THE RATIONALE BEHIND
ADMISSIBILITY
THE
OF ORAL C O N F E S S I O N S
CLOVIS MICHAEL
WARD
718
IN
TEXAS
This paper will attempt to trace the evolution of Texas law concerning
the admissibility of oral confessions.
To limit the scope of the discussion to
reasonable proportions this paper will deal only with oral confessions made by
a Defendant while in custody and in response to Police interrogation.
There-
fore, the res gestae exceptions will not be considered.
Wigmore divided the evolution of the law of confessions into four
basic eras."*"
The first stage began during the times of the Tudors and the
Stuarts and continued through the first half of the 18th Century.
During this
time, there were no restrictions upon the admission of oral confessions.
However,
during this period confessions were considered as a plea of guilty and their
admissibility was not affected
even if obtained by torture.^
Therefore, this
stage of development has little relevancy in a modern study of the law of
confessions.
The second stage in the evolution of the law of confessions occurred
in the second half of the 1700's.^
During this stage, confessions were still
considered to be "the highest evidence of guilt".
However, the courts for the
first time, began to doubt the trustworthiness of confessions obtained through
threats or promises.
It was during this period that confessions so obtained
were held to be inadmissible as evidence against the accused.
Even so, Wigmore
states that there was no "prima facie" doubt as to the propriety of the use
of confessions and in fact, very few confessions were actually excluded. ^
1
3 J. WIGMORE, EVIDENCE § 817 (Chadbourn, rev. 1970).
2
Id_. § 818.
i 817.
4
I d .
§ 819.
719
The third stage in the development of the law of confessions began
during the early 1800's.^
During this period, the whole attitude of the Judges
concerning the use of confessions began to change.
There arose a general sus-
picion of all confessions and the Courts stood ready to repudiate them on the
slightest pretext.^
It was during this period that Blackstone wrote that con-
fessions are the "weakest and most suspicious of all testimony".7
however,
attributes
Wigmore,
this feeling of distrust in the evidentiary value of
confessions not to the confession as a proven fact but to the process of proving
O
the alleged confession.
Wigmore's rationale for this distinction is clear from
the following discourse:
"But how do we get to believe in the fact of a
confession having been made? Always and necessarily by
somebody's testimony. And what is our experience of that
sort of testimony on which we are asked to believe that
a confession was made? A varying and sometimes discouraging experience. Paid informer, treacherous associates, angry victims, and over-zealous officers of the
law - these are the persons through whom an alleged confession is oftenest presented; and it is at this stage
that our suspicions are aroused and our caution stimulated." 9
Indeed Justice Foster, from whom Blackstone's above statement is said
to have originated, stated that "Confessions are the weakest and most suspicious
of all evidence" because "proof may be too easily procured; words are often misreported - whether through ignorance, inattention, or malice, it mattereth not
to the defendant, he is equally affected in either case; and they are extremely
liable to misconstruction; and withal, this evidence is not in the ordinary course
5
Id. § 817.
6
Id. § 820.
7
4 W. BLACKSTONE, COMMENTARIES 357.
8
3 J. WIGMORE, supra § 820 (b).
9
Id. at 303.
~
720
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of things to be disproved by that sort of negative evidence by which the proof
of plain facts may be and often is confronted.
Thus, it became clear that the reasoning behind the exclusion of confessions was that under certain conditions they were found to be untrustworthy
as testimony."'"'''
The fundamental test for admissibility came to be whether "the
inducement (was) such that there was any fair risk of a false confession."-'-2
In
fact, the rationale for exclusion became so apparent that Wigmore concluded:
"(a) A confession is not excluded because of
any breach of confidence or of good faith which may
thereby be involved . . . (b) A confession is not excluded because of any illegality in the method of
obtaining it . . . (c) . . . (a) confession is not rejected because of any connection with the privilege
against self-incrimination."^
It was in this period of time that Texas enacted its first code provision concerning the admissibility of confessions.
