Confessions are deemed the ‘‘gold standard’’ that assure convictions. The majority of confessions are garnered through an interrogation process. Detainees rarely spontaneously confess. Promises, inducements, and sometimes coercion are used by law enforcement officers to obtain confessions. For confessions to withstand legal scrutiny, they must be trustworthy and free and voluntary in nature. However, trustworthiness was the lynchpin for determining whether a confession would be excluded. In the first reported case challenging a coerced confession, Commonwealth v. Dillon, the court’s major concern was not the fact that the twelve-year-old defendant was deprived of food or clothing for three days but that he voluntarily made his confession. At the time of Commonwealth v. Dillon (1792), no constitutional basis existed to challenge a coerced confession. The Thirteenth, Fourteenth, and Fifteenth Amendments would give the federal government greater power to review state actions.
Law enforcement has developed sophisticated methods of interrogation that disarm or put at ease detainees. Different levels of coercion exist to induce detainees to confess. The law does allow for coercive tactics but draws the line at such tactics as physical and psychological torture. The 1930s saw the development of the modern doctrine of coerced confessions. Brown v. Mississippi was the seminal case that raised the question of coerced confessions to a constitutional level. The U.S. Supreme Court determined that law enforcement would not be able to use torture as a coercive tactic to garner confessions.
Three black men—Henry Shield, Yank Ellington and case namesake Ed Brown—were accused of the murder of a white farmer, Raymond Stewart. A white mob seized Ellington from his home and hung him by a rope from a tree. Despite being nearly lynched twice by the mob, Ellington continued to protest his innocence. The mob eventually released him and allowed Ellington to return to his home. Kemper County sheriff deputies decided to arrest Ellington and administered a beating to him until he finally confessed to the murder. The sheriff deputies later arrested Brown and Shields and proceeded to torture them. They were bent over chairs and beaten with buckled leather straps until their backs were cut to pieces. The whipping continued until they confessed. A grand jury indicted Brown, Ellington, and Shields the next day for murder.
Defense attorneys for Brown, Ellington, and Shields did not challenge the admissibility of their confessions. The trial court found the ‘‘free and voluntary’’ confessions admissible. The Mississippi jury convicted Brown, Ellington, and Shields of murder, and the court sentenced them to die. The Mississippi Supreme Court upheld the convictions. The court set an execution date for Brown, Ellington, and Shields. However, the United States Supreme Court agreed to review the case.
The Brown defense team raised the then novel argument that the convictions should be overturned due to the violation of the Fifth Amendment right against self-incrimination. The tortured confessions of Brown, Ellington, and Shields were not ‘‘free and voluntary.’’
The Supreme Court in the era of Brown v. Mississippi did not recognize self-incrimination as a constitutional issue. The Fifth Amendment of the U.S. Constitution says no one ‘‘shall be compelled in any criminal case to be a witness against himself.’’ The language is directed at the use of the legal process to compel testimony in a criminal trial. The Kemper County deputies did not compel Brown, Ellington, or Shields to testify against themselves in the courtroom. They tortured the defendants in the station house. Prior to Brown v. Mississippi, the Supreme Court found on numerous occasions that individual state courts were not subject to the Fifth Amendment. The Bill of Rights directed what the federal government could do to its citizens, not to state courts. Defense counsel for Brown, Ellington, and Shields had to use a new constitutional standard to get the Supreme Court to review the case.
The Fourteenth Amendment Due Process Clause prevents states from depriving ‘‘. . . any person of life, liberty or property without due process of the law.’’ Defense counsel for Brown, Ellington, and Shields asserted that the actions of torturing the defendants to garner confessions violated their due process rights. The Supreme Court was generally reluctant to intervene into state actions. However, the Court acknowledged that the state of Mississippi had gone too far. Justice Hughes in writing the opinion remarked, ‘‘The state is free to regulate the procedure of its courts in accordance with its own conceptions of policy, unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’’ Mississippi was free to govern as it chose but it could not violate the basic principle of justice in doing so. The Court stated, ‘‘the freedom of the state in establishing its policy is the freedom of constitutional government and is limited by the requirement of due process of law.’’
