Exploring the Admissibility of Confessions Taken by U.S. Investigators From Non-Americans Abroad, The

New Frontier of Constitutional Confession Law-The International Arena: Exploring the Admissibility of Confessions Taken by U.S. Investigators From Non-Americans Abroad, The

Godsey, Mark A

INTRODUCTION

In recent years, American crime, like the American economy, has become markedly more global in nature.1 Advances in technology have made former obstacles such as national borders and continental distances less daunting to foreign criminals who target the United States and its citizens with criminal schemes ranging from Internet fraud to drug trafficking to horrific acts of terrorism.2 As a result of this trend, the Federal Bureau of Investigation (FBI) and other federal law enforcement agencies are dispatching their agents with increasing frequency beyond the borders of the United States to investigate violations of American criminal laws committed by non-American3 citizens.4 Indeed, the FBI planned to double the number of agents it stationed abroad between 1996 and 2000 alone.5 In light of the terrorist attacks in New York and Washington, D.C. on September 11, 2001, and with the persistent ebb of technological advances that continue to shrink the globe for enterprising foreign criminals, this heightened international presence will undoubtedly become a fixture of U.S. law enforcement in the years to come.6

A question of constitutional significance that will have to be resolved in this context is to what extent the various provisions of the Bill of Rights apply to non-Americans, if at all, when they are interrogated by American law enforcement officials abroad. Within the territorial boundaries of the United States, several different constitutional doctrines control the admissibility of pretrial confessions taken by law enforcement officials. These include the Miranda doctrine,7 the due process “involuntary confession rule” of the Fifth and Fourteenth Amendments,8 the Fifth Amendment’s prohibition against compulsory self-incrimination9 and the Sixth Amendment’s right to counsel.10 The Supreme Court has held that these protections apply during interrogations occurring within the United States regardless of the alienage11 of the suspect under interrogation.12 The Supreme Court has also held that these constitutional protections apply to American citizens who are interrogated by U.S. law enforcement officials outside of the United States.13 But do these protections apply to non-Americans located outside of the United States at the time of the interrogation? Can an Italian citizen who has been brought to the United States for trial successfully claim, for example, that the confession he made to an FBI agent in Italy must be suppressed because the FBI agent failed to recite Miranda warnings to him before the interrogation commenced? Can he claim that his confession should be suppressed because the FBI agent coerced it from him in violation of the due process involuntary confession rule? Can this defendant accurately assert that he was cloaked with the protections of the privilege against compulsory self-incrimination or the Sixth Amendment right to counsel during his interrogation in Italy?14

These questions have not yet been clearly answered by United States courts. Without guidance from the Supreme Court, lower courts facing these issues thus far have typically expressed confusion at the outset, followed by conclusory judgments that fail to address the inherent difficulties presented by these issues.15 In many instances, these courts have done nothing more than make admitted assumptions that these constitutional rights either do or do not apply, without providing any explanation or citing any legal support whatsoever for their assumptions.16 Yet in light of the ongoing globalization of crime, thoughtful and accurate answers to these questions are of increasing importance to all American criminal investigations abroad.17 As a consequence, federal courts, and ultimately the Supreme Court, will be forced to confront these questions head-on in the not too distant future. In so doing, the courts will need to carefully examine the origin, text, policies, and precedents of these constitutional provisions to accurately determine their applicability in the international arena.

In a recent article, I addressed the first question that naturally arises in this context: whether Miranda warnings are required at the outset of an FBI interrogation of a non-American citizen abroad.18 In that article, I examined the flexible, prophylactic nature of the Miranda doctrine,19 the policies underlying that doctrine, and the difficulties inherent in requiring Miranda abroad (for example, how can an FBI agent abroad advise a foreign suspect that he has a right to an attorney during an interrogation when the law of the foreign country where the interrogation takes place prohibits the presence of defense attorneys during pretrial interrogations?).20 I then applied the balancing test that determines Miranda’s applicability to new situations not addressed by the original Miranda decision.21 I concluded that courts should not require FBI agents to strictly adhere to the dictates of Miranda abroad.22 Rigidly requiring Miranda warnings in the international arena would unduly burden American law enforcement interests while simultaneously failing to advance the civil liberties that the Miranda court intended to protect domestically when it originally carved its now-famous warning/waiver procedure.23

But the answer to the first question logically raises the more important question that I address in this Article: If Miranda does not necessarily apply in the international arena, what constitutional limitations on interrogations, if any, do apply? Indeed, the Supreme Court has carved numerous exceptions to Miranda’s applicability within the United States.24 Where Miranda’s warning/ waiver framework does not apply within the United States, two distinct constitutional doctrines exist as possible “default” rules. The first, the due process involuntary confession rule, excludes from trial confessions that are made “involuntarily” as a result of police coercion.25 The Second, the privilege against compulsory self-incrimination, renders inadmissible confessions that were “compelled” by police coercion.26 The Supreme Court, largely as a result of judicial politics and compromises,27 has indicated a preference for the due process involuntary confession rule as the default rule where Miranda does not apply.28 One might assume, therefore, that the same answer is appropriate abroad: Because Miranda does not necessarily apply abroad, the primary test for admissibility in this context is whether the confession was made “voluntarily” in compliance with the Due Process Clause.