Article 661 of the Code of
Criminal Procedure of 1857, known as the "Old Code", provided that, "The confession of a defendant may be used in evidence against him if it appears that the
same was freely made without compulsion or persuasion, under the rules hereafter
prescribed.""'"4
This code provision has remained unchanged through the years and
is now Article 31.21 of our present code."*"^
Article 662 of the 'Old Code' provided that "The confession shall not
be used, if, at the time it was made, the defendant was in jail or other place
10
FOSTER, DISCOURSE ON HIGH TREASON, c.3, § 8.
11
J. WIGMORE, EVIDENCE § (3d ed. 1940).
12
Id. § 824 at 252.
13
M-
14
OLDHAM & WHITE DIGEST, Art. 661 (1859).
15
4 Vernon's Ann. C.C.P. Art. 38.21
§
823 at
249
"
723
-3-
of confinement, nor while he is in custody of an officer, unless such confession
be made in a voluntary statement of the accused, taken before an examining court
in accordance with law, or be made voluntarily after having been first cautioned
that it may be used against h i m . " ^
Thus, oral confessions were admissible under
the early Texas law if the provisions of the "old Code" were complied with.
How-
ever, the Texas courts announced their suspicion of confession through such statements as "The confessions of a defendant should be received with great care and
caution, owing to the fact that such testimony is so liable to be misunderstood,
so easily fabricated, and so hard to be contradicted, as the witness deposing to
it often located the time and place when and where there are no other persons
present to contradict his story, if it is untrue."I 7
Article 662 of the "old Code" was later amended by adding the following
language "or unless in connection with such confession he make statement of facts
or of circumstances that are found to be true which conduce to establish his
guilt,
such as the finding of secreted or stolen property, or instrument with
-I o
which he states the offense was committed."
This language appeared unchanged
as Art. 750 in the Code of Criminal Procedure of 1879.
Chapter 118, Acts of the Regular Session of the 30th Legislature, in
1907 revised Art. 750 to read as follows:
"The confession shall not be used
if, at the time it was made, the Defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary
statement of accused, taken before an examining court in accordance with law, or
be made in writing and signed by him; which written statement shall show that he
has been warned by the person to whom the same is made; First, that he does not
16
OLDHAM § WHITE DIGEST, Art. 662 (1859).
17
Gay vs. State, 2 Tex. App. 127, 131 (1877).
18
See 1 PASCHAL, DIGEST OF THE LAWS OF TEXAS, Art. 3127 (3d ed. 1873).
-4-
have to make any statement at all.
Second, that any statement made may be used in
evidence against him on his trial for the offense concerning which the confession
is therein made; or, unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.
If the defendant is unable
to write his name, and signs the statement by making his mark, such statement shall
not be admitted in evidence, unless it be witnessed by some person other than a
peace officer, who shall sign the same as a witness."
This language was con-
tinued without change into Article 727 when the Code of Criminal Procedure was
again amended in 1925.
It seems apparent from the foregoing amendments
to the Code provisions
that the legislature adopted the distrust of the courts as to the admissibility
of confessions.
The 1907 amendment added the requirement that under certain
circumstances the confession be reduced to writing and added other safeguards as
to their reliability.
Also throughout the history of the code provisions, the
exception for the admissibility of oral confessions required that a statement be
made which led to the fruits of the crime or the instrumentality.
This was also
a check on the trustworthiness of the testimony concerning the oral confession
in that if such fruits or instrumentality were found this tended to corroborate
the existence of the confession.
This rationale is upheld in Parker vs. State,
wherein Judge Lattimore, speaking for the Court on motion for rehearing stated,
" The only object sought in the entire matter is truth, and, in an effort to
arrive at same, it is statutory in this state, and seems almost universally held
that when, in connection with a confession, even though made under circumstances
otherwise rendering same inadmissible, facts are stated which conduce to establish
guilt, such as those leading to the discovery of stolen property, or the weapon
723
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or means by which the crime was committed - then the essential element of truth
1g
in the confession is so far established as to make such confession admissible."
