Confession in European legal history
For much of recorded European history, confessions, often extracted by torture, were used to investigate and punish crime. Unlike their counterparts in Asia, however, sectarian and secular authorities in Europe rarely extended leniency to those who confessed to wrongdoing. In 1184 Pope Lucius III initiated the Roman Catholic Inquisition by requiring bishops to make judicial inquiries into heresy in their dioceses. The Inquisition soon became a distinct institution, directly responsible to the pope, in which sectarian judges would coerce confessions from suspected heretics through the use of torture and lengthy confinement in dark, damp, and filthy dungeons.
In the middle of the 13th century, the secular courts of northern Italy began to use torturous methods to extract confessions from suspected lawbreakers. By the 16th century, torture was legally and routinely employed by almost all of the major states of Europe (England was an exception) to investigate crime. The authorized use of judicial torture was not abolished in continental Europe until the mid-18th century. The abolitionist movement was championed by Voltaire, Cesare Beccaria, and other Enlightenment scholars who pointed to numerous cases in which innocent persons had confessed to crimes they had not committed.
In medieval England, corporal and capital punishments were commonly imposed on those convicted of crime, but torture was never officially condoned as a means of extracting confessions. The English rejected the inquisitorial methods of other European nations and instead relied upon an accusatorial model in which judges presided over jury trials and had no duty or authority to secure a defendant’s confession. They served essentially as referees between the prosecution and the defense. As appointees of the crown, English judges often were partial to the prosecution, but they had no power to initiate cases or gather evidence.
A defendant’s confession, introduced by the prosecution, was admissible and powerful evidence, but throughout the Middle Ages English judges had the authority to reject a confession obtained through the use of torture or other cruel methods of interrogation. To be sure, there were some cases in which English judges, in violation of the common law, bowed to the reigning monarch and permitted the use of the rack, the thumbscrew, and other instruments of torture to elicit a confession. Nevertheless, by the middle of the 17th century, the English had come to believe that it was unfair and generally unlawful to use torture or threats of torture to force confessions from suspected criminals. Similar attitudes were adopted in the North American colonies that later became the United States.
Confession in U.S. legal history
As English common law gradually became American law in the 17th and 18th centuries, the American colonies adopted an accusatorial approach to criminal justice. Although confessions were commonly admitted in criminal prosecutions, there was a growing respect for the principle that forcing suspected criminals to incriminate themselves violated fundamental human rights. The framers of the United States Constitution and its first 10 amendments—the Bill of Rights—viewed protection against self-incrimination as a central feature of an accusatorial system of criminal justice. When the Bill of Rights was ratified by the states in 1791, the Fifth Amendment’s command that “no person…shall be compelled in any criminal case to be a witness against himself” became a constitutional right in the United States.
The ratification of the Bill of Rights did not end coercive methods of obtaining confessions, however—in fact, it did not significantly affect state and local law-enforcement practices until the middle of the 20th century. There was in particular no immediate consensus as to precisely how the Fifth Amendment governed law-enforcement interrogation practices. Moreover, the Bill of Rights originally applied only to the federal government and not to the practices of state and local law-enforcement officials. Indeed, it was not until the U.S. Supreme Court’s 1884 decision in Hopt v. Utah that the federal courts were required to strictly enforce the common-law rule prohibiting the use of confessions extracted by physical force or threats of violence. Since Hopt, federal courts have barred coerced and other involuntary confessions either as a matter of federal evidentiary rules or as a matter of upholding defendants’ constitutional rights.
Well into the 20th century, state and local courts in most states permitted statements obtained through coerced confessions to be introduced as evidence in criminal cases. In Brown v. Mississippi (1936), however, the Supreme Court for the first time invalidated a state criminal conviction on the grounds that the conviction was based on a coerced confession.