Justice Hughes found that the constitution prohibited coercive tactics in obtaining confessions. ‘‘Coercing the supposed state’s criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries . . . . the Constitution recognized the evils that lay behind these practices and prohibited them in this country.’’ The trial court knew Brown, Ellington, and Shields confessed after being tortured yet declined to act. The Mississippi Supreme Court declined to address the due process violations when Brown, Ellington, and Shields appealed their convictions. The Supreme Court had to enforce constitutional rights the state of Mississippi refused to do. The Supreme Court unanimously overturned the convictions and developed a new doctrine that would allow federal review of state actions in criminal cases if constitutional violations existed.
Subsequent to the Brown ruling, trial judges had to apply not only state laws for admissibility of confessions but also had to adhere to a new federal due process standard. The South became the predominant source for coerced confessions. The tactics used by southern law enforcement officers became typified by the use of torture of numerous blacks until they induced confessions.
In Chambers v. Florida, the Supreme Court held that confessions could be coerced psychologically as well as physically. The robbery and murder of an elderly white man prompted Florida law enforcement to detain twenty-five to forty black men without a warrant for a week. After interrogators used sleep deprivation and hunger as manipulation tools, four detainees confessed.
Texas Rangers took an illiterate plantation worker into the woods for a week and beat him until he confessed to a rape. At trial, the defendant steadfastly refused to admit that he confessed. The trial court convicted the plantation worker and sentenced him to death. In White v. Texas, the issue was the singular coerced confession but the state of Texas proffered a novel argument before the Supreme Court. Texas argued that since the defendant denied ever making or signing the confession, White should be denied the right to argue the state of Texas violated his due process rights. The Court rejected the argument and overturned White’s conviction. The Court found that since the state insisted on publishing the confession to the jury, the confession was subject to constitutional review.
The Supreme Court struck down convictions in a series of southern cases that each had the theme of a tortured confession. In Ward v. Texas, Justice Byrnes stated,
This Court has set aside convictions based upon confessions extorted from ignorant persons who have been subjected to persistent and protracted questioning, or who have been threatened with mob violence, or who have been unlawfully held incommunicado without advice of friends or counsel, or who have been taken at night to lonely and isolated places for questioning. Any one of these grounds would be sufficient cause for reversal. All of them are to be found in this case.
The Court set due process standards that states continued to flout. In McNabb v. United States, the Court reversed the homicide convictions of two brothers with fourth grade educations from an isolated rural area who confessed after two continuous days of interrogation. The holding spawned what came to be known as the McNabb Rule. Police were to show ‘‘with reasonable promptness’’ some legal cause for holding persons. The Court would not allow convictions to stand where the police failed to promptly allow defendants a preliminary hearing. The Court did not, however, apply a per se blanket exclusion rule to coerced confessions.
The Court extended the McNabb Rule in Mallory v. United States. Washington D.C. police arrested a nineteen-year-old black janitor for the rape of a white woman. Mallory was not told of his right to counsel or to a preliminary examination before a magistrate, nor was he warned he could be silent and that any statement made by him could be used against him. The police interrogated him for several hours, and he then confessed. The police used a court stenographer to record the confession and the deputy coroner to certify that no evidence of physical or psychological coercion existed. Mallory went before court the next day. Mallory’s trial was delayed a year to determine whether he was competent to stand trial. The trial proceeded with the strongest evidence being Mallory’s confession. Mallory was found guilty. The court sentenced Mallory to death for rape. The Supreme Court reversed the conviction and found the confession inadmissible. The Court held that the D.C. violated federal law that required Mallory be brought before a magistrate ‘‘without unnecessary delay.’’
The McNabb-Mallory Rule put law enforcement on notice that a statement obtained from a defendant during a period of unnecessary delay in having a probable cause determination should be excluded. Federal law dictates that law enforcement delays in taking a defendant before a judicial officer greater than six hours makes any confession gotten inadmissible.
