Suppressing Involuntary Confessions
| Author | Deja Vishny |
| Pages | 485-556 |
11-1
CHAPTER 11
Suppressing
Involuntary Confessions
I. INTRODUCTION
The previous chapters focused on how police interrogate suspects and on suppressing confessions because they do
not comport with the requirements of the Fifth Amendment. However, even when police adhere to the Fifth Amendment
and Miranda requirements, other grounds exist to suppress a confession. Long before the Miranda decision, the U.S.
Supreme Court held that confessions produced by coercive interrogation methods must be excluded. The case law
concerning Miranda rights has become intertwined with the voluntariness doctrine and many appellate opinions address
both issues. Even when police comply with reading Miranda warnings, interrogations can be extremely coercive. In
many or most cases, you should move to suppress the statement on the grounds that your client’s confession was not
made voluntarily, in addition to litigating the Miranda violation.
varies widely from one jurisdiction to another. While there are some bright spots in the case law, U.S. Supreme Court
rulings have tended to hold that statements made after a waiver of Miranda warnings are admissible. This is unfortunate
because modern police interrogation techniques, although psychological in nature (as opposed to confessions obtained
by physical abuse), can be highly coercive, relying as they do on a combination of false innuendos and out-and-out
deception to induce a person to confess.
Unlike Miranda
Beckwith v. United States, 425 U.S. 341, 348 (1976). If police claim that your client was not in custody and Miranda
warnings were not required, there are still ample issues to litigate regarding voluntariness.
With the advent of DNA evidence and numerous exonerations of persons who gave confessions, there is now
abundant proof that psychological interrogation techniques, as practiced in many law enforcement departments, can and
do induce false confessions. Approximately 25% of the persons wrongfully convicted implicated themselves in crimes
they were completely innocent of. Most of these persons were read their Miranda rights and waived them; litigated
their confessions in pretrial proceedings; and courts declined to suppress what they deemed to be voluntary statements.
In light of this alarming statistic, it is crucial to aggressively litigate suppression of confessions and educate judges
as to just how coercive modern police interrogation practices are. Although we are used to looking at and arguing the
most modern case law, pre-Miranda case law contains pearls of wisdom about interrogation and just how intimidating
it can be for a person being accused of a crime and pressured to confess. Reading these old cases makes it clear that
police interrogation techniques have stayed pretty constant over the years, and that these techniques, notwithstanding
Miranda, are just as coercive today as they were over 100 years ago.
II. GOVERNING LAW
A. Early Case Law on Voluntariness
§11:01 Bram v. United States
An early case, Bram v. United States, 168 U.S. 532 (1897), held that the defendant was forced to incriminate him-
self when he was stripped of his clothing and told that another suspect had claimed he witnessed the defendant killing
Bram, “Now, look here, Bram
all I have heard from Mr. Brown. But,” I said, “Some of us here think you could not have done all that crime alone. If
you had an accomplice, you should say so, and not have the blame of this horrible crime on your own shoulders.” Id.
§11:02 SUPPRESSING CRIMINAL EVIDENCE 11-2
at 564. The Court held that this statement both put the defendant in fear that remaining silent would be considered an
But the situation of the accused, and the nature of the communication made to him by the detective,
necessarily overthrows any possible implication that his reply to the detective could have been the
result of a purely voluntary mental action; that is to say, when all the surrounding circumstances are
considered in their true relations, not only is the claim that the statement was voluntary overthrown,
but the impression is irresistibly produced that it must necessarily have been the result of either hope
or fear, or both, operating on the mind.
It cannot be doubted that, placed in the position in which the accused was when the statement was
made to him that the other suspected person had charged him with crime, the result was to produce
upon his mind the fear that if he remained silent it would be considered an admission of guilt, and
therefore render certain his being committed for trial as the guilty person, and it cannot be conceived
that the converse impression would not also have naturally arisen, that by denying there was hope of
removing the suspicion from himself. If this must have been the state of mind of one situated as was
the prisoner when the confession was made, how in reason can it be said that the answer which he
Id. at 562-563.
The Bram case, while not explicitly overruled by the U.S. Supreme Court, is no longer consistent with the law
of voluntariness. In Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991), the court noted that Bram’s holding that a
confession cannot be obtained by “any direct or implied promises, however slight, nor by the exertion of any improper
Bram at 168 U.S. 542-54), is no longer the law and does not state the current standard for determin-
ing the voluntariness of a confession. Current case law holds that a court is to determine whether or not a confession
is coerced and, therefore, involuntary under a totality of the circumstances test, Schneckloth v. Bustamonte, 412 U.S.
It is hard to imagine a court in the modern era suppressing a confession under similar circumstances as Bram’s;
most courts today would conclude that the statements by law enforcement made to Bram
to render the confession involuntary. Since a modern-day defendant would be Mirandized, a court would likely rule that
Miranda provides a prophylactic protection against a defendant’s assumption that he must speak or his silence would
be held against him. However, as the protections of Miranda increasingly get stripped away by the courts, it pays to
look at the language of the archaic cases to see what can be used in a modern day legal argument.
