Volume 153, No. 99
18, May, 2007
Miranda Pushed
'Voluntariness' to the
Background
Recently the 2d District Appellate Court did something quite
extraordinary: Within a span of a month, it found confessions in two
different cases to be involuntary. People v. Kebron R. Dennis, No. 2-041161 (April 20), and People v. Josh L. Westmorland, No. 2-05-1093
(March 30).
Why is this extraordinary?
Because ''two'' is also the number of confessions the U.S. Supreme
Court has held involuntary during the last 41 years.
Why has it taken the U.S. Supreme Court four decades to do what the
2d District did in four weeks? To answer this, we need to go back to 1966 - the year the Supreme
Court decided Miranda v. Arizona, 384 U.S. 436.
Before 1966, ''voluntariness'' was the test for determining the admissibility of confessions. This was
the test established through common law. As far back as 1783, an English court held that ''no
credit'' should be given to ''a confession forced from the mind by the flattery of hope, or by the
torture of fear.'' Rex v. Warickshall, 168 Eng. Rep. 234, 235. The underlying value of the test was to
prevent the admission of false confessions.
Both state and federal courts in the 19th century generally adopted this test. In fact, the U.S.
Supreme Court located the voluntariness test both within the Fifth Amendment's self-incrimination
clause (Bram v. U.S., 168 U.S. 532 (1897)) as well as through its general supervisory power over
federal court procedure (Hopt v. Utah, 110 U.S. 574 (1884)).
But in 1936, the Supreme Court faced a conundrum in a case called Brown v. Mississippi, 297 U.S.
278. Brown concerned a confession admitted at a state criminal trial that was clearly obtained by
torture. The problem was that in 1936 the self-incrimination clause was not binding on state courts.
(This would not change until Malloy v. Hogan, 378 U.S. 1 (1964).) Avoiding a struthious posture, the
court instead reversed the Mississippi state court decision by holding that the voluntariness test
was also found in the 14th Amendment's due process clause.
The Supreme Court has held that a statement is involuntary if ''the defendant's will has been
'overborne' or his 'capacity for self-determination critically impaired.' '' Schneckloth v. Bustamonte,
412 U.S. 218, 225 (1973). To make this determination, the court relies on a ''totality of
circumstances'' test that includes both the subjective characteristics of the defendant as well as the
objective details of how the police conducted the interrogation. Between 1936 and 1966, the court
decided almost three dozen cases involving the issue of involuntary confessions.
The 1966 Miranda decision resulted in a sea change in confession law. Miranda, of course, provided
that police may not conduct a custodial interrogation of a suspect without first informing him of his
rights and then obtaining a waiver. Thus, even a voluntary confession can be suppressed if the
police violate the rules of Miranda.
Miranda supplements - but does not supersede - the voluntariness test. In fact, for a criminal-defense
lawyer the ''involuntariness'' argument is always preferred over Miranda. This is true because, while a
statement produced through a Miranda violation cannot be used in the state's case-in-chief, the
statement can still be used for impeachment. Harris v. New York, 401 U.S. 222 (1971). On the other
hand, an involuntary statement cannot be used for any purpose at trial, including impeachment.
Moreover, a voluntary statement obtained in violation of Miranda will not result in the suppression of
physical fruits of the statement. U.S. v. Patane, 542 U.S. 630 (2004). On the other hand, physical fruits
of an involuntary statement are suppressed.
Curiously, since Miranda the U.S. Supreme Court has lost interest in deciding cases dealing with the
issue of voluntariness. Since Miranda came down in 1966, the court has decided close to 80 cases
construing the Miranda decision. Yet during this same period, the court has found only two
statements to be involuntary. Arizona v. Fulminante, 499 U.S. 279 (1991); Mincey v. Arizona, 437 U.S.
385 (1978).
Even worse, the court has erroneously suggested that as long as Miranda is followed the resulting
statement will probably be voluntary. In one of the court's more mystifying statements, it has
insisted that ''[C]ases in which a defendant can make a colorable argument that a self-incriminating
statement was 'compelled' despite the fact that the law enforcement authorities adhered to the
dictates of Miranda are rare.'' Dickerson v. U.S., 530 U.S. 428, 444 (2000), quoting Berkemer v.
McCarty, 468 U.S. 420, 433 n.20 (1984).