In Lisenba v. California, the Court acknowledged the police illegally detained the defendant for a twoweek period before he confessed to murdering his wife, yet the court found Lisenba to be an intelligent man who minimized his own culpability. The Court gave inconsistent holdings. Just two years after Lisenba, the Court reversed a conviction based on a confession garnered from thirty-six hours in detention. In Ashcraft v. Tennessee, the Court began to liken the standards for confessions induced from long detentions to those held up to the constitutional scrutiny of a confession used in a public trial. The Court used the same rationale in Watts v. Indiana. Police interrogations began to be held to strict courtroom standards.
In Malinski v. New York, a police officer killing led to overzealous police interrogation tactics. New York police had no suspects in the killing of Officer Leon Fox. Malinski and his brother-in-law, Spielfogel, ran a ‘‘protection raceket’’ and promised each other if one became imprisoned, the other was to care for his family. Spielfogel went to prison, but Malinski breached his end of the agreement. Spielfogel became upset and had contact with the police. The police picked up Malinski but did not bring him to a police station. The police brought Malinski to a Brooklyn hotel and had him strip naked for three hours. They continuously questioned Malinski in the nude and dressed only in a blanket and socks. Spielfogel was brought to the hotel and left alone with Malinski. He confessed soon thereafter. The police drove Malinski to scenes of the crime where he again confessed. Malinski stayed at the hotel three more days before being brought before a magistrate. Malinski signed a written confession while in custody. Malinski confessed a total of four times. Malinski was tried and convicted of Fox’s murder.
Malinski challenged the admission of the first oral confession. The trial judge found the confession specious but he allowed it for issues of voluntariness of the written confession. However, the trial judge instructed the jury to disregard the statement unless it was voluntarily given beyond a reasonable doubt. While the judge instructed the jury to potentially disregard the confession, the prosecutor made several references during the trial to the oral confession. The Supreme Court found that one coerced confession corrupted the use of the other three and reversed Malinski’s conviction.
The due process doctrine for coerced confessions reached its zenith.
The Supreme Court began to refine the due process doctrine. In Stein v. State, the New York police arrested the codefendants, Cooper and Stein, and interrogated them for robbery and murder. Four defendants were arrested in total. The police initially detained Cooper’s father to persuade him to confess. Cooper refused. The Parole Department detained Cooper’s brother and threatened his freedom. In total, the police interrogated Cooper for more than thirty-six hours. He eventually confessed. The police confined Stein in the basement of an army barracks. An army officer initially interrogated Stein. Over the course of twenty-four hours, police interrogated Stein, and he eventually confessed after being told about the Cooper confession.
Cooper and Stein had bruises and injuries at their arraignment, but their defense counsel did not raise the issue at trial. However, defense counsel did challenge the use of the confessions. One of the codefendants, Dorfman, testified against Cooper and Stein at trial. The trial court also admitted their confessions, and Cooper and Stein were convicted. Cooper and Stein appealed to the Supreme Court. They claimed the police use of physical and psychological coercion induced them to confess.
The Supreme Court examined the trial court and was critical of the claims of Cooper and Stein. They chose not to testify, and the Court theorized that was due to their prior records. The Court found it could not state what prompted the jury to find the defendants guilty. Was it the coerced confessions or was it the testimony and other State evidence? The Court refused to attempt to second-guess the jury. The Court had to examine whether the confessions were obtained in violation of Cooper and Stein’s due process rights.
The Court examined the intelligence and character of Cooper and Stein. Justice Jackson stated, ‘‘these men were not young, soft, ignorant or timid . . . they were not inexperienced in the ways of crime or its detection, nor were they dumb as to their rights.’’ Justice Jackson also noted the fact that Cooper negotiated the terms under which he would confess undermined his argument of coercion.
