The future of confession law: toward rules for the voluntariness test.

• Author: Primus, Eve Brensike
• Position: Introduction through II. Disentangling Voluntariness A. The Offensive-Police-Methods Form of Involuntariness, p. 1-27

TABLE OF CONTENTS INTRODUCTION I. THE COLLAPSE OF CONFESSION LAW INTO VOLUNTARINESS A. The Beginning: A Voluntariness Standard B. The Fifth and Sixth Amendment Rules C. The Collapse Back into Voluntariness 1. Triggering Requirements 2. Waiver 3. Invocation 4. Fruits 5. A Return to Voluntariness: Summarizing the Collapse II. DISENTANGLING VOLUNTARINESS A. The Offensive-Police-Methods Form of Involuntariness B. The Effect-on-the-Suspect Form of Involuntariness C. Note About Overlap D. The Importance of Colorado v. Connelly: Folding Involuntary in-Fact Doctrine into Offensive-Police-Methods and Effect-on-the-Suspect Voluntariness III. GOING FORWARD: TOWARD RULES FOR VOLUNTARINESS A. A Test for the Offensive-Police-Methods Form of Involuntariness B. A Test for the Effect-on-the-Suspect Form of Involuntariness 1. The Connelly Requirement of Police Wrongdoing 2. Reliability CONCLUSION INTRODUCTION

Constitutional regulation of police interrogation is in a state of collapse. Half a century ago, three different doctrines imposed limits on the admissibility of confessions in criminal cases: Miranda doctrine under the Fifth Amendment, (1) Massiah doctrine under the Sixth Amendment, (2) and voluntariness doctrine under the Due Process Clauses of the Fifth and Fourteenth Amendments. Of the three, voluntariness was always the most amorphous. Justices and commentators alike described the voluntariness test as a "forgiving and vague," (3) case-by-case standard with no definite shape (4) that, in practice, almost always resulted in the admission of suspects' confessions. (5) In contrast, Miranda and Massiah supplied more definite rules, and courts relied on them to do the heavy lifting in regulating police interrogation practices.

In the last decade, however, the Roberts Court has gutted criminal suspects' Miranda and Massiah protections. (6) As a result, where there used to be three different constitutional doctrines to protect suspects during a police interrogation, there is now effectively one: voluntariness. And the voluntariness doctrine remains as hazy and unfocused as ever, bouncing among various concerns about confessions and almost always arriving at the conclusion that what the police did was, all things considered, acceptable. If voluntariness is going to be the framework for confession law, courts will need to disentangle the complex of values that is discussed under that heading and then use their clarified understanding as the basis of a judicially administrable rubric for regulating interrogation practices. In this Article, I begin that process and offer suggestions for ways to put rule-like contours on the morass that is voluntariness doctrine.

Some may quarrel with the premise of this Article, arguing that courts have no incentive to clarify and hone voluntariness doctrine. (7) After all, courts have gutted Miranda and Massiah to ease restrictions on police interrogation practices. Judges know that the police need confessions to obtain criminal convictions, (8) and they don't want to appear soft on crime by freeing confessed criminals. (9) The amorphous nature of the current voluntariness standard permits the admission of most confessions while still being flexible enough to allow courts to step in when particularly egregious problems arise. In short, if judges don't think voluntariness doctrine is broken, why would they fix it?

There is something to that argument. But it ignores a different set of judicial incentives, one that becomes more urgent as courts find themselves constantly adjudicating voluntariness claims in a world without rules to guide them. Those circumstances create a felt need for more predictable and uniform principles. As is well known, regulators perennially struggle with the relative benefits of rules and standards as means for governing behavior. (10) Rules have the benefit of clarity. They allow people to more easily predict whether their conduct will be deemed unlawful, and they provide for more consistent application of legal norms. But rules are also bound to be under- and overinclusive with respect to the norms they seek to advance, and they may not provide the flexibility necessary to implement those norms in varying circumstances. Standards provide that flexibility. They allow decisionmakers to consider the specific circumstances of a case and, one hopes, to reach just outcomes on the facts before them. But they provide less clarity, less consistency, and less guidance than rules. (11)

