Suppressing Involuntary Confessions

AuthorDeja Vishny
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 himself
when he was stripped of his clothing and told that another suspect had claimed he witnessed the defendant killing the
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.
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 gave and
the force of hope or fear? To so conclude would be to deny the necessary relation of cause
and effect.
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
Bram at 168 U.S. 542-54), is no longer the law and does not state the current standard
for determining 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. 218 (1973); Fikes v. Alabama, 352 U.S. 191(1957). See §11:04, et seq., Modern Test.
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 
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
confession 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.”).
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
 
court 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 confession’s voluntariness are discussed in §11:60.
§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
The suppression remedy for an involuntary confession differs from a Fifth Amendment violation. Confessions
obtained as a result of a Miranda violation may be used to cross-examine a testifying defendant and introduced
during the prosecution’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 poisonous
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 application of attenuation factors
can be found in United States v. Ahmed Khalfan Ghailani, 743 F. Supp. 2d 261 (S.D.N.Y.
2010). The burden of proving attenuation is on the prosecution. Id. For a sample motion
discussing numerous factors contributing to a coerced confession, see Form 11-1, Motion
to Suppress – Unlawful Arrest; Voluntariness; MirandA: Reid Method.
[§§11:08-11:09 Reserved]

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