The Court set new standards with Stein. Due process rights would not attach to cases in which the doctrine was meant to protect the innocent not be used as a loophole to protect the guilty. Station house confessions would not be held to the same standard as courtroom testimony. On a case-by-case basis, the personality of the accused would be examined along with other relevant circumstances. The admission of confessions would be examined by the totality of the circumstances.
President Dwight Eisenhower nominated former California Governor Earl Warren Chief Justice to the U.S. Supreme Court in 1953. Justice Warren created a revolution in criminal law and criminal procedure that culminated in Miranda v. Arizona. The Warren Court reviewed cases with greater scrutiny and held law enforcement accountable by reversing several convictions on technical grounds. Confessions became a central component.
Justice Warren began carve out fundamental rights for defendants and challenge conventional law enforcement procedures. In Gideon v. Wainright, Florida state court charged Gideon with breaking and entering a poolroom with intent to commit a felony under Florida law. Appearing in court without funds and without a lawyer, Gideon asked the court to appoint him counsel. The court refused, and Gideon represented himself. The jury found him guilty and he received a five-year prison sentence. Justice Black succinctly stated, ‘‘The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.’’
The Court began to give a nuanced definition of what it meant to have counsel. A Mexican immigrant and murder suspect continued to request his attorney while being interrogated, but the police refused his request. The Supreme Court held that once a suspect becomes the target of an investigation and was not warned about his constitutional rights, he is entitled to representation under the Sixth and Fourteenth Amendments. Escobedo v. Illinois gave suspects the right to counsel during the interrogation phase. The Court began to grant constitutional guarantees at the critical interrogation phase for defendants.
What prompted the Court was the police interrogation of Ernesto Miranda. He was a Mexican immigrant of limited intelligence who confessed to a kidnapping and rape after a two-hour detention. While the police detained and interrogated Miranda, they never informed him of his right to counsel or of his Fifth Amendment right against self-incrimination. The trial court convicted Miranda and sentenced him to sixty years in prison. The Arizona Supreme Court affirmed the conviction. Miranda appealed to the Supreme Court.
The Supreme Court gave defendants the most clearly detailed and defined rights and created a firestorm in the law enforcement community that still reverberates. Miranda v. Arizona was the first of four combined cases appealed before the Supreme Court to clarify issues of the right of defendants while in custody and under interrogation. Justice Warren held the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Justice Warren’s opinion became the verbatim Miranda Warnings that are so well known today: (1) an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation; (2) an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney; and (3) it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him.
Law enforcement feared that Miranda warnings would have a chilling effect on their interrogation procedures. Justice Warren acknowledges that fear in the Miranda opinion:
In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility
is not affected by our holding today. Justice Warren makes it clear that interrogations are still allowed to be a key investigation strategy. However, the Court demanded higher standards from law enforcement in the interrogation room.
The legal prerequisite for a confession is voluntariness, but to some degree coercion is used in police interrogations. As the Supreme Court stated in Oregon v. Mathiason, ‘‘Any interview of one suspected of crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of the law enforcement system which may ultimately cause the suspect to be charged with a crime.’’ No legal test exists that will provide complete freedom from a suspect’s perceived coercion during the course of a police interrogation. To prohibit coercion would mean prohibiting all police interrogations—something society would not contemplate.
Although judges determine whether a confession is admissible, some state legislatures have attempted to establish their own tests. Most of the tests proved to be unsatisfactory, and some have only confused the issue. New York was the exception in drafting legislation that clearly defined a confession ‘‘involuntarily made’’:
(a) By any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant’s physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement; or
(b) By a public servant engaged in law enforcement activity or by a person acting under his direction or in cooperation with him;
(c) By means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself; or
(d) In violation of such rights as the defendant may derive from the constitution of this state or the United States.
Courts quickly resolve cases in which the issue on confession voluntariness hinges on the infliction of direct physical harm on the suspect. Confessions that involve such occurrences are patently rejected. The general rationale for the blanket exclusion centers on the realization that an innocent person may confess, and admission of such a confession would be an affront to the integrity of the judicial system.
