Lego v. Twomey: the improbable relationship between an obscure Supreme Court decision and wrongful convictions.

AuthorPepson, Michael D.


There is no greater failure of our criminal justice system than the conviction and imprisonment, or execution, of an innocent person. Notwithstanding the myriad constitutional and evidentiary principles designed to minimize the risk of wrongful convictions, empirical evidence has irrefutably shown that wrongful convictions have occurred, and continue to occur, with some regularity. (1) What causes wrongful convictions? And how can we minimize the frequency with which they happen?

In this Article, we will advance the argument that the underlying cause of many wrongful convictions is a relatively obscure Supreme Court opinion, which, in large measure, has escaped serious academic or judicial scrutiny: Lego v. Twomey. (2) And we will attempt to demonstrate that revisiting and overruling the Lego decision would significantly reduce the rate at which wrongful convictions occur.

Lego holds that the preponderance-of-the-evidence standard--the lowest standard of proof in all of our jurisprudence--is constitutionally sufficient to adjudicate the admissibility of allegedly involuntary confessions. (3) As a practical matter, this standard of proof often renders the suppression hearing--the evidentiary heating in which this admissibility determination takes place--a fait accompli. (4) (This is true afortiori because notwithstanding substantial evidence that police perjury is prevalent at such hearings, there is a judicial propensity toward accepting police officers' testimony at face value, (5) irrespective of how improbable it may be.) (6) This is a problem because if a defendant's confession is admitted into evidence--true or false, coerced or voluntary--empirical evidence strongly suggests that, in practice, the jury will almost invariably convict that defendant of whatever crime he or she is charged with, even if the putative confession is largely uncorroborated and the weight of the evidence suggests that the defendant is innocent. (7) In other words, whether the confession is admitted into evidence is usually outcome determinative: the preliminary fact finding that occurs in a voluntariness hearing functions as a de facto trial on the ultimate issue of guilt. (8) In effect, then, Lego's holding undermines In re Winship's (9) mandate that every fact necessary to prove the charged crime must be established beyond a reasonable doubt (10)--that is, the presumption of innocence--and, more importantly, its holding significantly increases the probability that an innocent person will be wrongfully convicted.

There is an enormous human cost associated with Lego and its progeny: actually innocent defendants are, in fact, wrongfully convicted as a direct result of the low burden of proof prescribed by the Lego Court and reiterated by its progeny. With the advent of DNA testing, the specter of an innocent person being wrongfully convicted of a crime based on a false confession is no longer merely an abstract or theoretical concern; it is a well-documented practical reality. In this Article, we deal not with civil remedies or the like but rather the moral--and constitutional--imperative against imprisoning, and perhaps even executing, innocent people.

This Article posits that, with respect to evidentiary challenges that implicate reliability concerns, raising the constitutional minimum standard of proof to beyond a reasonable doubt at suppression hearings is not only a constitutional imperative but, as a practical matter, perhaps the most effective means of minimizing wrongful convictions. To be sure, our proposed solution to the problem of wrongful convictions is quite pragmatic and has the advantage of simplicity. But the notion that, at least in some circumstances, a heightened burden of proof at suppression hearings is a constitutional imperative also finds support in the Lego decision itself.

The Lego decision is unusual because the Court qualified its holding with language suggesting that it may be provisional in nature and thus open to reconsideration if good cause could be shown. Specifically, the Lego Court implicitly invited reconsideration of its holding at a future time if substantial evidence accumulated demonstrating that federal constitutional rights have indeed been adversely affected as a result of determining admissibility by preponderant evidence. This Article argues that, since Lego, substantial empirical evidence has accumulated demonstrating a but-for causal connection between use of the preponderance standard at suppression hearings in which the admissibility of confessions are litigated and wrongful convictions. (11) In short, the authors argue that the Lego decision can be directly linked to the convictions of numerous actually innocent persons--thereby adversely affecting federal constitutional rights (12)--and, therefore, should be revisited.

