Constraint and confession

Denver University Law Review

Volumn 74, Issue 4, 1997, Pages 957-977

  Alschuler, Albert W ^a,b,c  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

^b HARVARD COLLEGE   (United States)

^c HARVARD LAW SCHOOL   (United States)

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EID: 0041676816     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (135)

1. See ROBERT L. HALE, FREEDOM THROUGH LAW: PUBLIC CONTROL OF PRIVATE GOVERNING POWER 109-33 (1952). Alan Wertheimer says that a "crucial defect of the philosophical literature on coercion" is its "insufficient sensitivity to the contextual character of coercion claims." ALAN WERTHEIMER, COERCION 181 (1987). Although Wertheimer is a political scientist and a philosopher, he is enough of a country lawyer (honorary) to overcome this failing. Even Wertheimer, however, like Robert Nozick, Joseph Raz, and virtually every other contemporary philosopher who has addressed the subject of coercion, treats the distinction between threats and offers as crucial to an understanding of the concept See id. at 202. Although the threat-offer distinction is appropriate in many contexts, this article notes that lawyers and judges have disregarded it in coerced confession cases for more than two hundred years. The article contends, more-over, that they were wise to do so. See infra text accompanying notes 48-63. In at least this one doctrinal corner, I believe that country lawyers have developed a sounder understanding of the context-specific issues than philosophers have.
2. See ROBERT L. HALE, FREEDOM THROUGH LAW: PUBLIC CONTROL OF PRIVATE GOVERNING POWER 109-33 (1952). Alan Wertheimer says that a "crucial defect of the philosophical literature on coercion" is its "insufficient sensitivity to the contextual character of coercion claims." ALAN WERTHEIMER, COERCION 181 (1987). Although Wertheimer is a political scientist and a philosopher, he is enough of a country lawyer (honorary) to overcome this failing. Even Wertheimer, however, like Robert Nozick, Joseph Raz, and virtually every other contemporary philosopher who has addressed the subject of coercion, treats the distinction between threats and offers as crucial to an understanding of the concept See id. at 202. Although the threat-offer distinction is appropriate in many contexts, this article notes that lawyers and judges have disregarded it in coerced confession cases for more than two hundred years. The article contends, more-over, that they were wise to do so. See infra text accompanying notes 48-63. In at least this one doctrinal corner, I believe that country lawyers have developed a sounder understanding of the context-specific issues than philosophers have.
3. WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE § 6.2(b), at 295 (1985).
4. The Supreme Court has characterized the issue in coerced confession cases as whether the defendant's "will was overborne." See, e.g., Arizona v. Fulminante, 499 U.S. 279, 288 (1991); Mincey v. Arizona, 437 U.S. 385, 401-02 (1978); Lynumn v. Illinois, 372 U.S. 528, 534 (1963); Culombe v. Connecticut, 367 U.S. 568, 576 (1961); id. at 602 (opinion of Frankfurter, J.); Hopt v. Utah, 110 U.S. 574, 585 (1884); see also Haynes v. Washington, 373 U.S. 503, 515 (1963) (declaring that courts must assess the effect of interrogation practices on the "mind and will of the accused"); Joseph D. Grano, Miranda's Constitutional Difficulties: A Reply to Professor Schulhofer, 55 U. CHI. L. REV. 174, 182 (1988); Joseph D. Grano, Voluntariness, Free Will, and the Law of Confessions, 65 VA. L. REV. 859, 885-86 (1979); Welsh S. White, Confessions Induced by Broken Government Promises, 43 DUKE L.J. 947, 951 (1994).
5. The Supreme Court has characterized the issue in coerced confession cases as whether the defendant's "will was overborne." See, e.g., Arizona v. Fulminante, 499 U.S. 279, 288 (1991); Mincey v. Arizona, 437 U.S. 385, 401-02 (1978); Lynumn v. Illinois, 372 U.S. 528, 534 (1963); Culombe v. Connecticut, 367 U.S. 568, 576 (1961); id. at 602 (opinion of Frankfurter, J.); Hopt v. Utah, 110 U.S. 574, 585 (1884); see also Haynes v. Washington, 373 U.S. 503, 515 (1963) (declaring that courts must assess the effect of interrogation practices on the "mind and will of the accused"); Joseph D. Grano, Miranda's Constitutional Difficulties: A Reply to Professor Schulhofer, 55 U. CHI. L. REV. 174, 182 (1988); Joseph D. Grano, Voluntariness, Free Will, and the Law of Confessions, 65 VA. L. REV. 859, 885-86 (1979); Welsh S. White, Confessions Induced by Broken Government Promises, 43 DUKE L.J. 947, 951 (1994).
6. The Supreme Court has characterized the issue in coerced confession cases as whether the defendant's "will was overborne." See, e.g., Arizona v. Fulminante, 499 U.S. 279, 288 (1991); Mincey v. Arizona, 437 U.S. 385, 401-02 (1978); Lynumn v. Illinois, 372 U.S. 528, 534 (1963); Culombe v. Connecticut, 367 U.S. 568, 576 (1961); id. at 602 (opinion of Frankfurter, J.); Hopt v. Utah, 110 U.S. 574, 585 (1884); see also Haynes v. Washington, 373 U.S. 503, 515 (1963) (declaring that courts must assess the effect of interrogation practices on the "mind and will of the accused"); Joseph D. Grano, Miranda's Constitutional Difficulties: A Reply to Professor Schulhofer, 55 U. CHI. L. REV. 174, 182 (1988); Joseph D. Grano, Voluntariness, Free Will, and the Law of Confessions, 65 VA. L. REV. 859, 885-86 (1979); Welsh S. White, Confessions Induced by Broken Government Promises, 43 DUKE L.J. 947, 951 (1994).
7. Yale Kamisar suggested as early as 1963 that the Supreme Court's talk about overborne wills might conceal its approval and disapproval of particular interrogation techniques. Yale Kamisar, What Is an Involuntary Confession?: Some Comments on Inbau and Reid's Criminal Interrogation and Confessions, 17 RUTGERS L. REV. 728 (1963), reprinted in YALE KAMISAR, POLICE INTERROGATION AND CONFESSIONS: ESSAYS IN LAW AND POLICY 14 (1980) [hereinafter KAMISAR, ESSAYS].
8. Yale Kamisar suggested as early as 1963 that the Supreme Court's talk about overborne wills might conceal its approval and disapproval of particular interrogation techniques. Yale Kamisar, What Is an Involuntary Confession?: Some Comments on Inbau and Reid's Criminal Interrogation and Confessions, 17 RUTGERS L. REV. 728 (1963), reprinted in YALE KAMISAR, POLICE INTERROGATION AND CONFESSIONS: ESSAYS IN LAW AND POLICY 14 (1980) [hereinafter KAMISAR, ESSAYS].
9. Short of gratuitously penalizing improper police conduct that did not cause a suspect's confession.
10. For an argument that this position accords with the historic purposes of the Fifth Amendment privilege, see Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to Remain Silent, 94 MICH. L. REV. 2625 (1996).
11. In judging the reach of exclusionary rules in criminal cases, courts usually speak of "derivative evidence," see Nix v. Williams, 467 U.S. 431, 443 (1984), and "the fruit of the poisonous tree," see Oregon v. Elstad, 470 U.S. 298, 298 (1985), rather than of "proximate cause." They ask whether the "taint of the primary illegality has dissipated," see United States v. Cox, 475 F.2d 837, 841 (9th Cir. 1973), rather than whether an "independent intervening cause" has broken the causal chain. So far as I can tell, this departure from the terminology used in other legal areas marks no departure in the principles applied. See, e.g., Wong Sun v. United States, 371 U.S. 471, 487-88 (1963) (recognizing that even when wrongful governmental conduct is a "but-for" cause of a confession, a suspect's decision to confess may qualify as an independent intervening cause); Brown v. Illinois, 422 U.S. 590 (1975) (recognizing that courts follow the consequences of purposeful police misconduct further than they do the consequences of inadvertent misconduct).
12. 479 U.S. 157 (1986).
13. See also Miller v. Fenton, 474 U.S. 104, 109 (1985) ("[C]ertain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment").