Lattimore^O went on to quote the following phrase-by Wigmore:
"It has already been noticed (ante, § 822) that
the fundamental theory upon which confessions
become inadmissible is that, when made under certain conditions, they are untrustworthy as testimonial utterances. A very slight probability
of untruth, to be sure, is sufficient to exclude
( a probability much less than that which supports
other testimonial exclusions), and the tests worked
out are often more or less artificial; but this
principle underlies the whole body of rules. If
now a circumstance appears which indicates that
the law's fear of untrustworthiness is unfounded,
and counteracts the significance of the improper
inducement by demonstrating that after all it
exercise no sinister influence, the confession
should be adopted. This is the theory of confirmation by subsequent facts, which has been in vogue
an
ever since there has
Y doctrine about excluding confessions."
That the Courts and Legislature were only concerned with the
reliability of testimony concerning oral confessions is apparent
from the
many court decisions that were handed down during the late 1800's and early
1900's.
For example, confessions were admitted into evidence against an accused
wherein he made a statement that led to the finding of the fruits of the crime
or the instrumentality, so that the statutory requirements were accomodated even
97
though the confession was obtained by force,
statutory warnings,
7%
J
the accused was not given the
and the confession was not voluntary.
24
19
Parker vs. State, 238 S.W. 943, 948 (Tex. Cr. App. 1922)
20
238 S.W. at 949
21
1
22
Washington vs. State, 216 S.W. 869 (Tex. Cr. App. 1919).
J- WIGMORE, EVIDENCE § 856.
Nicholson vs. State. 239 S.W. 206 (Tex. Cr. App. 1922).
24
Weslev vs. State. 147 S.W. 2d 493 (Tex. Cr. App. 1941).
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^*
In the mid-19001s, a new rationale began to take shape concerning the
admissibility of confessions.
In 1936 the United States Supreme Court decided
25
the case of Brown vs. Mississippi.
In this case, the Defendant was subjected
to physical abuse in order to gain a confession.
In reversing the conviction, the
Court turned its attention to the Due Process Clause of the Fourteenth Amendment.
This seems to be the turning point in the American rationale concerning the
exclusion of confessions.
Over the next few years the Court made several state-
ments which suggested a change in the rationale behind the exclusion of confessions.
26
For example, in Lisenba vs. California
, the Court stated that "The aim of the
requirement of due process is not to exclude presumptively false evidence but
27
to prevent fundamental unfairness in the use of evidence whether true or false."
The change in reasoning was clearly established by the United States
28
Supreme Court in Rogers vs. Richmond
wherein Justice Frankfurter writing for
the Court stated, ". . . (C)onvictions following the admission into evidence
of confessions which are involuntary, i. e., the product of coercion, either
physical or psychological, cannot stand.
This is so not because such confessions
are unlikely to be true but because the methods used to extract them offend an
underlying principle in the enforcement of our criminal law:
that ours is an
accusatorial and not an inquisitorial system - a system in which the state must
establish guilt by evidence independently and freely secured and may not by
coercion prove its charge against an accused out of his own mouth.
To be sure,
confessions cruelly extorted may be and may have been, to an unascertained extent,
found to be untrustworthy.
But the constitutional principle of excluding con-
fessions that are not voluntary does not rest on this consideration.
25
Brown vs. Mississippi, 297 U.S. 278 (1936).
26
Lisenba vs. California, 314 U.S. 219 (1941).
27
314 U.S. at 236.
28
Rogers vs. Richmond, 365 U.S. 534 (1961).
/ 25
Indeed, in
many of the cases in which the command of the Due Process Clause has compelled
us to reverse state convictions involving the use of confessions obtained by
impermissible methods, independent corroborating evidence left little doubt of
the truth of what the defendant had confessed."
29
A few years later, the United States Supreme Court again discussed the
30
rationale for the exclusion of confessions.
In Jackson vs. Denno, the Court stated
that, "It is now inescapably clear that the Fourteenth Amendment forbids the use
of involuntary confessions not only because of the probable unreliability of confessions that are obtained in a manner deemed coercive, but also because of the
"strongly felt attitude of our society that important human values are sacrificed
where an agency of the government, in the course of securing a conviction, wrings
a confession out of an accused against his will, Blackburn vs. Alabama, 361 U.S.
