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

AuthorPrimus, Eve Brensike
PositionII. Disentangling Voluntariness B. The Effect-on-the-Suspect Form of Involuntariness through Conclusion, with footnotes, p. 27-56
  1. The Effect-on-the-Suspect Form of Involuntariness

    The second type of involuntariness analysis is the "effect-on-the-suspect" form. Under this consequentialist approach, courts deem certain police tactics offensive because they tend to provoke false confessions. In differentiating this strand of analysis from the offensive-police-methods strand, I do not mean to imply that the tactics giving rise to voluntariness violations under this strand of the doctrine may not also be offensive. But if they are offensive under this strand, it is by virtue of their effects: they tend to cause suspects to confess falsely.

    This form of involuntariness analysis is not as prominent in current case law as the offensive-police-methods variant, but it has deep historical roots. (167) Nineteenth-century English courts commonly conceived of confessions as involuntary when the police tactics at issue might have induced untrustworthy confessions. (168) When the U.S. Supreme Court first spoke of involuntary confessions in the late 1800s, it too emphasized that the doctrine was concerned about tactics that led to unreliable statements. (169) By the middle of the twentieth century, the view that voluntariness was animated, at least in part, by concerns about the trustworthiness of confessions was so widely accepted that it was regularly stated by courts, in prominent treatises, and by respected confession law scholars. (170) In fact, it was so pervasive an idea that the law enforcement community itself accepted it as a core concern of voluntariness doctrine and incorporated it into police training manuals. (171)

    In the last sixty years, the Supreme Court has gravitated toward more of a focus on the offensive-police-methods variant of voluntariness analysis. (172) But concerns about reliability have continued to affect and inform lower court decisions. (173) Consider, for example, the common police tactic of promising either to drop the charges or to reduce the severity of the charged offense if the suspect cooperates and admits guilt. One of the primary reasons why courts are concerned about promises of lenient treatment in exchange for confessions is the fear that such promises will cause suspects to confess falsely; a defendant facing the possibility of a heavy sentence if convicted has a powerful incentive to take such a deal and confess, whether he is actually guilty or not. (174)

    For the same reason, courts have emphasized that threats to increase the severity of the charges if a person does not confess can render a confession involuntary. (175) In a slightly different vein, prolonged periods of detention for questioning may provoke false confessions--even if the questioning is not continuous--because suspects will believe that the police will not let them go unless they confess and may, as a result, confess even if they are not guilty. (176) Lower courts continue to emphasize that the likely unreliability of confessions is part of what animates their voluntariness analyses. (177)

    As was true with the offensive-police-methods variant of involuntariness, the effect-on-the-suspect variant exists in two forms. (178) The distinction between the two is, roughly, the distinction between the general and the particular. In the first category, there are certain police tactics that significantly increase the likelihood that suspects will confess falsely across the broad universe of criminal cases. Although the science is far from perfect, modern analysis of data from known false-confession cases (generally involving exonerations) has substantially improved the law enforcement community's understanding of the likely effects of different sorts of police tactics. So, albeit within the limits of the available information, it is sensible to speak of tactics that police should know are objectively likely to significantly increase the risk of false confessions. (179)

    Then there are tactics that might not be likely to provoke false confessions as a general matter but that the police should know are significantly likely to increase the chance of a false confession in a particular case, given the known characteristics and susceptibilities of the suspect. Consider a case in which the police are questioning a person who is young, impressionable, and very religious. The repeated assertion that God wants that person to confess might over time cause that particular person to confess falsely, even though it would be unlikely to have a similar effect on either a nonreligious person or a religious adult.

    As is true with all such distinctions, the line between these two forms of effect-on-the-suspect involuntariness sometimes calls for judgment in the application, and sometimes the two analyses are better understood as lying along a continuum rather than as the opposing members of a dichotomy. For example, some police tactics significantly increase the likelihood of unreliable statements when used on certain subpopulations: studies have shown that children and individuals with cognitive and intellectual disabilities are particularly likely to confess falsely when presented with fictitious evidence of their guilt. (180) Presenting children or the mentally disabled with false reports that others have identified them as criminals poses an even greater risk of creating a false confession than would the same information when posed to an adult with no mental handicaps. (181)

    Thus, it is possible that the use of certain tactics could be offensive but only when used on specific subpopulations. The use of that tactic might not tend to provoke false confessions in general, but the police need no individualized information about a suspect beyond the fact that he is a child or is cognitively disabled to know that the tactic might provoke a false confession in the case at hand.

  2. A Note About Overlap

    Although the foci and the analyses of the offensive-police-methods and effect-on-the-suspect branches of voluntariness doctrine are different, there are obvious areas of overlap. For one, a police interrogation tactic can involve both an offensive police method and one that is significantly likely to lead to a false confession. Consider again the facts of Brown v. Mississippi. (182) Hanging someone and whipping him until he confesses are per se offensive police tactics, and courts are right to find such confessions involuntary. But it is also true that a court might have serious reliability concerns about confessions obtained under those circumstances. In Brown itself, the Court noted in passing that "[a]side from the confessions, there was no evidence sufficient to warrant the submission of the case to the jury." (183) Threats of violence, extended periods of isolated detention with repeated questioning, and many other police tactics might raise voluntariness concerns along both the offensive-police-methods and effect-on-the-suspect dimensions.

    But the fact that both sets of voluntariness concerns might be present within the same facts does not mean that they should be conflated. On the contrary, disentangling them is important. As I explain in Part III, a court's focus and analysis should be different depending on which variant of voluntariness doctrine is at issue. So in a case in which both problems may be present, a court needs to conduct two analyses rather than just one.

  3. The Importance of Colorado v. Connelly: Folding Involuntary-in-Fact Doctrine into Offensive-Police-Methods and Effect-on-the-Suspect Voluntariness

    The Supreme Court once entertained a third form of involuntariness--one that in some senses tracks a common-sense understanding of the word "voluntary" better than either of the two extant forms. In its early cases, the Court suggested that any confession that was not the product of the suspect's rational intellect and free will should be suppressed. (184) If a person's mental illness drove him to confess or if he had been given a truth serum, his confession was not the product of his free will and thus would be suppressed because it was "involuntary in fact." (185) 186 What was distinctive about the involuntary-in-fact idea was that it could deem a confession inadmissible even when the police had done nothing other than receive the confession.

    In Colorado v. Connelly, (186) the Supreme Court rejected the idea of a constitutional violation without police action and held that, in order for a due process voluntariness issue to be presented, there must be police conduct causally related to the resulting confession. (187)

    The Supreme Court's decision in Connelly is important for three reasons. First, the threshold requirement of police action that induces a confession is important when thinking about how to approach all forms of voluntariness analysis. In the offensive-police-methods form of voluntariness, there will always be police action sufficient to satisfy the Connelly threshold. If there is no police action, then there will not be "offensive" police action. With respect to the effect-on-the-suspect form of involuntariness, however, the Connelly threshold requirement has real teeth. It is not enough if the confession is unreliable. Rather, police action must trigger that unreliable confession for there to be a voluntariness problem under this strand. (188)

    Second, Connelly is important because it effectively eliminated any independence that the involuntary-in-fact cases had from the other two strands of voluntariness. After Connelly, if a suspect volunteers a confession that is not a product of his rational intellect and free will and the police do nothing to provoke the confession, voluntariness doctrine will not exclude the confession regardless of how unreliable it is. The fact that the confession was not the product of the suspect's free and rational will only matters if (1) there was police action that was offensive in and of itself (189) or (2) there was police action that significantly increased the chances of a false confession...

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