14. LAFAVE & ISRAEL, supra note 2, § 6.2(b), at 296.
15. See George C. Thomas III, A Philosophical Account of Coerced Self-Incrimination, 5 YALE J.L. & HUMAN. 79, 85 (1993) ("[T]he Framers were concerned about purposive, governmental coercion .... If the government did not coerce the confession, concluding that [a suspect] acted unfreely does not seem to be adequate grounds for exclusion.").
16. U. S. CONST, art §, § 2.
17. In Connelly, the auditory hallucinations of a mentally ill killer directed him either to commit suicide or to confess. He then confessed to a uniformed officer on a downtown Denver street. Connelly, 479 U.S. at 161. His case was little different from one in which an insane person writes a letter to the police department admitting his crimes. See George C. Thomas III & Marshall D. Bilder, Criminal Law: Aristotle's Paradox and the Self-Incrimination Puzzle, 82 J. CRIM. L. & CRIMINOLOGY 243, 261 n.95 (1991) (reporting the comments of Yale Kamisar).
18. See Connelly, 479 U.S. at 164-65 (noting that the police were unaware of the defendant's mental illness at the time of his confession and recognizing that a police officer's exploitation of known mental disabilities may require exclusion of a suspect's confession).
19. See Stovall v. Denno, 388 U.S. 293 (1967); Foster v. California, 394 U.S. 440 (1969); Neil v. Biggers, 409 U.S. 188 (1972).
20. But see George E. Dix, Federal Constitutional Confession Law: The 1986 and 1987 Supreme Court Terms, 67 TEX. L. REV. 231, 275-76 (1988) (calling the Connelly result "insupportable" and declaring, "[A] total deconstitutionalization of traditionally important reliability issues is unjustified"); Yale Kamisar, Response: On the "Fruits" of Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 MICH. L. REV. 929, 946 (1995) (maintaining that Connelly overemphasized "the police methods rationale").
21. But see George E. Dix, Federal Constitutional Confession Law: The 1986 and 1987 Supreme Court Terms, 67 TEX. L. REV. 231, 275-76 (1988) (calling the Connelly result "insupportable" and declaring, "[A] total deconstitutionalization of traditionally important reliability issues is unjustified"); Yale Kamisar, Response: On the "Fruits" of Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 MICH. L. REV. 929, 946 (1995) (maintaining that Connelly overemphasized "the police methods rationale").
22. More than 40 years ago, Bernard Meltzer thought it obvious that a confession could be voluntary even if it were the product of hallucination. He noted that the evidentiary requirement that confessions be corroborated rests on the fear of "alse, albeit voluntary confessions." Bernard Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury, 21 U. CHI. L. REV. 317, 320 & n.15 (1954).
23. See Connelly, 479 U.S. at 167 (The reliability of a confession "is a matter to be governed by the evidentiary laws of the forum ... and not by the Due Process Clause of the Fourteenth Amendment.").
24. Symposium, Coercion: An Interdisciplinary Examination of Coercion, Exploitation, and the Law, 74 DENV. U. L. REV. 875 (1997).
25. See 3 ARISTOTLE, ETHICS § 1 (A. Wardman & J. Creed trans., 1963); PLATO, THE REPUBLIC 250 (F. M. Cornford trans., 1945) (attributing to human beings "an element of free choice, which makes us, and not Heaven, responsible for the good and evil in our lives").
26. See 3 ARISTOTLE, ETHICS § 1 (A. Wardman & J. Creed trans., 1963); PLATO, THE REPUBLIC 250 (F. M. Cornford trans., 1945) (attributing to human beings "an element of free choice, which makes us, and not Heaven, responsible for the good and evil in our lives").
27. Herbert Morris, Persons and Punishment, 52 THE MONIST 475, 486 (1968).
28. IRIS DEMENT, Let the Mystery Be, in SONGS OF IRIS (Forerunner Music, Inc.), recorded on IRIS DEMENT, INFAMOUS ANGEL (Rounder Records Corp. 1992).
29. IRIS DEMENT, Let the Mystery Be, in SONGS OF IRIS (Forerunner Music, Inc.), recorded on IRIS DEMENT, INFAMOUS ANGEL (Rounder Records Corp. 1992).
30. I do not contend that courts can always avoid messy, mind-boggling inquiries into free will. The duress defense in criminal cases requires examination of whether a reasonable person could have resisted the unlawful pressure to which a defendant was subjected, and courts must assess individual mental capacity in contested will cases and other cases. Situations in which courts must assess only the mental or moral responsibility of an allegedly coerced actor seem very different from those in which they should focus as much or more on the legal rights or moral entitlements of an allegedly coercing party. In judging the voluntariness of a confession under the Constitution, I believe that the all-but-exclusive focus should be on the conduct of the governmental officers alleged to have produced the confession, and on the government's entitlement to receive this confession in evidence. But see WERTHEIMER, supra note 1, at 110 (claiming that when Supreme Court confession decisions focus on either police misconduct or reliability they disregard "the core of the voluntariness principle, namely, the protection of the autonomy of the agent"). Similarly, I suspect that the free will inquiry is unproductive in contract duress cases - cases in which courts ought again to focus primarily on the conduct of the allegedly coercing party. In fact, however, courts focus more often on the subjective effect of the alleged coercion. See, e.g., Laemmar v. J. Walter Thompson Co., 435 F.2d 680, 682 (7th Cir. 1970) (defining duress as a threat that "'has left the individual bereft of the quality of mind essential to the making of a contract"' (quoting Kaplan v. Kaplan, 182 N.E.2d 706, 709 (III. 1962)); Wolf v. Marlton Corp., 154 A.2d 625, 628 (N.J. Super. 1959) ('"[D]uress is tested, not by the nature of the threats, but rather by the state of mind induced thereby in the victim'" (quoting Rubenstein v. Rubenstein, 120 A.2d 11, 15 (N.J. 1956)). Terms like duress and coercion do seem to focus on individual agency or autonomy, but unbending linguistic precision could threaten the ability of the concept of voluntariness to serve its protean purposes. See supra note 1 and accompanying text
31. Compare Justice Holmes's remark in a letter to Alice Stopford Green: "I said to a lady at dinner the other night that morals were a contrivance of man to take himself seriously, which means that the philosophers ... make them ... an excuse for their pretention to be on the ground floor and personal friends of God." Letter from Oliver W. Holmes to Alice S. Green (Feb. 7, 1909) (quoted in Sheldon M. Novick, Justice Holmes's Philosophy, 70 WASH. U. L. Q. 703, 721 (1992)).
32. JEAN PAUL SARTRE, BEING AND NOTHINGNESS: AN ESSAY ON PHENOMENOLOGICAL ONTOLOGY 26 (Hazel E. Barnes trans., 1966).
33. See Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 465 (1897) ("The postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. If there is such a thing as a phenomenon without these fixed quantitative relations, it is a miracle.").
34. See Louis Michael Seidman, Rubashov's Question: Self-Incrimination and the Problem of Coerced Preferences, 1 YALE J.L. & HUMAN. 149, 173 (1990) ("Much of modern social science, political theory, philosophy, and literary theory attempts to demonstrate that desires and beliefs are inevitably intersubjective and social. It is not meaningful to talk about disembodied preferences."). MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 20-21 (1987) (suggesting that a question of duress arises in every contracts case because "it is an open question ... whether the contract would have been made had each party had other physically imaginable though socially unavailable options accessible to him"). But see WERTHEIMER, supra note 1, at 261 ("Those who argue ... that socialization limits freedom would do well to remember that not everything about a person or his condition can be said to limit his freedom without devouring the self who is capable of being constrained and whose freedom is to be valued.").
35. See Louis Michael Seidman, Rubashov's Question: Self-Incrimination and the Problem of Coerced Preferences, 1 YALE J.L. & HUMAN. 149, 173 (1990) ("Much of modern social science, political theory, philosophy, and literary theory attempts to demonstrate that desires and beliefs are inevitably intersubjective and social. It is not meaningful to talk about disembodied preferences."). MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 20-21 (1987) (suggesting that a question of duress arises in every contracts case because "it is an open question ... whether the contract would have been made had each party had other physically imaginable though socially unavailable options accessible to him"). But see WERTHEIMER, supra note 1, at 261 ("Those who argue ... that socialization limits freedom would do well to remember that not everything about a person or his condition can be said to limit his freedom without devouring the self who is capable of being constrained and whose freedom is to be valued.").
