For more than a century, the Supreme Court has interpreted the Bill of Rights as prohibiting the police from obtaining involuntary confessions from suspects through the use of coercion. If asked whether this involuntary confession rule is an understandable and workable doctrine, however, a noticeable percentage of judges, prosecutors, police officers, criminal defense attorneys and law professors would answer with an unequivocal no. Basic questions concerning voluntariness and free will - whether it exists, and if so, when it exists, etc. - have puzzled philosophers for centuries and represent one of history's Gordian knots. Not surprisingly, judges have fared no better than philosophers in solving this age-old enigma since the Supreme Court first adopted voluntariness as the touchstone for constitutional confession law in 1897. The problems with the involuntary confession rule are well-documented and legion. Given the pervasive problems with the involuntary confession rule in application, it is surprising how little mainstream attention has been given to its ascendancy to power and current doctrinal legitimacy. Indeed, although it currently lies at the foundation of confession law, it is unclear from which provision in the Bill of Rights it emanates. Some believe the Fifth Amendment's Privilege Against Compulsory Self-Incrimination demands a rule that involuntary confessions are inadmissible. Others would claim that the involuntary confession rule is derived from the Due Process Clauses of the Fifth and Fourteenth Amendments. Still others would argue that both the Privilege and the Due Process Clauses are identical in this respect, and work in tandem to prohibit involuntary confessions. It is as if the voluntariness test has ruled the roost for so long that its source and doctrinal validity are no longer questioned by courts or practitioners. The thesis of this Article is that, due to legal and historical errors, the Supreme Court has unduly relied on the involuntary confession rule in confession jurisprudence for the past century. This unexplained adherence to the voluntariness test has caused the Court to ignore other important values and principles that should be considered and ultimately infused into the equation. These principles should be used to forge a new test for confession admissibility that either replaces the involuntary confession rule outright, or, at a minimum, supplements existing doctrine. Four essential points support this thesis and form the foundation of this Article. The first point is that nothing in the Bill of Rights requires, or even suggests, a voluntariness test as the primary test for confession admissibility. At no point did the Framers engraft a voluntariness standard upon us, and, like a cruel joke, make the unsolvable puzzle of free will the unavoidable sine qua non in courtrooms and interrogation rooms for time immemorial. Indeed, the word voluntary and its various permutations do not even appear anywhere in the Bill of Rights. Second, the involuntary confession rule exists today because of a series of mistakes and doctrinal complications, beginning with Bram v. United States, the Supreme Court's first constitutional confession case, and continuing even after Miranda v. Arizona seemingly rendered the rule obsolete. Third, the text of the Privilege Against Compulsory Self-Incrimination suggests a standard based on compulsion, where the focus is on the objective behavior of the interrogators, rather than voluntariness, where the focus is on the subjective state of mind of the suspect. Such a test would be more faithful and consistent with existing interpretations of the Privilege in non-interrogation contexts as well as the text and historical origins of the Privilege. Fourth, a test for confession admissibility properly based on compulsion and the Privilege would differ in many important respects from the involuntary confession rule. Although many scholars and even Supreme Court Justices who follow conventional wisdom might disagree, existing interpretations of the Privilege in non-interrogation contexts, the historical origins of the Privilege, the text of the Privilege, and relevant policy issues all argue to the contrary. The Article then delineates a new confession test, called the objective penalties test, based on the Privilege, in which the touchstone for admissibility would be compulsion rather than voluntariness. This test would hold confessions inadmissible that had been obtained by imposing an objective penalty in any form on the suspect to punish silence or provoke speech. The Article develops the objective penalties test in detail through reference to the scholarly literature in the field of philosophy, where a rich standard has been created for determining when a coercive penalty has been imposed. Importing this philosophical literature into the realm of confession law, the Article attempts to create a workable standard for determining the admissibility of confessions. In an effort to demonstrate how this objective penalties test would work in practice, the Article sets forth numerous hypothetical interrogations and analyzes how these interrogation problems would be solved under the newly proposed test.
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Apr 18, 2013
Peter Margulies 
Open Access