Confession in contemporary U.S. law
From 1936 to 1964, the Supreme Court reversed numerous state and federal convictions on the grounds that the confessions on which they were based had been obtained through coercive methods that violated the defendant’s due-process rights. In Chambers v. Florida (1940), the court held that the use of mental torture, accompanied by threats of violence, was enough to justify the suppression of a confession. In Ashcraft v. Tennessee (1944), a case in which a suspect confessed after 36 hours of continuous interrogation under the glare of bright lights, the court made it clear that intense psychological pressure, even in the absence of physical brutality, could render a confession inadmissible.
In a separate series of decisions based not on constitutional principles but on the Supreme Court’s general power to supervise the federal judicial system, the court held that confessions obtained after “unreasonable delay” in taking suspects to court for arraignment could not be used as evidence in a federal court. The court first announced this rule in McNabb v. United States (1943), in a decision that nullified two second-degree-murder convictions because they were based almost entirely on confessions made after the defendants were subjected to three days of police questioning in the absence of counsel. Fifteen years later, in Mallory v. United States (1957), the court reaffirmed the McNabb prompt-arraignment rule by vacating the conviction of a man who had confessed to rape during a delay of more than 18 hours between his arrest and his arraignment.
The McNabb-Mallory prompt-arraignment requirement was subsequently weakened somewhat by Congress. Today a confession made by a person kept in police custody for an unreasonable amount of time can be used as evidence in a federal trial if the confession is still deemed to have been voluntary in light of all the circumstances surrounding the interrogation. Thus, police failure to arraign an arrestee in a reasonably prompt manner will not automatically negate a federal conviction based on a confession. Nevertheless, both federal and state courts look closely at confessions secured during unusually long interrogations prior to arraignment, and it is not uncommon for such confessions to be ruled inadmissible in a criminal trial.
The most important developments in this area of law occurred in the mid-1960s. First, in Malloy v. Hogan (1964), the Supreme Court finally established that the Fifth Amendment’s self-incrimination clause applies to the states as well as to the federal government. By extending the privilege against self-incrimination to state defendants, Malloy laid the groundwork for one of the most controversial Supreme Court decisions of the 20th century: Miranda v. Arizona (1966). In reversing the rape and kidnapping convictions of Ernesto Miranda, the court did not find that he had been physically abused or subjected to severe psychological pressure. Instead, the court established guidelines intended to clarify and enforce a 1964 decision—Escobedo v. Illinois—that required police to permit suspects to have an attorney present during interrogation when “the process shifts from investigatory to accusatory” and when the purpose of the interrogation is to elicit a confession. In Miranda a 5–4 majority held that the self-incrimination clause forbids police to conduct in-custody interrogations unless they first warn the suspect (the now-famous Miranda warning) of his Fifth Amendment right to remain silent. Writing for the majority, Chief Justice Earl Warren declared that
the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.
The Miranda decision elicited an outpouring of criticism and dire predictions that the holding would have a “crippling” effect on law enforcement. Despite the initial criticism, however, studies of the Miranda ruling’s effects on police practices and performance indicate that its impact has been negligible. Studies done in the first several years after the decision found little or no change in confession and conviction rates in most jurisdictions—in part because most suspects, when read their Miranda rights, nevertheless agreed to speak with police. Studies done in the 1990s generally showed that as the police adapted to Miranda over time, confession rates remained largely unchanged and convictions were rarely reversed on appeal because of a Miranda violation.
It is possible that one of the reasons Miranda has not had a crippling effect on law enforcement is that the Supreme Court has created numerous exceptions to the holding. The erosion of Miranda began in Harris v. New York (1971) with a 5–4 ruling that statements secured in violation of Miranda would still be admissible in a criminal trial if the defendant testified on his own behalf and the prosecutor used the otherwise inadmissible statements in an effort to impeach the defendant’s credibility.