36. See supra note 3.
37. See WERTHEIMER, supra note 1, at 204 ("It is important to see that the distinction between threats and offers is not a function of the distance between the options or their efficacy in securing the desired response.").
38. See KELMAN, supra note 27, at 22 (attributing to Robert Nozick the view that "[a]n offer is a proposition the promisor would choose to receive whether he accepts it or not, a threat a proposition the promisor would sooner never have heard").
39. For reasons why, in confession cases, governmental threats and promises should be treated as wrongful and coercive, however, see infra text accompanying notes 48-63. Joseph Raz writes, "Coercive threats differ from offers ... in that the former reduce the options available to the person to whom they are addressed whereas offers never worsen and often improve them." JOSEPH RAZ, THE MORALITY OF FREEDOM 150 (1986). This statement is accurate only if the baseline for determining whether options are reduced or enhanced is normative and/or sociological (options that a person is entitled to have or reasonably expects to have) rather than the status quo ante (options that a person has in fact prior to the offer or threat). See infra text accompanying notes 41-47; WERTHEIMER, supra note 1, at 205 ("In defining [an offeree's] baseline, we do not take a high-speed snapshot of [the offeree's] present state of affairs.").
40. This is not to deny that the foreseeable effect of an offer on an offeree's psyche may be relevant in assessing its moral character.
41. See IMMANUEL KANT, CRITIQUE OF PURE REASON 633 (Norman K. Smith trans., 1965); IMMANUEL KANT, PROLEGOMENA TO ANY FUTURE METAPHYSICS § 53 (Paul Carus trans., 1949).
42. See IMMANUEL KANT, CRITIQUE OF PURE REASON 633 (Norman K. Smith trans., 1965); IMMANUEL KANT, PROLEGOMENA TO ANY FUTURE METAPHYSICS § 53 (Paul Carus trans., 1949).
43. See DAVID HUME, AN ENQUIRY CONCERNING HUMAN UNDERSTANDING § VIII (1953).
44. HARRY G. FRANKFURT, THE IMPORTANCE OF WHAT WE CARE ABOUT 47-57 (1988).
45. Id.
46. Thomas & Bilder, supra note 13, at 270-71. Thomas and Bilder do not contend that Frankfurt's approach provides a workable standard for identifying individual involuntary confessions. They do, however, defend the presumption of Miranda v. Arizona, 384 U.S. 436 (1966), that all confessions produced by custodial interrogation are involuntary on the ground that suspects who do not volunteer confessions generally have a second-order desire not to want to want to confess. Thomas & Bilder, supra note 13, at 270-71.
47. It is also inconsistent with the economist's concept of revealed preferences - the idea that a person reveals what she wants by what she does. For a hard-nosed economist or a country lawyer, it is the bottom line that counts. Saying that you want to do something but that you do not want to want to do it is just whining.
48. For an apparently serious discussion of this possibility, see FRANKFURT, supra note 35, at 21.
49. The concept of first-order and second-order preferences does make sense in some contexts - for example, that in which a dieter asks a friend not to give him cheesecake even if he begs (asks the friend, in other words, to honor his second-order rather than his first-order desire). See Cass R. Sunstein, Legal Interference With Private Preferences, 53 U. CHI. L. REV. 1129 (1986).
50. Thomas & Bilder, supra note 13, at 244; see ARISTOTLE, supra note 20, at § 1.
51. Wigmore wrote that "all conscious utterances are and must be voluntary," adding that "as between the rack and a false confession, the latter would usually be considered the less disagreeable; but it is nonetheless voluntary." 2 JOHN H. WIGMORE, A TREATISE ON THE ANGLOAMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 824 (2d ed. 1923).
52. See Don Locke, Three Concepts of Free Action: I, in MORAL RESPONSIBILITY 97, 109 (J. Fisher ed., 1986).
53. See WERTHEIMER, supra note 1, at 10.
54. A tougher case might be one in which a wrongful threat causes an action that the allegedly coerced actor does not regret or even welcomes. Don Locke suggests the case of a pilot flying to Omaha who is directed by a gunman to fly to Cuba instead. The pilot secretly prefers Cuba and is delighted that he will be able to visit his mistress in Havana. See Locke, supra note 43, at 100. For the purposes that matter to country lawyers - deciding whether the pilot should be punished criminally or held civilly liable for breach of contract - I have no difficulty concluding that he has been coerced.
55. Joel Feinberg observes that one may use either a "statistical" or a "moral" test to mark the relevant baseline. JOEL FEINBERG, HARM TO SELF 219 (1986). For reasons explained in the text, I believe that the two tests blend together in practice.
56. For a thoughtful discussion of this issue that reaches a more ambiguous conclusion, see Robert Nozick, Coercion, in PHILOSOPHY, POLITICS, AND SOCIETY 101, 115-16 (Peter Laslett et al. eds., 1972); see also WERTHEIMER, supra note 1, at 212 (advocating the use of multiple baselines and apparently treating each as equally legitimate). But see id. at 217, 242 (treating the "moral" baseline as primary or determinative in most situations).
57. See Rex v. Warickshall, 168 Eng. Rep. 234 (Cr. Cas. 1783); Rex v. Rudd, 98 Eng. Rep. 1114, 1116 (1775) (Mansfield, J.).
58. 110 U.S. 574 (1884).
59. Hopt, 110 U.S. at 584.
60. Wilson v. United States, 162 U.S. 613, 622 (1896).
61. 168 U.S. 532 (1897).
62. Bram, 168 U.S. at 542-43.
63. It did so first in guilty plea cases, Brady v. United States, 397 U.S. 742, 754 (1970), and then in out-of-court confession cases, Arizona v. Fulminate, 499 U.S. 279, 285 (1991) (declaring that Bram "does not state the standard for determining the voluntariness of a confession").
64. When the Court abandoned its categorical disapproval of confessions induced by promises of leniency, it endorsed a test of voluntariness that condemned "promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes)." Brady, 397 U.S. at 755.
65. See supra text accompanying notes 2-3. Of course coercion cannot always be defined in terms of improper human influences on choice, for coercion is not always improper. Our law appropriately coerces all of us not to kill or steal.
66. See, e.g., Fikes v. Alabama, 352 U.S. 191, 197 (1957); Haynes v. Washington, 373 U.S. 503, 514 (1963).
67. So long as the number of defendants who resist the pressure to confess remains small, increasing their punishment need not be costly. One can only guess, for example, whether legislatures and sentencing commissions would have set the same minimum and guideline sentences if promises of leniency had provided no escape hatch and taxpayers truly were required to pay the costs of imposing these sentences on all convicted offenders. See Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CAL. L. REV. 652, 658-60, 687-89 (1981) (offering a fuller assessment of the difficulty of discovering an appropriate baseline and of separating threats from promises).
68. For a discussion of the strained rationales sometimes offered for rewarding confessions - for example, the claim that even confessions prompted by promises of leniency manifest remorse - see id. at 661-83, 718-23.
69. This argument raises the question whether the law of coercion can properly be used to condemn practices that are offensive for reasons other than their harmful effects on offerees. For example, could an offer that benefited a suspect be regarded as coercive because it was incompatible with the public interest or with sound principles of justice? The case of a confession induced by a large cash bribe may suggest an affirmative answer. When a suspect has sought to escape the consequences of an offensive agreement, courts may not pause to consider just why the agreement is offensive. Moreover, departures from desert-based sentencing seem inconsistent with the dignity of defendants as well as harmful to the public. (Of course a defendant who was less interested in his dignity than in the size of his bank account or the length of his sentence might not appreciate my concern).
70. Richard Ofshe & Richard Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 DENV. U. L. REV. 979, 994-96 (1997).
71. Rex v. Warickshall, 168 Eng. Rep. 234, 255 (Cr. Cas. 1783).
72. See supra text accompanying notes 15-16.
73. 465 P.2d 17 (Cal. 1970).
74. MacPherson, 465 P.2d at 19-20.
75. Id. at 20 (quoting In re Cameron, 439 P.2d 633, 639 (Cal. 1960), and Blackburn v. Alabama, 361 U.S. 199, 208 (1960)).
76. I see little reason to doubt the truth of the defendant's statements, and even if I did, I would see little reason to take the reliability issue from the jury.