§11:02 Brown v. Mississippi: Involuntary Confessions Violate Due Process
The Bram court based its holding on the Fifth Amendment prohibition against compulsory self-incrimination,
which renders a confession involuntary. In Brown v. Mississippi, 297 U.S. 278 (1936), the court held that the Fourteenth
Amendment due process clause prohibits the admission of involuntary confessions obtained by beatings. Threats of
violence also violate due process and invalidate a confession under the Fourteenth Amendment. The issue of whether
suppressing a coerced confession should be litigated as violating the Fifth or Fourteenth Amendment was resolved
in Malloy v. Hogan, 378 U.S. 1 (1964). The Court held that the Fifth Amendment’s prohibition against compulsory
self-incrimination is incorporated into the Fourteenth Amendment’s due process clause.
§11:03 Psychological Coercion can Violate Due Process
The Supreme Court extended the application of due process to cases where a defendant’s will was overborne by
psychological interrogation techniques absent physical violence or threat of violence. Thus the court held that a con-
fession produced by “the product of sustained pressure by the police” is inadmissible. Watts v. Indiana, 338 U.S. 49,
53 (1949) (noting “it is immaterial whether he has been subjected to a physical or a mental ordeal. Eventual yielding
to questioning under such circumstances is plainly the product of the suction process of interrogation and therefore
the reverse of voluntary.”).
11-3 SUPPRESSING INVOLUNTARY CONFESSIONS §11:07
The general rule is that in order for a confession to be admissible as evidence, an inculpatory statement must be
the circumstances under which a confession is given is shown to have overborne the defendant’s will, the confession
is deemed involuntary and is to be suppressed. Columbe v. Connecticut, 367 U.S. 568 (1961). As noted in Miller v.
Fenton, 474 U.S. 104, 116 (1985), “the admissibility of a confession turns as much on whether the techniques for
extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures
that a conviction will not be secured by inquisitorial means, as on whether the defendant’s will was in fact overborne”
(emphasis in original).
B. Modern Test for Voluntariness
§11:04 Totality of Circumstances
Modern courts do not usually point to any one interrogation technique as the cause of a coerced involuntary con-
weighs the coercive techniques employed by law enforcement against the characteristics of the defendant and determines
whether or not his will was overborne or if the confession was given freely and voluntarily. Colorado v. Connelly,
479 U.S. 157 (1986). The Connelly decision and traits of the defendant which are important factors in determining a
§11:05 Standard of Proof
In federal and most state courts, the prosecution must prove the voluntariness of a confession by a preponderance
of the evidence. Lego v. Twomey, 404 U.S. 477 (1972). Lego explicitly noted that states are free to adopt a higher
standard of admissibility under their own state law. Id at 489. However, in some states, the prosecution must prove the
voluntariness of a confession beyond a reasonable doubt. See, e.g., State v. Stone, 397 A.2d 989 (ME, 1979); State v.
Phinney, 370 A.2d 1153 (NH 1977); People v. Anderson, 364 N.E. 1318 (NY 1977); State v. Lyons, 269 N.W.2d 124(SD
1978); Commonwealth v. Mandile, 492 N.E. 74 (Mass 1986); People v. Thomas, 8 N.E.3d 308 (NY 2014). Research
the law in your jurisdiction so you know what the appropriate standard is.
§11:06 Remedy
as a result of a Miranda violation may be used to cross-examine a testifying defendant and introduced during the prosecu-
tion’s rebuttal. Involuntary confessions are not admissible under any circumstances; if the judge suppresses the statement,
your client is free to testify and cannot be questioned about the involuntary statement he gave to law enforcement.
Courts are not to consider whether or not the substance of a coerced confession is true; coerced confessions must
be suppressed regardless of whether or not they are truthful. Rogers v. Richmond, 365 U.S. 534 (1961); Doby v. South
Carolina Department of Corrections, 741 F.2d 76 (4th Cir. 1984); State v. Agnello, 593 N.W.2d 427 (Wisc. 1999).
§11:07 Wong Sun Doctrine Applies
The Wong Sun doctrine (Wong Sun v. United States, 371 U.S. 471 (1963)), barring the use of “fruits of the poi-
sonous tree,” applies to coerced confessions. Harrison v. United States, 392 U.S. 219 (1968). Thus, the prosecutor
cannot introduce a defendant’s testimony from a previous trial where the verdict was reversed when the defendant only
Id. It also applies to the suppression
statement. Michigan v. Tucker, 417 U.S. 433(1974). In Nix v. Williams, 467 U.S. 431, 442 (1984), the court noted that
Wong Sun, although a Fourth Amendment case, applies to violations of the Fifth and Sixth Amendments as well.
Practice Pointer: Move to suppress
If you have a case where prosecution evidence was derived as a result of your client’s coerced statement,
move to suppress that evidence. You must successfully show that the derived evidence was not attenuated
from your client’s statement in order to prevail at the suppression hearing. An excellent discussion regarding
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