Ambiguity does exist with confessions obtained through indirect coercion such as a lengthy interrogation by two or more interrogators or the deprivation of food, water, sleep, or toilet facilities. Many variables are present regarding the suspect’s tolerability or sensitivity to what occurred and to the degree and extent of the deprivations. The Supreme Court found any interrogation inherently coercive, but as in Oregon v. Mathiason (where the defendant was free to leave after confessing) the coercive effects did not rise to a due process violation.
The presence of multiple interrogators during a lengthy interrogation time period is one of the most blatant uses of indirect force. For the prosecution to prove their case, they must present as witnesses all officers involved in the interrogation process. The Illinois Supreme Court ruled in People v. Ardenarczyk that when a defendant in criminal prosecution objects to confession as being result of threats and violence, the burden is on the people to show that confession was made voluntarily, and evidence must show all circumstances under which confession was made. Courts have also held that the number of interrogators and the length of interrogation do not automatically render a confession inadmissible.
The threat factor of coercion does invalidate confessions. When an interrogator led a suspect to believe that unless he confessed he would face great bodily harm or death, the court in People v. Flores found coercion. A mother being threatened with the loss of her children invalidated the confession in Lynum v. Illinois.
Threatening behavior in an interrogation is distinguished from outright threats. An interrogator is allowed to question roughly, to question suspects assuming guilt, express impatience with a potentially lying suspect, or bluff a suspect into believing that evidence was secured to ensure a conviction. The ‘‘good cop – bad cop’’ interrogation scenario is allowed as long as the ‘‘bad cop’’ does not taint the interrogation with force or the threat of force. The comments must be limited to derogatory remarks and expressions of impatience.
The semantics of an interrogator’s phraseology can be perceived as coercive. The interrogator’s use of the word ‘‘better’’ in trying to persuade a suspect to confess can be construed as coercive if it is interpreted as ‘‘you had better confess’’ versus ‘‘it would be better for you to confess.’’ In Edwards v. State, the court found a confession inadmissible based on the coercive effects of a letter. Just before the defendant confessed, a police officer urged the defendant to tell the truth and showed the defendant a letter supposedly written to the officer by an inmate of the state penitentiary (which contained statements amounting to a recommendation that it was better for a person accused of a crime to do what officers told him to do what the police officers urged). The confession, supported by the letter, constituted an inducement to the defendant and made the confession inadmissible in the murder prosecution.
When an interrogator uses language that leads a detainee to believe that confessing could lead to leniency, the confession becomes questionable. The mere promise of a lighter sentence does not vitiate a confession. A promise of leniency that may induce a false confession is what courts abhor.
Exhorting a detainee to tell the truth is permissible, because it is considered free from inducing false confessions. However, when an interrogator attempts to make specific promises, courts consider such language coercive. In Hillard v. State, the interrogating officer promised Hillard that he would ‘‘go to bat’’ for him. The court found that such a promise was an inducement that provoked an involuntary confession. An interrogator may report that a detainee has been cooperative as long as there is no specific promise of a lesser sentence. Detainees are without counsel during interrogations, and such promises or plea bargains are the purview of attorneys.
An interrogator can make limited promises such as keeping incriminating statements from family members, reduced bail recommendations, or assisting with psychiatric treatment after incarceration. A more explicit promise such as putting a homosexual detainee in the ‘‘gay cell’’ was found in State v. Greene to invalidate the confession.
The Supreme Court has given leeway to interrogators to use trickery and deceit during the interrogation process. In Frazier v. Cupp, the Court upheld the conviction of Frazier—dismissing his argument that his confession was involuntary and induced by the deceit of his interrogator. Oregon law enforcement officers detained Frazier as a murder suspect along with his cousin Rawls. An officer deliberately lied to Frazier and told him that Rawls confessed. Frazier then confessed. On appeal, Frazier claimed coercion. Justice Marshall rejected Frazier’s claim and found he was a man of normal intelligence who knowingly waived his right to silence. Justice Marshall surmised that under the totality of the circumstance, none of Frazier’s constitutional rights were violated.