77. As I have argued elsewhere, even the ruling in Miranda v. Arizona, 384 U.S. 436 (1966), is compatible with this view of the Constitution. See Alschuler, supra note 6, at 2629-30.
78. Miranda, 384 U.S. at 448-55.
79. Fred E. Inbau, Police Interrogation - A Practical Necessity, 52 J. CRIM. L. CRIMINOLOGY & POL. SCI. 16 (1961).
80. Before asking a question, an officer must say, "May I?," and receive an affirmative answer. He must inform an arrested person of his rights even when this person already knows them. Miranda, 384 U.S. at 468-69. He also must afford the arrested person access to an advisor, one who may be provided graciously without charge. Id. at 472-73. If the arrested person says, "I'd rather not," the officer must retire for a time. Then, if he does so politely, he may ask the arrested person to reconsider. Michigan v. Mosley, 423 U.S. 96 (1975). If, however, the arrested person says "I'd like to see a lawyer," the officer may not request reconsideration, however long the officer waits and however polite his request. Edwards v. Arizona, 451 U.S. 477 (1981). Most of all, an officer must not be indelicate - for example, by mentioning the desirability of burying a murder victim while the murderer is present his lawyer is not. Brewer v. Williams, 430 U.S. 387 (1977). These rules of civility are found, not in the works of Emily Post, Amy Vanderbilt, and Miss Manners, but in the Fifth, Sixth, and Fourteenth Amendments of the Constitution of the United States.
81. In the post-Miranda era, the refinement of the mansion has proceeded to the doorway of the gatehouse but no farther. See Yale Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in YALE KAMISAR ET AL., CRIMINAL JUSTICE IN OUR TIME 19 (A.E. Dick Howard ed., 1965). When Miranda, the housekeeper, arrived from the mansion, she did not in fact clean the gatehouse. She did a little light dusting and moved an attractive rug over the dirt.
82. See Paul G. Cassell & Brett S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. REV. 839, 859 (1996) (84% of 129 interrogated suspects in Salt Lake County waived their Miranda rights); Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 286 (1996) (78% of the suspects in 182 directly observed or recorded police interrogations in California waived their Miranda rights, and prior record was the only statistically significant predictor of their choices: "[W]hile 89% of the suspects with a misdemeanor record and 92% of the suspects without any record waived their Miranda rights, only 70% of the suspects with a felony record waived their Miranda rights.").
83. See Paul G. Cassell & Brett S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. REV. 839, 859 (1996) (84% of 129 interrogated suspects in Salt Lake County waived their Miranda rights); Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 286 (1996) (78% of the suspects in 182 directly observed or recorded police interrogations in California waived their Miranda rights, and prior record was the only statistically significant predictor of their choices: "[W]hile 89% of the suspects with a misdemeanor record and 92% of the suspects without any record waived their Miranda rights, only 70% of the suspects with a felony record waived their Miranda rights.").
84. As Welsh White notes, the prevalence of police deception is evidenced both by its frequent appearance in reported cases and by the importance that police interrogation manuals afford it. See Welsh S. White, Police Trickery in Inducing Confessions, 127 U. PA. L. REV. 581, 581-82 (1979)
85. [hereinafter cited as White, Police Trickery]. Among the many examples of police deception cited by White are Oregon v. Mathiason, 429 U.S. 492 (1977) (per curiam) (obtaining confession after falsely telling a suspect that his fingerprints had been found at the scene of the crime); Michigan v. Mosley, 423 U.S. 96 (1975) (obtaining confession after falsely telling a suspect that another suspect had named him the gunman); United States ex rel. Galloway v. Fogg, 403 F. Supp. 248 (S.D.N.Y. 1975) (misrepresenting the extent to which other people had implicated the suspect); Moore v. Hopper, 389 F. Supp. 931 (M.D. Ga. 1974), aff'd mem., 523 F.2d 1053 (5th Cir. 1975) (telling a suspect that the murder weapon had been recovered when it had not); State v. Cobb, 566 P.2d 285 (Ariz. 1977) (telling a suspect that his fingerprints had been found at the scene of the crime when they had not). For descriptions of many more reported cases in which the police obtained confessions by misrepresenting the incriminating evidence,
86. see Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 CONN. L. REV. 425, 429-30 (1996).
87. Louis Michael Seidman notes that the Supreme Court has rarely found confessions involuntary in the post-Miranda period and that "lower courts have adopted an attitude toward voluntariness claims that can only be called cavalier." Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 745-46 (1992). He concludes, "Miranda ... is best characterized as a retreat from the promise of liberal individualism brilliantly camouflaged under the cover of bold advance." Id.; see also Peter Arenella, Miranda Stories, 20 HARV. J.L. & PUB. POL'Y 375, 385 (1997) (doubting that "Miranda has done anything to eliminate or reduce the mental coercion police employ to persuade suspects to incriminate themselves").
88. Louis Michael Seidman notes that the Supreme Court has rarely found confessions involuntary in the post-Miranda period and that "lower courts have adopted an attitude toward voluntariness claims that can only be called cavalier." Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 745-46 (1992). He concludes, "Miranda ... is best characterized as a retreat from the promise of liberal individualism brilliantly camouflaged under the cover of bold advance." Id.; see also Peter Arenella, Miranda Stories, 20 HARV. J.L. & PUB. POL'Y 375, 385 (1997) (doubting that "Miranda has done anything to eliminate or reduce the mental coercion police employ to persuade suspects to incriminate themselves").
89. Richard J. Ofshe & Richard A. Leo, The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions, 16 STUD. IN L., POL. & SOC'Y 189, 198 (1997).
90. See id. at 196-203.
91. See Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 109 (1997) [hereinafter cited as White, False Confessions); GILSI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 228 (1992). In addition, "[m]ental health experts have long been aware of the risk that a mentally retarded suspect's eagerness to please authority figures will lead him to confess falsely." White, False Confessions, supra, at 123. Some innocent suspects confess primarily to "escape from a stressful or an intolerable situation," see GUDJONSSON, supra, at 228, and some disturbed and/or attention-seeking people confess falsely even without prompting by the police. See Connelly, 479 U.S. at 174 (Brennan, J., dissenting). For an indication of the frequency of known false confessions (no more than the tip of an iceberg), see White, False Confessions, supra, at 108-09 & nn.26 & 29 (citing a number of studies including Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 57 tbl.6 (1987) (reporting "coerced or other false confession[s]" responsible for erroneous convictions in 49 out of 350 miscarriages of justice in potentially capital cases)); see also Richard A. Leo & Richard F. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation (May 30, 1997) (unpublished paper presented at the Annual Meeting of the Law and Society Association, St. Louis, Missouri) (discussing 34 "proven" false confessions, 18 "presumed" false confessions, and eight "highly probable" false confessions).
92. See Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 109 (1997) [hereinafter cited as White, False Confessions); GILSI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 228 (1992). In addition, "[m]ental health experts have long been aware of the risk that a mentally retarded suspect's eagerness to please authority figures will lead him to confess falsely." White, False Confessions, supra, at 123. Some innocent suspects confess primarily to "escape from a stressful or an intolerable situation," see GUDJONSSON, supra, at 228, and some disturbed and/or attention-seeking people confess falsely even without prompting by the police. See Connelly, 479 U.S. at 174 (Brennan, J., dissenting). For an indication of the frequency of known false confessions (no more than the tip of an iceberg), see White, False Confessions, supra, at 108-09 & nn.26 & 29 (citing a number of studies including Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 57 tbl.6 (1987) (reporting "coerced or other false confession[s]" responsible for erroneous convictions in 49 out of 350 miscarriages of justice in potentially capital cases)); see also Richard A. Leo & Richard F. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation (May 30, 1997) (unpublished paper presented at the Annual Meeting of the Law and Society Association, St. Louis, Missouri) (discussing 34 "proven" false confessions, 18 "presumed" false confessions, and eight "highly probable" false confessions).