The court also limited the scope of Miranda by adopting extraordinarily narrow definitions of “custody” and “interrogation.” For example, in Oregon v. Mathiason (1977), a “non-Mirandized” suspect confessed to a burglary after he voluntarily complied with an officer’s request to meet him at a police station. The court held the confession to be admissible on the theory that the suspect had not truly been “in custody” for the purposes of Miranda, because he had not been formally arrested before the interrogation and thus should have felt free to leave the station without answering the officer’s questions. A comparably narrow definition of “interrogation” was embraced by the court in Rhode Island v. Innis (1980), in which a 6–3 majority held that a contrived conversation between police officers conducted in the presence of a suspect and intended to elicit incriminating statements from him did not constitute an interrogation that would require adherence to Miranda. More than 30 years later, in Howes v. Fields (2012), the court ruled that a prisoner who had been removed from his cell and questioned by police about events that occurred before he was imprisoned did not need to be advised of his Miranda rights because, although he was in prison, he was not “in custody.”
In Nix v. Williams (1984), the court created an “inevitable discovery” exception to the Miranda requirements, under which a confession obtained in violation of Miranda is still admissible in a criminal prosecution if it appears that evidence from the confession would ultimately have been discovered as police continued to investigate the case. Shortly thereafter, in New York v. Quarles (1984), the court approved a “public safety” exception to the Miranda requirements, under which confessions obtained in violation of Miranda are admissible if the police officers’ questions were “reasonably prompted by a concern for the public safety.” Another noteworthy weakening of Miranda was announced in Duckworth v. Eagan (1989), in which the court asserted that it is not necessary for police to read the Miranda warnings in the same words used in the decision itself. In Pennsylvania v. Muniz (1990), the court further limited Miranda by holding that when police pull over suspected drunken drivers, they can ask routine questions of the suspects and videotape the questioning without issuing Miranda warnings.
A significant exception to this trend was the court’s decision in Dickerson v. United States (2000), which overturned an appeals court ruling that had upheld the admissibility as evidence of non-Mirandized statements from a bank robbery suspect on the grounds that Miranda had been effectively superseded by a 1968 federal law that declared all voluntary confessions admissible. Writing for a 7–2 majority, Chief Justice William Rehnquist acknowledged that the court had often suggested that Miranda was not truly a constitutional holding and thus could be countermanded by Congress. He declared, however, that a close reading of the Miranda opinion indicated that “the majority thought it was announcing a constitutional rule,” which Congress “may not legislatively supersede.” He further explained that, though some of the current justices might not have agreed with the Miranda holding had they been members of the court in 1966, the principles of stare decisis now weighed heavily against overruling it. “Miranda has become embedded in routine police practice,” Rehnquist observed, “to the point where the warnings have become part of our national culture.”
Despite this affirmation of the Miranda rule, the court continued in subsequent decisions to create exceptions to its application. In Berghuis v. Thompkins (2010), for example, the court held that a criminal suspect who has been informed of his right to remain silent must explicitly invoke that right before police are required to cease questioning him; merely remaining silent is not enough. (Thus, police are permitted to use incriminating statements made by a suspect after a long period of silence.) Three years later, in what the plurality characterized as a logical extension of Berghuis, the court declared in Salinas v. Texas (2013) that a criminal suspect who is not in police custody must expressly invoke his right to remain silent in order to be protected by it—notwithstanding the fact that he has not been informed (and thus may not know) that he has such a right. Although the court had long held that the right to remain silent entails that prosecutors may not use an individual’s silence or his refusal to answer questions during in-custody interrogation or at trial as evidence of his guilt (the right would be empty if an individual could place himself in legal jeopardy merely by exercising it), Justice Samuel A. Alito’s controlling opinion held that a suspect outside custody who merely “stands mute” in the face of questioning is not entitled to the same protection. Without the suspect’s express invocation of his right, he argued, the courts cannot safely assume that his silence proceeded from a desire not to incriminate himself or from some other motive—e.g., “because he was trying to think of a good lie, because he was embarrassed, or because he was protecting someone else.”