But there is no necessary relation between following Miranda and obtaining a voluntary statement.
After all, it is just as easy to use physical force to obtain a confession with a Miranda waiver as
without. So the Supreme Court's lack of interest in developing the ''voluntariness'' doctrine during
the last 40 years is very troubling.
And the Supreme Court's neglect of this area of the law makes any attention state courts provide
even more significant. This is why the 2d District's two new cases deserve serious attention.
In Dennis, the police suspected that the defendant was involved in an incident that resulted in the
shooting of both Curtis Mitchell and the defendant, Kebron R. Dennis, himself. Officer Larry Holman
confronted Dennis alone in a curtained-off area of a hospital emergency room. He observed that
Dennis had a ''through and through'' bullet wound in his upper thigh. Despite this, the officer
repeatedly asked him to reveal the location of the gun used in the shooting. When Dennis
responded that he did not know, the officer repeated the question again and again. The officer
testified that Dennis became visibly upset and began to cry. Further questions by the officer elicited
incriminating answers. After 10 minutes, a nurse entered the room and asked the officer to leave so
that Dennis could receive treatment.
The 2d District held that Dennis' statements were involuntary. In reaching this conclusion, the court
emphasized that the burden of proving that a statement is voluntary lies with the state. Here, the
state introduced no evidence concerning Dennis' precise mental and physical condition at the time
the officer questioned him in the emergency room. The officer did not know whether Dennis had
received medical treatment or whether he had been medicated or whether he was in shock. The
officer admitted that he spoke with no medical personnel concerning Dennis' condition. He
conceded that Dennis' leg injury was bleeding and had not been bandaged during the interrogation.
He also conceded that the defendant began to cry during the questioning. In light of all these
circumstances, the court found that the state failed in its burden of proving that Dennis' statements
were voluntary, and thus it suppressed them.
The court then considered oral and written statements Dennis later made at the police station
following Miranda warnings and a waiver of his rights. The court found insufficient evidence of
attenuation, and thus also suppressed these later statements as fruit of the poisonous tree of the
earlier involuntary hospital statements.
While Dennis dealt with an adult defendant, the Westmorland case dealt with a minor who was 17
years old. Josh L. Westmorland was arrested at his home. The arresting officers neither inquired
whether Westmorland's parents were home, nor made any effort to contact them. At the police
station, Westmorland was read his Miranda rights and then signed a written waiver. At that point
Westmorland asked to speak with his mother. The officer told him that he had no right to have his
mother in the room with him during the interrogation. Westmorland then repeated his request and
the officer made the same reply. A 90 minute interrogation ensued, and defendant made
incriminating statements.
The court found that the state failed to prove that the statements were voluntary by a
preponderance of the evidence. The factor the court found most unsettling was the police officer's
refusal of the defendant's two requests to talk with his mother.
The Juvenile Court Act places an explicit duty on the police, before any interrogation of a juvenile, to
locate a parent; the purpose of this requirement is to provide the juvenile with an opportunity to
confer with a parent before interrogation. 705 ILCS 405/5-405 (2002). The court conceded that the
Juvenile Act did not apply to Westmorland because he was 17. Yet the court looked to what it
referred to as ''common-law/constitutional sources,'' rather than merely statutory authority, for
the importance of what it referred to as the ''concerned adult factor.''
In doing so, the court noted the irony that the difference of one day - the day a person turns 17 would determine whether the statute mandates the help of an adult before interrogation. But
grounding a minor's right to the help of a ''concerned adult'' on the ''common-law/constitutional
sources'' recognizes the reality that ''teenagers do not mature in the span of a day.''
The court conceded that voluntariness is based on the ''totality of the circumstances'' and not
merely the presence or absence of any one factor. Nevertheless, its review of Illinois case law led it
to conclude that ''courts [in Illinois] place an emphasis on the 'concerned adult' factor where the
police fail to honor a minor's request to speak to a parent before or during an interview or where
the police are indifferent to or intentionally frustrate a parent's own efforts to contact the minor.''
It thus held the statements to be involuntary. (Westmorland's Miranda waiver was, of course,
irrelevant to the finding of involuntariness.)
Confession law in the U.S. Supreme Court has often been reduced to arcane Miranda issues. The
court has ceded the hugely important area of voluntariness of confessions almost entirely to state
courts. Criminal-defense attorneys should take note.