Select Page

Criminal Procedure
University of Dayton School of Law
Brenner, Susan W.

Brenner, Criminal Procedure, Fall 2011
Chapter 6: Confessions: The Voluntariness Requirement
A. Torture and Confessions p. 534
Hector (a Slave) v. State p.534
Supreme Court of Wisconsin, 1829
P- Hector accused by the state of burglary
D- State
PH- prisoner’s counsel moved the court to exclude testimony that McKinney (a witness) that Hector confessed to the crime, court refused to exclude the information, and instead the court said that the jury should exclude a confession made by Hector
Facts- Hector was beaten by certain persons in relation to a burglary that they thought he committed. After beating him for hours he confessed to the crime and said that he would get the money. However, he was unable to recover any money, so they then beat him and left him.
·         McKinney came to Hector after hearing his screams and asked him if he took the money. Hector did then confess that he had taken the money. McKinney testified as to this matter.
Issue – Did the court err in refusing to exclude the testimony of McKinney from the jury?
Rule- A confession must be given free and voluntarily for it to be considered competent testimony.
Holding – The court DID err. The court also failed to correctly instruct the jury as to the matter of the confessions. It is a matter that should be decided by the court rather than the jury whether or not a confession was given free and voluntarily.
Brown v. Mississippi p. 25
Supreme Court of the United States, 1936
P- Mississippi
D- Brown
PH – Trial court the jury found that the men were guilty and they were sentenced to death. On appeal to the state supreme court the judgment was affirmed. The case was then further appealed to the US Supreme Court.
Facts- defendant was beaten and told the officers would continue beating him until he confessed to the crime.
Issue- The question in this case is whether convictions, which rest solely upon confessions shown to have been extorted by officers of the State by brutality and violence, are consistent with the due process of law required by the 14th amendment of the constitution.
Rule – The state may not deny to the accused the aid of counsel. Nor may the state, through the action of its officers, contrive a conviction through the pretense of a trial with in truth is but used as means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. And the trial is equally is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence. The due process clause requires “that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.  
Holding- the conviction and sentence were void for want of the essential elements of due process, and the conviction must be overturned.
Charles Krauthammer – the truth about torture: It’s time to be honest about doing terrible things. p.536
The “ticking time bomb” – where a terrorist attack has been planned and set out, and you have caught the suspect and you have limited time to stop the attack.
Elements of the ticking time bomb
·         1. It must be certain that a bomb has been planted
·         2. That it is about to explode
·         3. That the interrogee has information essential for its disarmament
·         4. That this information can be extracted from him by torture, and only by torture
·         5. That only the necessary amount of force will be used by the interrogators
·         6. That the information would prevent the explosion of the bomb
o   Two dilemmas:
§  1. The inhumanity of torturing a suspect
§  2. The duty to protect victims of a potential mass murder
Torture should be banned except in two situations
·         1. The ticking time bomb
o   could use any rational method of torture to quickly get information to stop the ticking time bomb
·         2. The slower-fuse high-level terrorist
o   torture must be proportionate to the type of information that you are trying to extract from the person
o   interrogators should be constrained to use the least inhumane tactics as necessary to get the information
B. Police interrogation without Torture p. 543
Lisenva v. California
Supreme Court of the United States, 1941
P- Robert S. James – husband
D- State of California
PH- James was convicted of murder of his wife and sentenced to death.
Facts- James was married to Mary for a short time. He had taken out a life insurance policy on her and he was the beneficiary. At some point in time he had contacted a woman named Hope to perform an abortion on his wife. The story then differs from everyone involved. Hope states that she was sold James rattlesnakes and when those didn't kill his wife he drown her in the

·         Spano went home, got a gun and walked about nine blocks to a candy store where the decedent and three of his friends as well as a boy running the store were.
·         Spano fired five shots into decedent killing him.
·         Spano then hired an attorney and turned himself in with instructions from his attorney not to answer any questions.
·         Spano’s childhood friend was going through the police academy, and after hours of the police questioning him with Spano not speaking they told Bruno to try and get sympathy from him and on the fourth time of talking to him he was able to get a confession.
·         The interrogation lasted for at least eight hours, beginning late in the evening and ending in the early morning hours, Spano was also denied an attorney each time he asked for one.
Issue- was a confession properly admitted under the 14th Amendment.
Rule – look to see if the defendant’s will was overborne
Holding – The conviction cannot stand, ruling in favor of the petitioner.
Notes and Questions p. 561
5. Arizona v. Fulminante
·         Facts – Fulminante was accused of killing his step-daughter, while in prison made friends with Sarivola a former police officer and told him about the crimes, Sarivola then told the police this information and it was used against Fulminante in court for his conviction
·         Issue – was the confession coerced?
·         Rule- the totality of circumstances test
·         Holding – Fulminante’s confession was a direct result of coercion that violated his 5th and 14th amendments, the conviction must be overturned.
·         The test of voluntariness
o   Is the confession the product of an essentially free and unconstrained choice by its maker?
§  If yes, then he has willed to confess and it may be used against him
§  If NO, then his will has been overborne and his capacity for self-determination is critically impaired, and to use his statements would violate due process