The Law ai Confessions-The Voluntanness Doctrine

• Author: Captain Fredric I. Lederer
• Pages: 02

I INTRODUCTION

Few areas of criminal procedure have proven as complex as the law of confessions. Basic issues of self-incrimination and voluntariness have been increasingly complicated by Article 31 uamings' and the Miranda-Temprai rights to counsel 3

Technically speaking, compliance with the Article 31-Miranda-Tempia rights warnings is an issue distinct from the voluntariness of the associated statement. However, in practice the two have become so interrelated as to be virtually identical. This is particularly true in the military, for the Manual for Courir-MarrraP has declared that "Obtaining [a] statement in violation of Article 3I(b) or other warning requirements" is an ex-ample oi "coercion, unldwful influence, and unlawiul inducement." 5 In day-today practice, most prosecutors laying a

nsl Lau Divliian The Judpc

af Leu B S 1968, Polylrchnlc In J D,

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School of Law. LLM 1976 Un la School 01 Law Member 01 the Bar, of Yew Yari thr Caired St liiary Appeals and rhr United Slates

MILIT4RY LAW REVIEW [VOl.74

foundation for admission of an accused's statement understandably concentrate on the rights warnings and usually give little more than passing atrention to common law or due process consideration, of voluntariness. While this may normally beadequate. it can be suggested that we are not generally prepared to argue ioluntariness issues.6 This is likely IO become particularly important in rhe near future as the Supreme Court appears embarked on a course designed to strictly limit Mmndo,. While limnation 01 even elimination of this precedent will leave Article 31 intact. it is probable that the increased aiiention paid to ialuntanness b) civilian courts will cause a rciurgencr oi military interest in the doctrine Accordingly, it appears appropriate 10 renew the ~oluntariness dactrine as I: currenrly exists.

I1 DEFINITIOSS

A confession IS a stalemen! by an individual admitting all of the elements of a crime. Historically a confession took place before the court and u'as the equivalent of a Dis-tinct from a confession, an admission 1s a statement admitting facts relevant 10 proof of a crime but less than a confession. In terms of admiisibil~ty there IS generally@ no difference berueenanadmiisionand aconfession !@

< loond 11 bc ~niolunlsr? on non-.WKiirndu In? cas? 01 Ihc etfrc: 0: e:roneiw admn,ior

A judicial coniession 1s simply a confession made in court, usually by an accused who has taken the stand. A judicial confession irequently takes place when an accused admits commission of one offense while denying responsibility for another, more serious oiiense. AU other confessions are technically extrajudicial ones but are usually referred to merely as confessions.

Adoptive admissions are those admissions, by speech or conduct, which although made by another are adopted by a witness or an accused."

111. AN INTRODUCTIOK TO THE ADMISSIBILITY OF COKFESSIONS

To successfully offer a confession into evidence, a counsel must comply with the hearsay rule, the voluntariness doctrine and the corroboration requirement. Admissions and confessions uhen made by a party to the trial are of course exceptions to the hearsay rule.12 The voluntariness doctrine requires that admissions and confessions be shown to have been made voluntarily. The doctrine is designed to ensure the reliability of evidence and to protect against unfairness. The corroboration requirement demands that More a confession can result in a conviction, enough other evidence must be shown to substantiate the commission of an offense or to establish the

"Also knoun a3 lacit admtwani. admnmn bi ulinci ha> p~mcn Iroubloromc kcsuir of chi .Mmndr v~mmsthat B SYS~LII haa rhc right 10 remain silent Of uhar pmbstiic value II the ~ilence af B m s p m regardlcri of rhr c ~ r c ~ m i m n c ~ ~ d hc has

JUII ken uarncd of hi3 rieht 10 say nothin@ The Supiemc Caun has finall! held that admiiiioni b! ulenc~ o$e? Mirondo w ~ r n i n g ~ arc

823 (19761 XIgrnrrvllr Comment Adoppllv?