In Part I, we will sketch the manner in which preliminary admissibility challenges are litigated. Part II attempts to frame the problem we seek to address through a comparative study of the different burdens of proof in American jurisprudence and their interplay with our society's values. Part III offers an in-depth critique of the Lego Court's analysis. In Part IV, we will explore the Lego majority's assertion that there is no correlation between the standard of proof used in preliminary admissibility determinations and the reliability of jury verdicts, or, put differently, that there is no correlation between preliminary and ultimate fact finding. Part V will argue that the Lego majority mistakenly conflated the various constitutionally based exclusionary doctrines, which, in part, led the Court to craft an unduly low standard of proof. Part VI advances the argument that there is good cause to revisit the Lego decision, and it explores the improbable dialectic between police perjury at suppression hearings, trial judges' frequent acceptance of suspect police testimony as dispositive on the issue of admissibility, the standard of proof used to determine admissibility, and the frequency with which wrongful convictions occur. In Part VII, we attempt to demonstrate that the use of a standard of proof that creates a substantial risk of wrongful convictions implicates criminal defendants' federal constitutional rights. In Part VIII, we argue that stare decisis principles do not require deference to the Lego decision. Finally, we conclude our argument and submit that raising the standard of proof in certain types of suppression hearings is an effective way to reduce the probability of wrongful convictions..


    1. Initiating the Motion

      Jurists and laymen alike generally recognize that they have rights that are implicated when they are stopped, searched, questioned, or arrested by law enforcement, but few unfamiliar with criminal law understand when and how those rights are enforced. If a defendant is charged with a crime and wants to argue that certain prosecution evidence was obtained in violation of his or her constitutional rights, when and how is the argument made? More importantly, what is the remedy for that violation? Before any litigation related to the admissibility of confessions actually begins, the defense must move to initiate the process. Enter motions to suppress and suppression hearings.

      Following the arrest and initial appearance of the defendant, and after he or she has either retained counsel or counsel has been appointed, (13) defense counsel will generally file written pre-trial motions. One of these pre-trial motions will often be a motion to suppress evidence. (14) It is in this written pleading that the defendant alleges a violation of his or her constitutional rights and preserves the issue for further review. (15) The allegations vary, and there may be several allegations in a single motion (e.g., the traffic stop was made without reasonable suspicion, the arrest or search was not supported by probable cause, and the ensuing confession was coerced). Here, the defendant is moving to preclude the prosecution from being able to use at trial evidence--e.g., tangible evidence (drugs, weapons, documents, etc.), statements of the defendant (written or oral), or in- and out-of-court identifications of the defendant (photo array, show-up, or lineup)--which may have been obtained through a violation of the defendant's constitutional rights. (16) The motion can be filed regardless of the defendant's guilt or innocence.

    2. The Suppression Hearing

      Perhaps as early as the arraignment, the court will have designated a pre-trial date for the motions hearing in which the motion to suppress will be litigated. (17) This all-important evidentiary hearing--the suppression hearing--can be succinctly described as "[a] ... proceeding in criminal cases in which a defendant seeks to prevent the introduction of evidence alleged to have been seized illegally." (18) But as the Supreme Court observed in Waller v. Georgia, (19) as a practical matter, "suppression hearings often are as important as the trial itself." (20) It should come as no surprise, then, that a ruling in a suppression hearing is often outcome determinative. (21) Put differently, whether a criminal defendant is ultimately convicted may turn not on his or her actual guilt or innocence but rather on whether the prosecution is permitted to adduce the evidence at issue as proof of guile.

      Far from a mere formality or empty procedural mechanism whereby "clearly" guilty defendants may escape punishment on so-called legal technicalities, (22) suppression hearings and the exclusionary remedies available at these hearings, inter alia, give substance to the constitutional guarantees that stand as a barrier to untrammeled State interference with our basic individual liberties and fundamental rights. (23) These pivotal hearings not only provide a forum for enforcing constitutional mandates but also safeguard the integrity of the fact finding process itself. (24)...

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