93. See Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 109 (1997) [hereinafter cited as White, False Confessions); GILSI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 228 (1992). In addition, "[m]ental health experts have long been aware of the risk that a mentally retarded suspect's eagerness to please authority figures will lead him to confess falsely." White, False Confessions, supra, at 123. Some innocent suspects confess primarily to "escape from a stressful or an intolerable situation," see GUDJONSSON, supra, at 228, and some disturbed and/or attention-seeking people confess falsely even without prompting by the police. See Connelly, 479 U.S. at 174 (Brennan, J., dissenting). For an indication of the frequency of known false confessions (no more than the tip of an iceberg), see White, False Confessions, supra, at 108-09 & nn.26 & 29 (citing a number of studies including Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 57 tbl.6 (1987) (reporting "coerced or other false confession[s]" responsible for erroneous convictions in 49 out of 350 miscarriages of justice in potentially capital cases)); see also Richard A. Leo & Richard F. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation (May 30, 1997) (unpublished paper presented at the Annual Meeting of the Law and Society Association, St. Louis, Missouri) (discussing 34 "proven" false confessions, 18 "presumed" false confessions, and eight "highly probable" false confessions).
94. See Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 109 (1997) [hereinafter cited as White, False Confessions); GILSI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 228 (1992). In addition, "[m]ental health experts have long been aware of the risk that a mentally retarded suspect's eagerness to please authority figures will lead him to confess falsely." White, False Confessions, supra, at 123. Some innocent suspects confess primarily to "escape from a stressful or an intolerable situation," see GUDJONSSON, supra, at 228, and some disturbed and/or attention-seeking people confess falsely even without prompting by the police. See Connelly, 479 U.S. at 174 (Brennan, J., dissenting). For an indication of the frequency of known false confessions (no more than the tip of an iceberg), see White, False Confessions, supra, at 108-09 & nn.26 & 29 (citing a number of studies including Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 57 tbl.6 (1987) (reporting "coerced or other false confession[s]" responsible for erroneous convictions in 49 out of 350 miscarriages of justice in potentially capital cases)); see also Richard A. Leo & Richard F. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation (May 30, 1997) (unpublished paper presented at the Annual Meeting of the Law and Society Association, St. Louis, Missouri) (discussing 34 "proven" false confessions, 18 "presumed" false confessions, and eight "highly probable" false confessions).
95. See Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 109 (1997) [hereinafter cited as White, False Confessions); GILSI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 228 (1992). In addition, "[m]ental health experts have long been aware of the risk that a mentally retarded suspect's eagerness to please authority figures will lead him to confess falsely." White, False Confessions, supra, at 123. Some innocent suspects confess primarily to "escape from a stressful or an intolerable situation," see GUDJONSSON, supra, at 228, and some disturbed and/or attention-seeking people confess falsely even without prompting by the police. See Connelly, 479 U.S. at 174 (Brennan, J., dissenting). For an indication of the frequency of known false confessions (no more than the tip of an iceberg), see White, False Confessions, supra, at 108-09 & nn.26 & 29 (citing a number of studies including Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 57 tbl.6 (1987) (reporting "coerced or other false confession[s]" responsible for erroneous convictions in 49 out of 350 miscarriages of justice in potentially capital cases)); see also Richard A. Leo & Richard F. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation (May 30, 1997) (unpublished paper presented at the Annual Meeting of the Law and Society Association, St. Louis, Missouri) (discussing 34 "proven" false confessions, 18 "presumed" false confessions, and eight "highly probable" false confessions).
96. See Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 109 (1997) [hereinafter cited as White, False Confessions); GILSI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 228 (1992). In addition, "[m]ental health experts have long been aware of the risk that a mentally retarded suspect's eagerness to please authority figures will lead him to confess falsely." White, False Confessions, supra, at 123. Some innocent suspects confess primarily to "escape from a stressful or an intolerable situation," see GUDJONSSON, supra, at 228, and some disturbed and/or attention-seeking people confess falsely even without prompting by the police. See Connelly, 479 U.S. at 174 (Brennan, J., dissenting). For an indication of the frequency of known false confessions (no more than the tip of an iceberg), see White, False Confessions, supra, at 108-09 & nn.26 & 29 (citing a number of studies including Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 57 tbl.6 (1987) (reporting "coerced or other false confession[s]" responsible for erroneous convictions in 49 out of 350 miscarriages of justice in potentially capital cases)); see also Richard A. Leo & Richard F. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation (May 30, 1997) (unpublished paper presented at the Annual Meeting of the Law and Society Association, St. Louis, Missouri) (discussing 34 "proven" false confessions, 18 "presumed" false confessions, and eight "highly probable" false confessions).
97. See Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 109 (1997) [hereinafter cited as White, False Confessions); GILSI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 228 (1992). In addition, "[m]ental health experts have long been aware of the risk that a mentally retarded suspect's eagerness to please authority figures will lead him to confess falsely." White, False Confessions, supra, at 123. Some innocent suspects confess primarily to "escape from a stressful or an intolerable situation," see GUDJONSSON, supra, at 228, and some disturbed and/or attention-seeking people confess falsely even without prompting by the police. See Connelly, 479 U.S. at 174 (Brennan, J., dissenting). For an indication of the frequency of known false confessions (no more than the tip of an iceberg), see White, False Confessions, supra, at 108-09 & nn.26 & 29 (citing a number of studies including Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 57 tbl.6 (1987) (reporting "coerced or other false confession[s]" responsible for erroneous convictions in 49 out of 350 miscarriages of justice in potentially capital cases)); see also Richard A. Leo & Richard F. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation (May 30, 1997) (unpublished paper presented at the Annual Meeting of the Law and Society Association, St. Louis, Missouri) (discussing 34 "proven" false confessions, 18 "presumed" false confessions, and eight "highly probable" false confessions).
98. See State v. Kelekolio, 849 P.2d 58, 73 (Haw. 1993) ("[Deliberate falsehoods ... which are of a type reasonably likely to ... influence an accused to make a confession regardless of guilt will be regarded as coercive per se, thus obviating the need for a 'totality of circumstances' analysis of voluntariness."). Examining the totality of the circumstances in every case makes "everything relevant and nothing determinative." See Joseph Grano, Miranda v. Arizona and the Legal Mind: Formalism's Triumph Over Substance and Reason, 24 AM. CRIM. L. REV. 243, 243 (1986). I advocate in this article the same sort of low-level generalization about recurring situations that I have advocated for the resolution of search and seizure and sentencing issues. See Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. PITT. L. REV. 227 (1984); Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901 (1991).
99. See State v. Kelekolio, 849 P.2d 58, 73 (Haw. 1993) ("[Deliberate falsehoods ... which are of a type reasonably likely to ... influence an accused to make a confession regardless of guilt will be regarded as coercive per se, thus obviating the need for a 'totality of circumstances' analysis of voluntariness."). Examining the totality of the circumstances in every case makes "everything relevant and nothing determinative." See Joseph Grano, Miranda v. Arizona and the Legal Mind: Formalism's Triumph Over Substance and Reason, 24 AM. CRIM. L. REV. 243, 243 (1986). I advocate in this article the same sort of low-level generalization about recurring situations that I have advocated for the resolution of search and seizure and sentencing issues. See Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. PITT. L. REV. 227 (1984); Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901 (1991).
100. See State v. Kelekolio, 849 P.2d 58, 73 (Haw. 1993) ("[Deliberate falsehoods ... which are of a type reasonably likely to ... influence an accused to make a confession regardless of guilt will be regarded as coercive per se, thus obviating the need for a 'totality of circumstances' analysis of voluntariness."). Examining the totality of the circumstances in every case makes "everything relevant and nothing determinative." See Joseph Grano, Miranda v. Arizona and the Legal Mind: Formalism's Triumph Over Substance and Reason, 24 AM. CRIM. L. REV. 243, 243 (1986). I advocate in this article the same sort of low-level generalization about recurring situations that I have advocated for the resolution of search and seizure and sentencing issues. See Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. PITT. L. REV. 227 (1984); Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901 (1991).
101. See supra note 71 and accompanying text.
102. Inbau, supra note 70, at 16.
103. See supra notes 61-63, 72-77 and accompanying text.
104. See Phillip E. Johnson, A Statutory Replacement for the Miranda Doctrine, 24 AM. CRIM. L. REV. 303, 310 (1987) (arguing that although plea bargaining should be permitted when the accused is represented by counsel and can properly evaluate what is being offered, "[p]romises of leniency from the police during interrogation are too likely to be deceptive, and too likely to give even an innocent suspect the impression that confession is the only way to escape conviction or mitigate the punishment").