199, 206-207, 80 S. Ct. 274, 280, 4 L.Ed. 2d 242, and because of "the deeprooted feeling that the police must obey the law while enforcing
the law; that
in the end life and liberty can be as much endangered from illegal methods used
to convict those thought to be criminals as from the actual criminals themselves."
Spano vs. New York, 360 U.S. 315, 320 - 321." 31
In 1965, the Texas Code of Criminal Procedure was again revised.
32
727 of the 1925 Code was revised and brought forward as Article 38.22.
Article
The new
article retained the former restrictions and further provided that a written confession would be inadmissible unless it showed that the accused had been warned by
a magistrate and also by the person who took the confession.
However, the new
Article 38.22 did nothing to change the requirements necessary for the admission
of oral confessions.
29
365 U.S. at 540-541
30
Jackson vs. Denno, 378 U.S. 368 (1964).
31
378 U.S. at 385-386
Vernon's Ann. C.C.P. Art. 38.22.
-8-
In 1966, the United States Supreme Court decided the case of Miranda
vs. Arizona. 33
In Miranda, the Court set forth certain warnings that must be
given to an accused before he may be questioned.
The accused must be warned that
he has the right to remain silent, that any statement he does make may be used
as evidence against him, and that he has the right to the presence of an attorney,
either retained or appointed.
The Court found that these warnings were dictated
by the 5th Amendment of the United States Constitution.
Furthermore, the Court
held that these warnings were prerequisite to the admissibility of any statements
made by an accused.
34
In 1967, article 38.22
was amended to superimpose the requirement of
Miranda warnings and waiver as to written confessions.
However, Article 38.22
still authorized the admission into evidence of voluntary oral confessions made
while in jail or in custody under the following circumstances:
(il(a)) it be shown to be the voluntary statement of the
accused taken in the presence of an examining court in
accoidance with law; or
(§ 1(e)) It be made orally and the defendant makes a
statement of facts or circumstances that are found to
be true, which conduce to establish his guilt, such as
the finding of secreted or stolen property, or the
instrumentality with which he states the offense was
committed.
(§1(f)) Any statement made by the Defendant in open court at
his trial or at his examining trial in compliance with
Articles 16.03 or 16.04 or any statement, that is the res
gestae of the arrest or the offense.
Thus, it would appear on the face of Article 38.22 that the Texas
Legislature and the courts are still adhering to the old doctrine of reliability
for the exclusion of oral confession.
The statutory requirements for the admis-
sibility of oral confessions has remained unchanged even in the face of the United
53
Miranda vs. Arizona, 384.U.S. 436 (1966)
^Vernon's Ann. C.C.P. Art. 38.22
-9-
States Supreme Court decisions clearly denouncing the rationale of untrustworthiness
and instituting a policy in which the main concern is for the protection.of the
constitutional rights of the accused against self-incrimination.
Even after the
United States Supreme Court held that the Miranda warnings were required before any
statement made by the accused could be admitted into evidence against him, Article
38.22 was amended to include these requirements only as to written confessions.
No such requirement exists in Article 38.22 as to oral confessions.
Therefore, even though the Texas Court of Criminal Appeals has held on
35
several occasions that the warnings required by Miranda
must be given to an
accused prior to any oral confession as a condition to its admissibility,3^1 the
statutory scheme should be revised to reflect this requirement.
In its present
form, Article 38.22 does not. reflect the true state of the law and stands as
a possible trap for the unwary.37
35
Miranda vs. Arizona, 384 U.S. 436 (1966).
36
See Lee vs. State, 438 S.W. 2d 328 (Tex. Cr. App. 1968); Noble vs.
State, 478 S.W.2d 83 (Tex. Cr. App. 1972).
37
See Larkin, Confessions in Texas Revisited, 3 TEX. TECH L. REV.
55, 64-66 (1971).
728
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