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The Voluntariness Approach

As already noted, three separate constitutional provisions bear on the admission of confessions achieved through police interrogation. Before 1964, the principal means of control were the clauses in the Fifth and Fourteenth Amendments, guaranteeing due process of law. Beginning in 1936, a series of Supreme Court cases held that police tactics having the effect of "overbearing the suspect's will" or resulting in "involuntary" statements violate this guarantee.

Almost from the beginning, the scope and purposes of this protection were encrusted in ambiguity. To be sure, the earliest cases, suppressing confessions gained through overt police brutality and outright torture, seem uncontroversial, yet even here the Court never made entirely clear which of two rival theories led to exclusion of the evidence. On one theory, the coercive measures themselves entailed a deprivation of liberty, and due process was therefore denied when these measures were utilized without first providing the suspect with adequate process. On this view, the constitutional violation was complete at the point when coercion was applied, and the resulting confession was inadmissible only because this evidentiary rule served to deter future misconduct or prevented the tainting of the criminal justice system by misconduct that had already occurred. Alternatively, the Court sometimes suggested that the deprivation of liberty came when the defendant was convicted. On this theory, a trial at which unreliable statements were introduced did not amount to the process that was due to criminal defendants.

So long as the Court confined itself to the regulation of outright brutality, this ambiguity made little difference. Violence and torture are reprehensible both because this treatment of suspects "shocks the conscience" and because a trial dominated by statements secured by these means is a mockery. Over time, however, the Court began to focus on more subtle means of coercion. For example, the Court held that denial of food or sleep, incommunicado interrogation, and subtle psychological pressure might make a confession involuntary. It also began to focus on individual characteristics of the suspect. Statements made by suspects who lacked education or sophistication, who were illiterate, or who suffered from mental abnormalities were suspect even when there was no physical coercion.

This expansion of due process protection raised urgent questions as to the purpose the protection was meant to serve. In the early cases, the Court emphasized the unreliability of confessions secured by violence or torture. In later cases, however, the Court began to suggest a vaguer rationale based upon the appropriate limits of state power over the individual, even when the application of such power produced reliable evidence. For example, in Rogers v. Richmond (365 U.S. 534 (1961)), the trial judge found that the police tactics used in the case had no impact on the reliability of the defendant's statements and told the jury that the confession's admissibility turned on its trustworthiness. The Supreme Court reversed, holding that the involuntariness question should be resolved "with complete disregard of whether or not [the suspect] in fact spoke the truth" (365 U.S. at 543).

If one's concern is unreliability, then confessions secured through both brutality and more subtle coercion are suspect. Both techniques have at least the potential to lead innocent defendants to confess. It might follow that both types of confessions should be excluded as evidence because of the possibility that they will taint the verdict. But this rationale runs up against the fact that in many other contexts (most notably eye witness identification or testimony by accomplices), courts regularly depend upon juries to filter out unreliable testimony. Moreover, the rationale fails to explain why the Court has insisted on excluding reliable confessions. For example, a confession might contain extrinsic evidence that could be known only to the perpetrator. When such a confession is secured through brutal methods, its exclusion might be justified on the ground that the law should not encourage or sanction the use of these methods. But this rationale fails to explain the exclusion of reliable confessions, and reliable evidence gained as a result of these confessions, when police utilize trickery or manipulation rather than brutality.

The short of it, then, is that there is no rationale that adequately explains all of the Court's due process doctrine. Moreover, the voluntariness approach runs into serious philosophical and practical difficulties. On the philosophical level, the Court's approach requires it to distinguish between cases where the defendant confessed because of an act of "will" and cases where the confession was the product of external forces that "overbore" the will. This distinction poses philosophical problems encountered by any abstract effort to differentiate between freedom and coercion. On the one hand, there is a sense in which all confessions are the product of choice. Even a defendant who is brutally beaten or tortured in the end "chooses" to confess. Indeed, it is the very fact that the statement cannot be secured without the victim's cooperation that makes torture so dehumanizing. Yet on the other hand, even the most "free" confession is in some sense a product of external forces. After all, a defendant who volunteers a statement to police would not have done so had there been no police to volunteer the statement to.

To be sure, this philosophical conundrum does not prevent us from sharing strong intuitions about polar cases. So long as we are in the world of the whips and electrodes on the one hand and of authentic contrition on the other, most people know where they come out. More serious problems arose, however, as the Court moved from the clear cases to the marginal ones. These difficulties, in turn, created practical problems. Because the Court never succeeded in formulating a coherent and administrable "test" for what police could legitimately do, it left the lower courts with scant guidance for resolving the many cases that the Supreme Court did not have room for on its docket. Perhaps more seriously, the police themselves lacked clear directions that they could rely upon before the fact when they decided what tactics to use against suspects.

Problems such as these ultimately led the Court to shift focus to alternative means of legal control—means that are discussed below. To be sure, as a formal matter, the Court has never abandoned the voluntariness requirement. But although due process protections remain as a theoretical limit on police tactics, the Court has shown much less interest in the voluntariness inquiry in recent years.

In the quarter century following the Miranda decision the Supreme Court reversed only two convictions on voluntariness grounds, whereas there had been twenty-three reversals during the comparable period prior to Miranda. This change might be attributable, at least in part, to improvements in police behavior, but judicial oversight of that behavior has also changed. For example, in Colorado v. Connelly (479 U.S. 157 (1986)), the Court held that personal characteristics of a defendant, including severe mental illness, did not make his statement involuntary in the absence of coercive police activity.

Moreover, even in cases where the police have resorted to various forms of coercive pressure, lower courts often admit the resulting statement after finding that under the "totality of the circumstances," the defendant's will was not overborne. These courts have routinely admitted confessions secured through threats of severe punishment, deceptive statements, and promises. They have also upheld the product of interrogations conducted with suspects who were mentally disabled or who were undergoing drug withdrawal or suffering from lack of food or sleep. As Chief Judge Richard Posner of the Seventh Circuit United States Court of Appeals has summarized the current state of the law, "The [voluntariness] formula is not taken seriously. . . . [V]ery few incriminating statements, custodial or otherwise, are held to be involuntary, though few are the product of a choice that interrogators left completely free" (United States v. Rutledge, 900 F.2d 1127, 1129 (7 B Civ. 1990)).

Additional topics

Law Library - American Law and Legal InformationCrime and Criminal LawConfessions - The Role Of Confessions, The Voluntariness Approach, The Right To Counsel Approach, The Self-incrimination Approach—historical Background