Interrogators are given latitude by the courts to use aggressive and deceitful tactics in questioning detainees. Interrogators can lie about having positive fingerprint identification placing a detainee at a crime scene. One suspect can be pitted against another in seeking to obtain a confession. Even lying about victims is not considered sacrosanct. Interrogators have condemned and maligned victims hoping the suspects would confess. One officer blatantly told a murder suspect that the victim was still alive. However, in the Illinois Supreme Court a detective crossed the line when he lied to a suspect by falsely claiming that they obtained his fingerprints from the burgled residence and that the victim positively identified him. The court found that in determining whether a confession was voluntarily made, the defendant’s confession was made freely, voluntarily, and without compulsion or inducement of any sort.
The Supreme Court began a retreat from the Warren Court’s judicial activism. The case that signaled the greatest retreat was Fulminate v. Arizona (1991). The Supreme Court overruled prior cases and found coerced confessions could be deemed harmless error. Harmless error means that coerced confessions could be used in a trial if the prosecutor can prove beyond a reasonable doubt that the coercive actions did not violate due process rights. Oreste Fulminate was in an Arizona detention center for a gun violation when another inmate befriended him. The inmate, Anothy Sarivola, began to question Fulminate about the murder of his stepdaughter. Sarivola worked for Arizona law enforcement and was given the specific task of befriending Fulimante hoping he would confess to Sarivola. Fulminate began to get threats from other detainees. Sarivola promised to protect Fulminate if he told Sarivola the truth about the murder. Fulminate admitted to the charge. Fulminate was released from prison and later confessed to Sarivola’s fiance´.
The State of Arizona prosecuted Fulminate for murder. During the trial, Fulminate attempted to have the confessions deemed inadmissible. The trial court disagreed. The confessions were admitted into evidence, and the court found Fulminate guilty and sentenced him to death. Fulminate appealed his conviction claiming violations of the Fifth and Fourteenth amendments.
Fulminate’s appellate history became complicated. The Arizona Supreme Court disagreed with Fulminate’s initial appeal but allowed the case to be heard again. On rehearing, the court did reverse Fulminate’s conviction. The Supreme Court decided to hear the case. The Supreme Court broke from the history of prior cases that held there is no such thing as a coerced confession being harmless error. Many in the criminal justice system feared that the Supreme Court would begin to retreat on the well-established doctrine of coerced confessions.
In the post September 11th world, the U.S. government has used unprecedented power in its war against terrorism. The government has the power to suspend the civil liberties of its citizens by incurring the enemy combatant status. Once the status is invoked, the person is placed outside the purview of American law and jurisprudence. An enemy combatant is not allowed to have regular contact with an attorney, has no judicial review, and may be detained indefinitely. The unchecked power that is granted to federal law enforcement without review could lead to circumstance similar to Brown v. Mississippi.
Enemy combatants are not entitled to general court trials. Military tribunals are established to try cases due to national security issues. The tribunal does not have a court of higher review. Once the tribunal decides the case, the defendants have no appellate rights. Coercive tactics can arise in cases where there exists no governing body to review federal agents’ actions. Coercive tactics include physical and psychological interrogations techniques that render detainees/enemy combatants with no legal recourse. Legal challenges to the enemy combatant status are underway that present fundamental constitutional questions to the Supreme Court: (1) do they have a right to remain silent; (2) can they be compelled to be a witness against themselves; (3) can a ‘‘free and voluntary’’ confession be given or used in court when a detainee has been deprived of his fundamental constitutional rights?
References and Further Reading
Nasheri, Hedieh, and Victor J. DeMarco, True Confessions?: A Critique of Arizona v. Fulminate, Am. J. Crim. L. 273, 21.
Raddack, Jesselyn, United States Citizens Detained As Enemy Combatants: The Right to Counsel as a Matter of Ethics, William and Mary Bill of Rights Journal 12 (2003): 221.
Cases and Statutes Cited
See also Due Process; Race and Criminal Justice