105. See State v. Cayward, 552 So. 2d 971 (Fla. Dist. Ct. App. 1989) (requiring the exclusion of a confession whenever the police have falsely represented that the defendant's guilt has been established by scientific evidence). But see White, Police Trickery, supra note 74, at 583 (noting that the United State Supreme Court "has neither held nor even indicated that any particular type of police trickery would, in and of itself, render a resulting confession inadmissible"); Christopher Slobogin, Investigative Lies by the Police, 76 OR. L. REV. (forthcoming 1997) ("[C]urrent constitutional doctrine ... by and large has acquiesced in, if not affirmatively sanctioned, police deception during the investigative phase."); Young, supra note 74, at 426 ("[T]he courts regularly admit confessions obtained by police lying."). Young notes that in its inception and for a century thereafter the requirement of voluntariness was considerably more demanding than it is today. Young, supra note 74, at 433-51. She cites, for example, United States v. Cooper, 25 F. Cas. 629 (D.C. Va. 1857) (No. 14,864), in which the court held a confession improperly obtained because the investigating magistrate told the suspect, "It is a very plain case. You might as well confess the whole matter. It will not make the case any worse for you." Young, supra note 74, at 436 (quoting Cooper, 25 F. Cas. at 630).
106. See State v. Cayward, 552 So. 2d 971 (Fla. Dist. Ct. App. 1989) (requiring the exclusion of a confession whenever the police have falsely represented that the defendant's guilt has been established by scientific evidence). But see White, Police Trickery, supra note 74, at 583 (noting that the United State Supreme Court "has neither held nor even indicated that any particular type of police trickery would, in and of itself, render a resulting confession inadmissible"); Christopher Slobogin, Investigative Lies by the Police, 76 OR. L. REV. (forthcoming 1997) ("[C]urrent constitutional doctrine ... by and large has acquiesced in, if not affirmatively sanctioned, police deception during the investigative phase."); Young, supra note 74, at 426 ("[T]he courts regularly admit confessions obtained by police lying."). Young notes that in its inception and for a century thereafter the requirement of voluntariness was considerably more demanding than it is today. Young, supra note 74, at 433-51. She cites, for example, United States v. Cooper, 25 F. Cas. 629 (D.C. Va. 1857) (No. 14,864), in which the court held a confession improperly obtained because the investigating magistrate told the suspect, "It is a very plain case. You might as well confess the whole matter. It will not make the case any worse for you." Young, supra note 74, at 436 (quoting Cooper, 25 F. Cas. at 630).
107. Although the discussion in text focuses on the empirical consequences of police deception, lying also raises deontological concerns that should at least cast the burden of justification on the defenders of deceptive interrogation. See SISSELA BOK, LYING: MORAL CHOICE IN PUBLIC AND PRIVATE LIFE 30 (1978) ("[W]e must ... accept as an initial premise Aristotle's view that lying is 'mean and culpable' and that truthful statements are preferable to lies in the absence of special considerations. This premise ... places the burden of proof squarely on those who assume the liar's perspective."); id. at 33 (attributing to St. Augustine the view that "God forbids all lies").
108. The leading police interrogation manual declares that officers should use the manual's methods only when a suspect is "known or strongly believed to be guilty." FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS 332 (3d ed. 1986). When a suspect is certainly and provably guilty, however, there is no need to interrogate him. Cf. ARTHUR KOESTLER, DARKNESS AT NOON 89 (1941) ("If you have all the proofs, why do you need my confession?"). Despite the view of police officers that they know whether the people they question are guilty, see Tom Barker & David Carter, "Fluffing Up the Evidence and Covering Your Ass:" Some Conceptual Notes on Police Lying, 11 DEVIANT BEHAV. 61, 68 (1990), one cannot assume that the use of any interrogation technique will be limited with rare exceptions to criminals. But see Slobogin, supra note 84 (relying on Sissela Bok's analysis of permissible deception to argue that false claims of incriminating evidence during interrogation are ordinarily unobjectionable because suspects arrested on probable cause qualify as "publicly declared enemies").
109. The leading police interrogation manual declares that officers should use the manual's methods only when a suspect is "known or strongly believed to be guilty." FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS 332 (3d ed. 1986). When a suspect is certainly and provably guilty, however, there is no need to interrogate him. Cf. ARTHUR KOESTLER, DARKNESS AT NOON 89 (1941) ("If you have all the proofs, why do you need my confession?"). Despite the view of police officers that they know whether the people they question are guilty, see Tom Barker & David Carter, "Fluffing Up the Evidence and Covering Your Ass:" Some Conceptual Notes on Police Lying, 11 DEVIANT BEHAV. 61, 68 (1990), one cannot assume that the use of any interrogation technique will be limited with rare exceptions to criminals. But see Slobogin, supra note 84 (relying on Sissela Bok's analysis of permissible deception to argue that false claims of incriminating evidence during interrogation are ordinarily unobjectionable because suspects arrested on probable cause qualify as "publicly declared enemies").
110. The leading police interrogation manual declares that officers should use the manual's methods only when a suspect is "known or strongly believed to be guilty." FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS 332 (3d ed. 1986). When a suspect is certainly and provably guilty, however, there is no need to interrogate him. Cf. ARTHUR KOESTLER, DARKNESS AT NOON 89 (1941) ("If you have all the proofs, why do you need my confession?"). Despite the view of police officers that they know whether the people they question are guilty, see Tom Barker & David Carter, "Fluffing Up the Evidence and Covering Your Ass:" Some Conceptual Notes on Police Lying, 11 DEVIANT BEHAV. 61, 68 (1990), one cannot assume that the use of any interrogation technique will be limited with rare exceptions to criminals. But see Slobogin, supra note 84 (relying on Sissela Bok's analysis of permissible deception to argue that false claims of incriminating evidence during interrogation are ordinarily unobjectionable because suspects arrested on probable cause qualify as "publicly declared enemies").
111. Sissela Bok speaks of "the great susceptibility of deception to spread, to be abused, and to give rise to even more undesirable practices." BOK, supra note 85, at 26-27. The courts' approval of some forms of police deception in the "war on crime" may affect the attitudes of officers toward other forms - deception, for example, in warrant applications, courtroom testimony, internal affairs investigations, and requests for permission to search. See Carl B. Klockars, Blue Lies and Police Placebos: The Moralities of Police Lying, 27 AM. BEHAV. SCIENTIST 529, 533-34 (1984); Jerome Skolnick, Deception by Police, CRIM. JUSTICE ETHICS, Summer/Fall 1982, at 40, 45; Young, supra note 74, at 464 ("[T]he justification of lying to enemies may extend beyond the interrogation room. Law enforcement officers may view prosecutors, judges, and even jurors as enemies, or at least as obstacles.").
112. Sissela Bok speaks of "the great susceptibility of deception to spread, to be abused, and to give rise to even more undesirable practices." BOK, supra note 85, at 26-27. The courts' approval of some forms of police deception in the "war on crime" may affect the attitudes of officers toward other forms - deception, for example, in warrant applications, courtroom testimony, internal affairs investigations, and requests for permission to search. See Carl B. Klockars, Blue Lies and Police Placebos: The Moralities of Police Lying, 27 AM. BEHAV. SCIENTIST 529, 533-34 (1984); Jerome Skolnick, Deception by Police, CRIM. JUSTICE ETHICS, Summer/Fall 1982, at 40, 45; Young, supra note 74, at 464 ("[T]he justification of lying to enemies may extend beyond the interrogation room. Law enforcement officers may view prosecutors, judges, and even jurors as enemies, or at least as obstacles.").
113. Bok observes: The veneer of social trust is often thin. As lies spread ... trust is damaged. Yet trust is a social good to be protected just as much as the air we breathe or the water we drink. When it is damaged, the community as a whole suffers; and when it is destroyed, societies falter and collapse. BOK, supra note 85, at 26-27. Christopher Slobogin writes: Routine deceit coarsens the liar, increases the likelihood of exposure and, when exposed, maximizes the loss of trust. When the deceptive practice is carried out by an agent of the government, it is even more reprehensible, both because the liar wields tremendous power and because government requires trust in order to be effective. Slobogin, supra note 84, at 62; see also Margaret L. Paris, Trust, Lies and Interrogation, 3 VA. J. SOC. POL'Y & L. 3 (1995); Young, supra note 74, at 455-75. Admittedly, many of the harmful consequences produced by misrepresenting the strength of the evidence are also produced by deceptive interrogation practices that I do not disapprove. See infra note 91. These troublesome consequences are in fact risked by every form of undercover investigation.
