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Abstract:
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.

Criminal Law, Miranda, Fifth Amendment, Confessions, Voluntary, Involuntary

Abstract:
Since Miranda v. Arizona was decided in 1966, much scholarly attention has been devoted to both the theoretical underpinnings and the real world impact of that decision. Little attention, however, has been paid to the substance or content of the warnings. The Supreme Court has often stated that the Miranda warnings requirement is a prophylactic rule that can change and evolve. However, in spite of 40 years of legal developments and practical experience, the content of these famous four warnings has never been modified or even been subjected to systematic scrutiny.

This Article proposes that the substance of the Miranda warnings should be reconsidered as the rules of law underlying the warnings substantially evolve, and as we gain new insights into their effectiveness (or lack thereof). In light of the significant legal changes of the last four decades, and the real world experience that we have gained with the warnings during this time, Miranda's 40th anniversary presents an opportune time to reexamine the content of the warnings to ensure that they remain consistent with and continue to reflect the evolving legal principles that support and justify their existence, and to reaffirm that they remain effective in upholding and enforcing the constitutional rights of suspects.

A close examination of the warnings suggests that they are out of date. This Article argues that if the warnings were redesigned today, by a Court as mindful of properly balancing the competing interests as was the Miranda Court, they would take a different form. The first two warnings, relating to the right to remain silent, would certainly be included. However, these warnings should be buttressed by a third right to silence warning that would provide something to the effect of: If you choose to remain silent at the beginning or at any time during the interview, your silence will not be used against you as evidence to suggest that you committed a crime simply because you refused to speak.

Furthermore, the third and fourth warnings, relating to the right to counsel, would not make the updated list. In place of the two right to counsel warnings would be three new requirements, reflecting legal developments and practical lessons that have come to light since 1966. The first requirement would be a new warning as follows: If you choose to talk, you may change your mind and remain silent at any time, even if you have already spoken. The second requirement would be a rule mandating that the police to re-instruct suspects of the new Miranda warnings at intervals throughout lengthy interrogations. Finally, the police would be required to videotape all interrogations. These three new requirements would more effectively achieve the intended policy goals of the right to counsel warnings, and thus, should replace the right to counsel warnings in the prophylactic scheme.

Miranda, self-incrimination, privilege against self-incrimination, confessions, involuntary confession, due process notice, objective penalties, confession law, compulsion

Abstract:
The advent of post-conviction DNA testing in the past twenty years has spawned an Innocence Revolution, in which hundreds of Americans imprisoned or on death row for serious crimes like murder and rape have been conclusively proven innocent and released. From studying the cases of wrongful convictions, we now know that eyewitness identification is not nearly as reliable as once believed. We also know that hundreds of innocent people have been convicted through the use of junk science. such as bite mark analysis or microscopic hair comparison, which DNA testing has proven to be wildly inaccurate. Most importantly for my purposes here, we now know that suspects will confess all too often to crimes that they did not commit, leading to wrongful convictions. Of all the things that DNA has taught us about our criminal justice system, this phenomenon is perhaps the hardest to accept. The idea that a suspect would falsely confess to a crime that he did not commit seems counterintuitive and nonsensical.

For centuries, constitutional confession law in the United States has been concerned with the reliability and accuracy of confessions. Prior to admission into evidence, a court in this country had to examine whether the confession at issue was accurate and trustworthy. In the 1986 case of Colorado v. Connelly, however, the United States Supreme Court suddenly subverted reliability as a factor when considering the admissibility of a confession. Then, ironically, shortly after Connelly was decided, DNA testing started to reveal why we should be very concerned about the reliability of confessions after all. Indeed, within a decade of the Connelly decision, the false confession problem in this country had been laid bare. In this essay, taken from my talk at a symposium held by the Chapman Law Review, I attempt to shed light on this legal irony.

Wrongful convictions, false confessions, DNA

Abstract:
This article reviews Richard A. Leo’s book 'Police Interrogation and American Justice.' Prior to entering legal academia, Leo served as an associate professor of psychology and criminology, and performed groundbreaking empirical research into how police interrogators obtain confessions and how their interrogation techniques affect suspects. His body of work shines the bright light on police interrogation in American today. Leo depicts the values and structure of interrogation in a way that few, outside of the actual subjects/victims of interrogation, fully understand. Although I do not agree with all of his conclusions and proposed reforms, his work convincingly raises a point that we must heed: If we are to ensure the integrity and fairness of confessions in this country, we must adopt universal videotaping requirements across all jurisdictions, and develop new reliability tests to screen out false confessions.

Abstract:
In recent years, the FBI and other federal law agencies have greatly expanded their presence abroad, investigating everything from narcotics trade and internet fraud schemes to terrorism. This trend will undoubtedly continue in the aftermath of September 11th. A constitutional question that will be of increasing importance in this context is whether, or to what extent, U.S. law enforcement officials (hereinafter "FBI") must provide Miranda warnings to non-U.S. citizens interrogated abroad who will later be tried in the United States.