A similar pattern would emerge across many areas of law if one charted courts' use of rules and standards. Courts charged with applying specific rules encounter outlier cases in which the applicable rule directs a certain result, but equity and justice seem to direct another. Courts then create exceptions for those situations, thus blurring the clarity of the rule and making it more standard-like. If the exceptions become too pervasive and too textured, courts revert back to more rules to rein in the doctrine. (12)

Similarly, when faced with the need to interpret overly open-ended standards, courts infuse those standards with rule-like elements--especially when courts find themselves applying the standards to frequently recurring situations in which the law ought to provide clear guidance. If the rule-like contours get too specific and start to be too over- or underinclusive, courts shift back to a more standard-like inquiry. (13)

This dance between rules and standards operates like a pendulum, swinging to one side and then the other until a satisfactory equilibrium has been reached. The degree of each swing depends in part on the composition of the Supreme Court and the political climate at the time. And the equilibrium is, of course, transient. The Court can reach equilibrium for a period, and then the world changes and the dance begins again and continues until the Court achieves a new equilibrium. (14)

Criminal procedure routinely exemplifies the tension between rules and standards, particularly when courts are tasked with regulating police conduct. Police regularly put their lives in danger and must make split-second decisions involving widely varying factual scenarios. (15) For these reasons, courts are often inclined to use standards that give police the flexibility they need to protect themselves, and the public, in difficult and time-pressured situations. (16) At the same time, the Supreme Court has recognized that police are "engaged in the often competitive enterprise of ferreting out crime," (17) which drives them, often in good faith, to overvalue solving crimes and securing convictions and to undervalue competing social interests in things like privacy and avoiding false convictions. As a result, the Bill of Rights must limit police behavior and provide clear guidance about those limits. And although police do face varied situations, they also encounter standard ones: an officer will see many cases that are in relevant respects much like cases she has seen before. When situations recur frequently, the need for clear rules to guide police action and inform later judicial analysis of that action is at its zenith. For these reasons, courts often want to establish rules to guide police behavior in run-of-the-mill cases. (18)

The courts' experience regulating confessions both demonstrates the dance between rules and standards and explains why courts will need to create some rule-like contours for the voluntariness doctrine going forward. When the Supreme Court began to regulate confessions in the 1930s, it adopted a generalized due process standard under which only confessions that were given "voluntarily" would be admissible. (19) That open-ended standard gave courts flexibility to develop the law slowly rather than starting with a rule that might prove unworkable in practice. And even if the Court had been inclined to adopt a rule, it is unclear that any rule could have adequately served the "complex of values" that animated voluntariness doctrine. (20) As the Court noted, voluntariness incorporated concepts of fairness, (21) concerns about ensuring that the system remained adversarial rather than inquisitorial, (22) notions of individual autonomy and free will, (23) and concerns about the reliability of confessions. (24) It is hard to imagine a rule that would vindicate all of those interests at once.

Not surprisingly, however, the first thirty years of the Court's experiment with regulating confession law demonstrated the unworkability of a completely open-ended standard. The lower courts were all over the map in their descriptions of what made a confession involuntary (25) and were consistent only in their pervasive tendency to uphold whatever the police might do in a given case. (26) It was well understood that police were beating suspects--particularly African American men in the South--and using extreme psychological and physical pressure to get suspects to confess. (27) But the voluntariness test was too vague to force police to stop these abusive interrogation methods. Potentially innocent people were being convicted (28) and the Supreme Court's docket was not large enough to take every case that involved offensive police interrogation practices. (29) There was, as a result, immense pressure to put some rule-like contours on the open-ended voluntariness standard. (30)

For a time, it appeared that the Court might address these problems by putting some rule-like contours on voluntariness doctrine. (31) And the Court did eventually impose rules to regulate police interrogation, albeit through Miranda and Massiah rather than within voluntariness doctrine itself. (32) The Rehnquist and Roberts Courts, however, have gutted the Miranda and Massiah protections by diluting their triggering requirements, relaxing the standards for waiver and invocation, and reducing the scope of their exclusionary rule protection. As a result, the regulation of confession law has collapsed...