114. 394 U.S. 731 (1969).
115. Frazier, 394 U.S. at 739.
116. Falsely expressing friendship or sympathy for a suspect, falsely suggesting that the victim deserved her fate, and even confessing falsely that the interrogating officer himself had considered or engaged in misconduct of the sort alleged seem less offensive than concocting nonexistent incriminating evidence. See INBAU ET AL., supra note 86, at 98-100. Such tactics seem unlikely to terrify innocent suspects or to induce false confessions. For example, I do not quarrel with (and indeed applaud) the tactics that J. J. Bittenbinder, a former Chicago Police detective, told me that he employed in a case in which one reputed mobster was arrested for killing another. Bittenbinder opened the door of the room in which the suspect was held and shouted, "Man, I want to shake your hand! I've been hoping that someone would get rid of that sonofabitch for us! We've been trying for years, but we never got close to him. I hear you shot the bastard four times, is that right?" "No," the apparently puzzled suspect said. "Only once." "Thank you," said Bittenbinder as he left the room. Misrepresenting nonincriminating facts to trip-up apparently dissembling suspects seems unobjectionable in many circumstances. Even misrepresenting the existence of physical evidence may be unobjectionable when the police do not claim that this evidence incriminates the suspect For example, the false statement, "We found the gun and the lab will soon test it," seems less troublesome than the false statement, "We found the gun, and the lab report says that your thumbprint is on it" Although the former statement would be likely to discomfit the guilty, an innocent suspect would probably view it as welcome news. The latter statement, by contrast, could lead an innocent suspect either to doubt her own innocence or to believe that the police were trying to frame her. I do not object to all forms of undercover interrogation - "deception about whether an interrogation is taking place." See White, Police Trickery, supra note 74, at 602-08. After a right to counsel at interrogation has attached, prohibiting undercover interrogation may be necessary to safeguard this right; in this situation, perhaps the right-to-counsel tail must wag the interrogation dog. Nevertheless, the interrogation that occurred in Massiah v. United States, 377 U.S. 201 (1964), in which a defendant's confederate agreed to "wear a wire" while the two were at liberty pending trial, seems intrinsically no more objectionable than other, routinely accepted forms of undercover investigation. The interrogation in Massiah did not frighten or inconvenience the defendant, and the interrogation posed little risk to the innocent. This interrogation did invade the defendant's privacy, but only after probable cause had been established. Some techniques of undercover interrogation, however, should certainly be condemned - for example, securing a suspect's confidences by pretending to be a priest or a court-appointed defense attorney. I disagree with Welsh White that the police should never be allowed to minimize the seriousness of a suspect's alleged offense or to portray themselves as acting in the suspect's interest See White, Police Trickery, supra note 74, at 611-17. Misrepresenting a suspect's legal rights, however, merits unqualified condemnation. If legal rights are to be meaningful, they must be known and understood. Law enforcement officers should not be able effectively to repeal these rights by persuading people that they do not exist See Commonwealth v. Dustin, 368 N.E.2d 1388 (Mass. 1977) (requiring the exclusion of a confession obtained through a false assurance that only statements given by a defendant under oath at trial could be used against him); Commonwealth v. Starr, 406 A.2d 1017 (Pa. 1979) (requiring the exclusion of a confession when the police misrepresented the admissibility of polygraph results). Some writers condemn all police misrepresentation in the interrogation of suspects, and they offer potent arguments in support of this position. See Paris, supra note 88; Young, supra note 74.
117. Falsely expressing friendship or sympathy for a suspect, falsely suggesting that the victim deserved her fate, and even confessing falsely that the interrogating officer himself had considered or engaged in misconduct of the sort alleged seem less offensive than concocting nonexistent incriminating evidence. See INBAU ET AL., supra note 86, at 98-100. Such tactics seem unlikely to terrify innocent suspects or to induce false confessions. For example, I do not quarrel with (and indeed applaud) the tactics that J. J. Bittenbinder, a former Chicago Police detective, told me that he employed in a case in which one reputed mobster was arrested for killing another. Bittenbinder opened the door of the room in which the suspect was held and shouted, "Man, I want to shake your hand! I've been hoping that someone would get rid of that sonofabitch for us! We've been trying for years, but we never got close to him. I hear you shot the bastard four times, is that right?" "No," the apparently puzzled suspect said. "Only once." "Thank you," said Bittenbinder as he left the room. Misrepresenting nonincriminating facts to trip-up apparently dissembling suspects seems unobjectionable in many circumstances. Even misrepresenting the existence of physical evidence may be unobjectionable when the police do not claim that this evidence incriminates the suspect For example, the false statement, "We found the gun and the lab will soon test it," seems less troublesome than the false statement, "We found the gun, and the lab report says that your thumbprint is on it" Although the former statement would be likely to discomfit the guilty, an innocent suspect would probably view it as welcome news. The latter statement, by contrast, could lead an innocent suspect either to doubt her own innocence or to believe that the police were trying to frame her. I do not object to all forms of undercover interrogation - "deception about whether an interrogation is taking place." See White, Police Trickery, supra note 74, at 602-08. After a right to counsel at interrogation has attached, prohibiting undercover interrogation may be necessary to safeguard this right; in this situation, perhaps the right-to-counsel tail must wag the interrogation dog. Nevertheless, the interrogation that occurred in Massiah v. United States, 377 U.S. 201 (1964), in which a defendant's confederate agreed to "wear a wire" while the two were at liberty pending trial, seems intrinsically no more objectionable than other, routinely accepted forms of undercover investigation. The interrogation in Massiah did not frighten or inconvenience the defendant, and the interrogation posed little risk to the innocent. This interrogation did invade the defendant's privacy, but only after probable cause had been established. Some techniques of undercover interrogation, however, should certainly be condemned - for example, securing a suspect's confidences by pretending to be a priest or a court-appointed defense attorney. I disagree with Welsh White that the police should never be allowed to minimize the seriousness of a suspect's alleged offense or to portray themselves as acting in the suspect's interest See White, Police Trickery, supra note 74, at 611-17. Misrepresenting a suspect's legal rights, however, merits unqualified condemnation. If legal rights are to be meaningful, they must be known and understood. Law enforcement officers should not be able effectively to repeal these rights by persuading people that they do not exist See Commonwealth v. Dustin, 368 N.E.2d 1388 (Mass. 1977) (requiring the exclusion of a confession obtained through a false assurance that only statements given by a defendant under oath at trial could be used against him); Commonwealth v. Starr, 406 A.2d 1017 (Pa. 1979) (requiring the exclusion of a confession when the police misrepresented the admissibility of polygraph results). Some writers condemn all police misrepresentation in the interrogation of suspects, and they offer potent arguments in support of this position. See Paris, supra note 88; Young, supra note 74.
118. Without asserting that her analogy to police interrogation is exact, see supra text accompanying note 1, Deborah Young notes, "We would be shocked ... if a doctor presented false test results to obtain a patient's consent to surgery." Young, supra note 74, at 470; see also Colorado v. Spring, 479 U.S. 564, 576 n.8 (1987) (stating that in some situations, the Supreme Court "has found affirmative misrepresentations by the police sufficient to invalidate a suspect's waiver of the Fifth Amendment privilege"). But see INBAU ET AL., supra note 86, at 131 ("With all offenders, in particular the nonemotional type, the interrogator must convince the suspect that not only has guilt been detected, but also that it can be established by the evidence currently available or that will be developed before the investigation is completed.").
119. See White, False Confessions, supra note 78, at 149-53 ("[N]ot all confessions given as a result of promises appear to be untrustworthy," but "[i]nterrogators should be prohibited from making any statements likely to lead a reasonable person in the suspect's position to believe that he may receive a significant benefit with respect to the disposition of his criminal litigation if he confesses."); id. at 147-48 ("[S]tatements exaggerating the strength of the evidence against the suspect ... should not be absolutely prohibited.... On the other hand, specific misrepresentations designed to convince the suspect that forensic evidence establishes his guilt should be prohibited.").
