusion of involuntary confessions primarily on the grounds that they were not reliable, and therefore could not serve as the basis for a criminal conviction requiring proof of guilt beyond a reasonable doubt. (31) Over time, however, courts became more concerned with unfair police interrogation practices, even where they produced reliable statements. (32) The purpose of exclusion thus became deterring the police from using coercive interrogation techniques that are abhorrent to an individual's constitutional rights. (33) Achieving this goal requires excluding coerced statements made by both defendants and third parties.

Nevertheless, some scholars and judges argue that exclusion is falling out of favor, and should be abolished rather than expanded. (34) While the exclusionary rule is riddled with exceptions as it relates to both unreasonable search and seizure and self-incrimination violations, the same is not true as it applies to due process violations. Thus, these arguments against the exclusionary rule do not withstand scrutiny when made in reference to the extension of the principle to the inadmissibility of coerced witness statements. The exclusionary rule establishes an absolute bar on the admissibility of coerced statements made by the defendant, suggesting that the judiciary finds these due process violations most troubling. It stands to reason that all coercive statements pose a similarly severe threat to due process rights. Nevertheless, the Court has not yet addressed whether the Due Process Clause also protects defendants from the admission of an involuntary statement made by a witness--this Note argues that it must.

Part I considers the historical background of the use of involuntary statements under the Due Process Clause, following the development of jurisprudence in this area to present day. Specifically, this section addresses the evolution of the Court's underlying justifications for the exclusion of coerced confessions as an analytical basis for the arguments made in Part III. Part II lays out the approach taken by various state, district, and circuit courts that have addressed this matter, and details how those courts employ different Due Process Clause analyses to reach divergent conclusions. Finally, Part III explains why involuntary witness statements should be excluded under the Due Process Clause in criminal trials.

1. POLICE COERCION AND DUE PROCESS

   Because the Supreme Court has yet to address the constitutionality of government use of coerced witness testimony against a criminal defendant, it is necessary to consider established legal principles upon which courts rely when faced with this unsettled issue. Thus, the following topics will be examined: the origins of confession jurisprudence; the modem conception of confession jurisprudence; and the exclusionary rule and standing as they relate to due process, self-incrimination, and search and seizure violations.

   A. Origins of Confession Jurisprudence

   The early common law rule that governed the admissibility of confessions was simple: confessions were admissible at trial without any restriction, even if the statement was obtained by torture. (35) Over time, restrictions were put into place to limit this rule as courts aimed to regulate the reliability of evidence entered into a criminal trial to prove the defendant's guilt. (36)

   The common law rule of evidence, deriving from both English and U.S. jurisprudence, deems involuntary confessions to be "inherently unreliable"--a term to express the idea that when a defendant is coerced, his contemporaneous statements are not a product of his free choice, but rather, a reaction to the coercion itself: the defendant confesses to escape an aversive interrogation, secure a...