The article first addresses whether future modifications to the Miranda doctrine are permissible after Dickerson. The article concludes that despite the warnings of some scholars that Dickerson has caused Miranda to become "frozen in time," Dickerson should be read as creating a prophylactic Miranda rule that is both constitutionally-based and flexible at the same time. Thus, exceptions to the Miranda doctrine can be made, as in Quarles, in new contexts where its application is illogical or where the state's interests outweigh the civil liberties interests involved.

The article then argues that the policies behind Miranda do not always support its application abroad in the same way that it is systematically applied in the domestic setting. Indeed, as demonstrated through a series of hypothetical scenarios, a strict application of Miranda abroad would not always further the civil liberties that the doctrine was designed to protect, and would simultaneously undermine U.S. law enforcement interests by "freezing out" the United States from participating in interrogations in many foreign countries.

The article proffers that an FBI agent abroad should be required to advise a non-U.S. citizen suspect only of the rights that he enjoys in the country where the interrogation takes place, to the extent such rights can be reasonably determined by the FBI agent under the circumstances of the interrogation. In addition, if the FBI agent makes a mistake in interpreting the rights available to a given suspect under foreign law, and does not advise the suspect of a right which he in fact had, the exclusionary rule should not be employed as long as the agent misinterpreted the foreign law in good faith.

Miranda, abroad, Dickerson, Quarles, bin Laden, terrorism, Fifth Amendment, privilege against self-incrimination, Vergudo, Eisentrager

Abstract:
This Article is part two in an ongoing series. Part I, published at 51 DUKE L. J. 1703 (2002), argued that Miranda warnings should not be strictly required when U.S. agents interrogate non-U.S. citizens abroad. This Article picks up where the first left off, and asks the question: "In the absence of Miranda, do any provisions in the Bill of Rights restrict the ability of U.S. agents to obtain confessions from non-Americans abroad?"

The Article begins by examining the back up or default rules to Miranda in the domestic setting. These rules are the "due process involuntary confession rule," which holds all involuntary confessions inadmissible, and the Privilege Against Compulsory Self-Incrimination, which similarly bans "compelled" confessions. Due to the Supreme Court's preference for the due process rule, the contours of the Privilege have not been fully developed in the interrogation context post-Miranda. As a result, many courts and scholars assume that the test for admissibility under the Privilege is identical to the due process rule, and that both doctrines prohibit the introduction of "involuntary" confessions. It is a central thesis of this Article that the two doctrines are different, and that each should demand a distinct test for confession admissibility.

The Article proffers that the due process involuntary confession rule is inapplicable during interrogations by U.S. agents of non-Americans abroad. This is because the due process rule, after Colorado v. Connelly, should be interpreted as a "freestanding civil liberty" that is violated at the time that the coercive interrogation takes place. Thus, the due process rule mirrors the 4th Amendment, which is violated at the time that the search takes place, and not when the evidence seized is admitted into evidence at trial. When analyzing confession admissibility under the due process rule, an involuntary confession obtained from a non-American abroad would be admissible at trial in the United States because the constitution violation would have occurred entirely outside of the United States when the interrogation took place in the foreign country in question. Under the Supreme Court's holding in U.S. v. Verdugo-Urquidez, therefore, a non-American cannot claim protection of the Bill of Rights when the constitutional violation occurs entirely beyond the borders of the United States.

The Article then notes, however, that the Privilege Against Compulsory Self-Incrimination is different than the due process involuntary confession rule. The Privilege is a "trial right," a violation of which occurs not at the time of the interrogation, but only when the compelled confessions is introduced into evidence at trial in the United States. Thus, because a violation of the Privilege occurs within the borders of the United States, non-Americans interrogated abroad but tried in America can claim protection of the Privilege and its ban on "compelled" confessions.

This raises the next question: "Is the Privilege's ban on compelled confessions different than the ban on "involuntary" confessions under the due process rule?" While conventional wisdom might suggest these two doctrines are identical, the Article proffers that history, text, precedent and policy all suggest a different test for the Privilege. A confession should be considered "compelled" under the Privilege whenever interrogators impose an objective penalty on a suspect to provoke speech or punish silence. The Article then briefly describes how this new test for compulsion would operate in the interrogation context.

The theories in this Article are a precursor to Part III, a work in progress, which will assert that the due process involuntary confession rule and its "voluntariness" test are illegitimate vestiges of legal errors and now obsolete political maneuvers made by the Supreme Court in past decades. The proper test for confession admissibility both abroad and at home should be grounded solely in the Privilege Against Compulsory Self-Incrimination. The test should be objective, should focus solely on the police conduct rather than the state of mind of the suspect, and should ask whether or not the interrogators employed "compulsion" to obtain a confession. Part III will then examine the historical origins of the Privilege, the text of the Privilege, the policies supporting the Privilege, and how the Privilege has been interpreted in the non-interrogation context to expand on the "objective penalties" test for compulsion first set forth in Part II.

Miranda, Confessions, Due Process, Self-Incrimination