120. See White, False Confessions, supra note 78, at 143-45. Cf. Ashcraft v. Tennessee, 322 U.S. 143, 154 (1944) (Black, J.) (stating that a 36-hour interrogation is "so inherently coercive that its very existence is irreconcilable with the possession of mental freedom").
121. See White, False Confessions, supra note 78, at 142-43.
122. See, e.g., State v. Doody, 930 P.2d 440 (Ariz. 1997) (holding that the confession of a 17-year-old defendant during a nearly 13-hour interrogation was voluntary); State v. La Pointe, 678 A.2d 942 (Conn. 1996) (holding that a confession after more than nine hours of continuous interrogation was voluntary); People v. Kokoraleis, 501 N.E.2d 207 (III. App. 1986) (holding a confession voluntary although made by a defendant with an LQ. of 75 during a deceptive interrogation that lasted 13 hours); People v. Towndrow, 654 N.Y.S.2d 69 (App. Div. 1997) (holding that a confession after 14 hours of interrogation was voluntary). I am grateful to Welsh White for calling most of these cases to my attention.
123. One suspect who confessed falsely later compared his interrogation to "when I went in for surgery." This suspect ultimately decided that the only way to persuade his interrogators to "back off" was to agree with them. "Every time I answered, 'No,' they were getting close to my face," he said. "One of the Detectives had bad breath." See White, False Confessions, supra note 78, at 143 & n.249 (citing Roger Parloff, False Confessions, AM. LAW., May 1993, at 58).
124. One suspect who confessed falsely later compared his interrogation to "when I went in for surgery." This suspect ultimately decided that the only way to persuade his interrogators to "back off" was to agree with them. "Every time I answered, 'No,' they were getting close to my face," he said. "One of the Detectives had bad breath." See White, False Confessions, supra note 78, at 143 & n.249 (citing Roger Parloff, False Confessions, AM. LAW., May 1993, at 58).
125. See, e.g., Glanville Williams, The Authentication of Statements to the Police, 1979 CRIM. L. REV. 6; Yale Kamisar, Foreword: Brewer v. Williams - A Hard Look at a Discomfiting Record, 66 GEO. L. J. 209, 236-43 (1977); KAMISAR, ESSAYS, supra note 4, at 132-36; Paul G. Cassell, Miranda's Social Costs: An Empirical Assessment, 90 NW. U. L. REV. 387, 486-97 (1996); Roscoe Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J. AM. INST. CRIM. L. & CRIMINOLOGY 1014, 1017 (1934); EDWIN M. BORCHARD, CONVICTING THE INNOCENT xvii (1932); MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § 130.4, at 39 (1975); UNIFORM RULES OF CRIMINAL PROCEDURE Rule 243 (1974).
126. See, e.g., Glanville Williams, The Authentication of Statements to the Police, 1979 CRIM. L. REV. 6; Yale Kamisar, Foreword: Brewer v. Williams - A Hard Look at a Discomfiting Record, 66 GEO. L. J. 209, 236-43 (1977); KAMISAR, ESSAYS, supra note 4, at 132-36; Paul G. Cassell, Miranda's Social Costs: An Empirical Assessment, 90 NW. U. L. REV. 387, 486-97 (1996); Roscoe Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J. AM. INST. CRIM. L. & CRIMINOLOGY 1014, 1017 (1934); EDWIN M. BORCHARD, CONVICTING THE INNOCENT xvii (1932); MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § 130.4, at 39 (1975); UNIFORM RULES OF CRIMINAL PROCEDURE Rule 243 (1974).
127. See, e.g., Glanville Williams, The Authentication of Statements to the Police, 1979 CRIM. L. REV. 6; Yale Kamisar, Foreword: Brewer v. Williams - A Hard Look at a Discomfiting Record, 66 GEO. L. J. 209, 236-43 (1977); KAMISAR, ESSAYS, supra note 4, at 132-36; Paul G. Cassell, Miranda's Social Costs: An Empirical Assessment, 90 NW. U. L. REV. 387, 486-97 (1996); Roscoe Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J. AM. INST. CRIM. L. & CRIMINOLOGY 1014, 1017 (1934); EDWIN M. BORCHARD, CONVICTING THE INNOCENT xvii (1932); MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § 130.4, at 39 (1975); UNIFORM RULES OF CRIMINAL PROCEDURE Rule 243 (1974).
128. See, e.g., Glanville Williams, The Authentication of Statements to the Police, 1979 CRIM. L. REV. 6; Yale Kamisar, Foreword: Brewer v. Williams - A Hard Look at a Discomfiting Record, 66 GEO. L. J. 209, 236-43 (1977); KAMISAR, ESSAYS, supra note 4, at 132-36; Paul G. Cassell, Miranda's Social Costs: An Empirical Assessment, 90 NW. U. L. REV. 387, 486-97 (1996); Roscoe Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J. AM. INST. CRIM. L. & CRIMINOLOGY 1014, 1017 (1934); EDWIN M. BORCHARD, CONVICTING THE INNOCENT xvii (1932); MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § 130.4, at 39 (1975); UNIFORM RULES OF CRIMINAL PROCEDURE Rule 243 (1974).
129. See, e.g., Glanville Williams, The Authentication of Statements to the Police, 1979 CRIM. L. REV. 6; Yale Kamisar, Foreword: Brewer v. Williams - A Hard Look at a Discomfiting Record, 66 GEO. L. J. 209, 236-43 (1977); KAMISAR, ESSAYS, supra note 4, at 132-36; Paul G. Cassell, Miranda's Social Costs: An Empirical Assessment, 90 NW. U. L. REV. 387, 486-97 (1996); Roscoe Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J. AM. INST. CRIM. L. & CRIMINOLOGY 1014, 1017 (1934); EDWIN M. BORCHARD, CONVICTING THE INNOCENT xvii (1932); MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § 130.4, at 39 (1975); UNIFORM RULES OF CRIMINAL PROCEDURE Rule 243 (1974).
130. See, e.g., Glanville Williams, The Authentication of Statements to the Police, 1979 CRIM. L. REV. 6; Yale Kamisar, Foreword: Brewer v. Williams - A Hard Look at a Discomfiting Record, 66 GEO. L. J. 209, 236-43 (1977); KAMISAR, ESSAYS, supra note 4, at 132-36; Paul G. Cassell, Miranda's Social Costs: An Empirical Assessment, 90 NW. U. L. REV. 387, 486-97 (1996); Roscoe Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J. AM. INST. CRIM. L. & CRIMINOLOGY 1014, 1017 (1934); EDWIN M. BORCHARD, CONVICTING THE INNOCENT xvii (1932); MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § 130.4, at 39 (1975); UNIFORM RULES OF CRIMINAL PROCEDURE Rule 243 (1974).
131. See, e.g., Glanville Williams, The Authentication of Statements to the Police, 1979 CRIM. L. REV. 6; Yale Kamisar, Foreword: Brewer v. Williams - A Hard Look at a Discomfiting Record, 66 GEO. L. J. 209, 236-43 (1977); KAMISAR, ESSAYS, supra note 4, at 132-36; Paul G. Cassell, Miranda's Social Costs: An Empirical Assessment, 90 NW. U. L. REV. 387, 486-97 (1996); Roscoe Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J. AM. INST. CRIM. L. & CRIMINOLOGY 1014, 1017 (1934); EDWIN M. BORCHARD, CONVICTING THE INNOCENT xvii (1932); MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § 130.4, at 39 (1975); UNIFORM RULES OF CRIMINAL PROCEDURE Rule 243 (1974).
132. See William A. Geller, Videotaping Interrogations and Confessions, NAT'L INST. OF JUST.: RESEARCH IN BRIEF, Mar. 1993, at 2.
133. See WILLIAM A. GELLER, POLICE VIDEOTAPING OF SUSPECT INTERROGATIONS AND CONFESSIONS: A PRELIMINARY EXAMINATION OF ISSUES AND PRACTICES - A REPORT TO THE NATIONAL INSTITUTE OF JUSTICE 152 (1992) (stating that 97% of the agencies that videotape confessions or interrogations consider the practice either very useful or somewhat useful).
134. ROYAL COMMISSION ON CRIMINAL JUSTICE REPORT 26 (1993).
135. See Stephan v. State, 711 P.2d 1156 (Alaska 1985); State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994).