When does police coercion make a confession involuntary?

We're gonna get what we want, see?

Here’s the quick answer: almost never. If you’re still interested, read the rest of the post. Be warned, though. It is long.

I realize this is a slightly heavy topic for Christmas Day, but such are the conversations I have over lunch. What precipitated this line of thought is this Kansas Supreme Court decision, up for cert. before SCOTUS in the coming weeks.

In Morton, the Kansas Supreme Court held that the [police officer]‘s deliberate misleading of the defendant led to her confession being involuntary. The officer lied to Morton about her need for an attorney during the interrogation and lead her to believe that all he had were clarifying questions. The KS Supreme Court held thusly (more on Morton and CT law after the jump):

All other aspects of the circumstances surrounding this interview indicate that Morton’s statements were voluntarily made. She was a 40-year-old, college-educated woman who had been involved in a criminal investigation in this very matter. There was nothing coercive about the manner and duration of the interview, and there is no evidence she was deprived of contact with the outside world during the interview. In fact, she was explicitly told she did not have to answer any questions, she could stop the interview at any time, and she was free to leave at any time.

However, Morton had an attorney who had represented her during this criminal investigation concerning the trailers and it was her intent and desire to have the benefit of the advice and presence of counsel in this criminal investigation. Had she known Agent Pontius was conducting a criminal investigation, she would not have agreed to the interview without the advice and presence of counsel. We consider this in conjunction with the facts that Morton believed the criminal investigation had ended and the agent’s status as a criminal investigator was not patently apparent. Under these circumstances, by reason of the agent’s conduct, Morton’s participation in the interview and the statements given therein were not the product of her free and independent will. Accordingly, Morton’s statements were involuntary and, thus, inadmissible.

SCOTUS has long held that mere lies and coercion by police do not render a confession involuntary. There has to be a causal relationship between the coercive tactic and the confession. The ultimate test remains:

Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.

Of course, the State bears the burden of proving, by a mere propenderance, that the confession is voluntary. That’s not very difficult. And neither is proving that the “he has willed to confess”. In fact, it’s almost impossible to prove otherwise. Consider the cases in CT, which has essentially adopted the same test.

In State v. Lapointe [pdf], the officer lied to the defendant and told him that his fingerprints were found on the murder weapon. No problem. The supreme court writes, albeit in a footnote:

Although we find no causal relationship between the defendant’s confession and the police conduct under the facts of this case, we note that “even where there is causal connection between police misconduct and a defendant’s confession, it does not automatically follow that there has been a violation of the Due Process Clause. See, e.g., Frazier v. Cupp, [supra, 394 U.S. 731, 739].” Colorado v. Connelly, supra, 479 U.S. 164 n.2. For instance, in Frazier, even if the defendant would not have confessed but for the police statement about his associate’s inculpatory remarks, the confession was not thereby rendered involuntary. The inquiry is not merely whether the defendant would have confessed ‘but for” the police conduct, but rather whether the particular defendant’s capacity to resist the police pressure was overborne. See State v. DeAngelis, 200 Conn. 224, 232-33 (1986) (coercive police conduct must overbear defendant’s “will to resist and bring about confessions not freely self-determined” [internal quotation marks omitted]). If the police conduct is insufficient to overcome the defendant’s capacity to resist but the defendant still elects to confess, due process is not offended.

I will give 100 Italian Lire to anyone who can decode that for me. (A footnote in Lapointe and DeAngelis is that the length of an interrogation means nothing. Lapointe was interrogated for over 8 hours and DeAngelis for 10 1/2. Awesome.) The most recent treatment of voluntariness in CT (that I found) was in State v. Pinder [pdf]. In Pinder, the police stat[ed] falsely that the polygraph results would be used against him in court; present[ed] a fictitious Federal Bureau of Investigation (FBI) profile of the killer that included the view that the killer knew the victim; stat[ed] that the victim’s parents had a right to know the circumstances of their son’s death; and emphasiz[ed] that the defendant would be better off if he told the truth to the examiner.

It’s all okay. Doesn’t matter. Because the defendant had “the will to confess”. So the bottom line is that the totality of circumstances will almost always militate toward a finding of voluntariness. Short of a mentally retarded (is it okay to say that in the legal context?) defendant (and even then…State v. Toste, 198 Conn. 584 (confessions of mildly retarded defendant with IQ in 68 to 71 range held voluntary)), it is near impossible to prove an involuntary confession. The Court in Pinder did provide some guidance:

Factors that may be taken into account, ‘upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence;  the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the  use of physical punishment, such as the deprivation of food and sleep.’ . . . [State v. Madera, 210 Conn. 22, 41 (1989)]; see also State  v. Shifflett, [199 Conn. 718, 728 (1986)].

So, um…torture?

Now, it is worth pointing out that Pinder was in 1999 and I haven’t found a case since then that re-examined this issue (if there is one, I’m sure some loyal reader will send me an e-mail). Given the greater attention paid to wrongful convictions and forced confessions in recent years, defendants might receive more favorable results if scientific evidence is presented at the motions in limine or during the trial itself. All defense lawyers would be well-served by retaining or consulting a false confession expert these days. There is plenty of scientific evidence available and numerous studies have been conducted. I would love to see appellate court tackle this issue again.

Back to Morton. As the brief in opposition points out, the facts in Morton are very, very unlikely to occur again. I would be surprised if SCOTUS granted cert., and frankly, somewhat worried. It isn’t a case that they need to decide.

An interesting footnote in the Morton cert. petition is that the Respondent (the defendant Morton) filed the brief in opposition herself. While it is clearly written by a non-lawyer, it is actually rather well written for a pro-se party.

So what does this teach us? That you should never, ever confess. Ask unequivocally for a lawyer and keep your mouth shut. If you do confess, your chances at suppressing that confession are slim to none unless you were waterboarded. Except if you consult an expert on false confessions, in which case your chances go solidly into the “slim” column.

Merry Christmas!