The New Frontier of Constitutional Confession Law - the International Arena: Exploring the Admissibility of Confessions Taken by U.S. Investigators from Non-Americans Abroad
University of Cincinnati College of Law
Georgetown Law Journal, Vol. 91, p. 851, 2003
U of Cincinnati Public Law Research Paper No. 03-08
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.
Keywords: Miranda, Confessions, Due Process, Self-Incrimination
JEL Classification: K14, K42
Date posted: November 14, 2003 ; Last revised: May 30, 2010