The underlying rauonak tar thc rccogmuan of Ihc admxnan and confeinon exceplmn to the hraraa! i ~ l e

IS unclear It uauld seem IO be based ~n pan on thc for rhe eiidmce, BI rhe diclsranr *ill be uncompdlabk due 10 Lhc prcvUr$e ag self-lnmminaflon and parually on che same rcnraning that undrrliri Ihr Y Y I C

reliabhty of the canfessmn.l3 In addman to the rules discussed above. statements offered should be offered m their entmty lor the oppontian ma) complete the statement)14 and where applicable, compliance with presentation rules" or rights u'arningsrequirements must beihown j4

From the 17th Cenrury. Anglo-American law has been cancerned that confession evidence be "voluntary" in the sense that it is not obtained by coercive measures. The reasoning behind this concern has been twofold: that involuntary statements are prone to be uniehable, and that coercion of state-mmts IS fundamentally unfair While the development of the rule will be traced m the next section, brief consideration of the reliability oi confession evidence seems appropriate, as it ma) be the most contradictory farm of evidence available In a criminal trial. On the one hand. it? effect IS so weeping and damning that far all practical purposes it is conclusive of the issue of guilt On the other. while the law recognizes that confession eiidence IS in one sense '"preferred" evidence. it also recognizer that confessions are highly likely to be unreliable and accordingly are to be carefully controlled. While it is apparent that under certain circumstances most persons would confess to almost anything, it is difficult IO gauge the extent to which interrogation methods that do not utilize torture do in fact result in unreliable admissions. There is a surprising paucity of literature, legal or psychological, on why confessions result 1. However. the material that does exist makes it abundantlv clear that desone the absence of the "third demee."

good police techniques18 can obtain admissions from most people. What is particularly disturbing is that even accepted police techniquescan result in falseadmissions.

One motive for confessing is clearly to attempt to avoid possible violence or to gain favors. Beyond this obvious reason are a number of others which include:

1) Desire to mitigate possible future punishment of self

2) Desire to clear conscience of known offense; 3) Desire for punishment; 4) Desire for publicattention (e.g. notoriety); 5) Desire for recognition of personal status:iO 6) Desire for approval byauthority(e.g. police): or 7) Feelings ofgeneral guilt because of arrest."

or others;19

For many peopie the comparative isolation, fear, and embarrassment that are likely to accompany arrest and interrogation may well trigger, due to the factors listed above, a desire to admit details of real or imaginary offenses. Indeed one commentator has pointed out that the Miranda nghts warnings may haw the effect of encouraging confessions rather than preventing them, because they present the interrogator as a fair, impartial officer and yet (unless the suspect refuses to talk at all) do nothing to affect the ability of the underlying situation to suggest that a confession is required.12 The number of false confessions is unknown but their existence is well docu-

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mented ?' Whether their number is "suii~clentl)." substantia!

10 cart general doubt an confession evidence is unknown.:' The concluiion that can be drau,n, however. is that confewon e\?-dencr per re is ar least partially suspect A necessary result of lhii conclusion is that spontaneous confessions. made without any police que,iioning. ma) be no more reliable than confes-m o ' gained after houri or days of interrogation. for man) of the factors will operate in the absence of even implmt coerc,on However. to eliminate coniessions would be to substantially increase police uo:k. The ultimate balance is yet to be deteimmed

I\' THE HlSlKlRlCAL DEVELOPMENT OF THE VOLI?XTARIUESS DOCTRIKE

Professor U'lgmore iound four stages in rhe Engllsh dereiopment of the !a% oi confessions:;' total acceptance of coniesslon cadence ilntrl appsoximatcly 1750, inmited exclusion of inconi:isiuns fiom approximately 1'50 to 1800, hyper- 10 confessions resulting in almost wholesale excluand the cuirent rult charactenrzd in the Unmd Slates b! cuns1:tutiondl underpinnings. Diifering slightly irom Wigmure, Professor Le)) iinds that the voluntariness rule uas at least psrtisll) recognized by 1726?- and suggerts [hat the pn-

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mar) justification for it was to prevent receipt of unreliable evidence. Although separate and distinct from the right against self-mcnmmat,m, the wluntariness doctrine plainly had its angins in the same complex of values and social conflicts that gave rise to the right. Because much of the objeciion to self-incrimination was based on opposition to torture-derived confessions, the groundwork was laid for exclusion of coerced confessions. Except during the period when exclusion of confession evidence may have served other purposes (such as mitigating overly severe sentences), the English voluntariness rule appears to have been based primarily on reliability grounds. although questions of fairness no doubt were also relevant Although the right against self-incrimination per se had no remedy (for 11 only allowed an individual to remain silent, and once testimony was oven the right was waived), the voluntariness doctrine created a remedy; for d an individual was compelled to confess, his statement could be excluded thus in effect attaching an exclusionary sanction to violations of the right against self-incrimination. This should not be misconstrued, for all coerced confessions were not inadmissible. Particularly during the 1700's in England, the question was one of apparent truthfulness rather than breach of a privilege.

As in the case of the right against self-incrimination, the voluniariness doctrine was transplanted to the...