A close examination of this issue, however, reveals an intriguing dilemma. As will be discussed below, when applying the appropriate tests for extraterritorial application of the Bill of Rights to the due process involuntary confession rule, one cannot escape the conclusion that the rule does not protect non-Americans located beyond the borders of the United States.29 But does this due process void mean that FBI agents are free to coerce confessions from such suspects through brute force and torture, and then introduce such confessions into evidence at trial in the United States? As will be demonstrated in this Article, the answer is no. Indeed, further exploration reveals that such suspects are not stripped of all constitutional protections; rather, despite their lack of U.S. citizenship and their location outside of the United States during their interrogation, these suspects are clearly protected by the privilege against compulsory self-incrimination and its ban on “compelled” confessions.30

But this answer gives rise to yet another important question: When is a confession considered “compelled” in violation of the privilege? At the current time, we have no clear answer. In the domestic setting, the due process rule prohibiting “involuntary” confessions and the privilege’s ban on “compelled” confessions both apply to interrogations, and both theoretically regulate the amount of coercion that the police may constitutionally apply to a suspect. Given the choice of two doctrines, the Supreme Court has chosen to rely almost exclusively on the due process involuntary confession rule instead of the privilege as the basis for excluding problematic confessions.31 As a result, the Court has thoroughly developed the contours of the due process involuntary confession rule, but has failed to establish a clear legal standard to determine when a confession is “compelled” in violation of the privilege.32 However, because the Due Process Clause is inapplicable in the international arena, this choice between two doctrines is not available. Accordingly, the due process involuntary confession rule will no longer shield the privilege against compulsory self-incrimination from judicial scrutiny in this context, and the courts will be forced, once and for all, to determine what it means for a confession to be compelled.

This Article considers the above quandary and offers a solution. Part I explores in detail the constitutional confession rules that apply within the United States, establishing the requisite background for the remainder of the Article. Part II examines the tests for determining the extraterritorial application of provisions of the Bill of Rights to non-Americans abroad and posits that, under current Supreme Court precedent, non-Americans cannot claim the protection of the due process involuntary confession rule when they are located beyond the borders of the United States. This Part demonstrates that the only constitutional protection available to non-Americans abroad who are interrogated by FBI agents is the Fifth Amendment’s prohibition of “compelled” confessions under the privilege against compulsory self-incrimination. Thus, the international arena presents a new frontier for American constitutional confession law that will force federal courts to forge a new understanding of the privilege in the interrogation setting, and to define the meaning of “compelled.” Accordingly, Part III explores the historical origins, text, and policies of the privilege, along with the relevant Supreme Court cases interpreting the privilege in non-interrogation contexts, and offers a definition of “compelled” that is in harmony with each. In so doing, this Part critiques the alternative definitions of “compelled” offered thus far by other scholars. This analysis reveals that the appropriate test for compulsion under the privilege is different from the due process involuntary confession rule in several respects, and, in some ways, is more protective of a suspect’s rights than the due process standard. Finally, this Article posits that this historically and textually accurate understanding of a “compelled” confession should be used in future cases in U.S. courts when determining the admissibility of confessions made by non-Americans to American law enforcement officials abroad.

I. CONSTITUTIONAL CONFESSION LAW WITHIN THE TERRITORIAL BOUNDARIES OF THE UNITED STATES

Several different constitutional doctrines operate in distinct but overlapping spheres to regulate the admissibility of pretrial confessions in American courts. Determining the extraterritorial application of these doctrines to non-Americans, however, demands a specific type of analysis that has not yet been fully performed by courts or other scholars. This analysis requires examination of the text, history, functions and policies of these doctrines, with particular focus on certain temporal issues that ultimately control their applicability abroad. Before turning to this analysis it is first necessary to create the appropriate backdrop. Accordingly, this Part explores in some depth how the various confession doctrines have evolved and currently function within the territorial boundaries of the United States. This discussion is referred to repeatedly in later sections of this Article, as distinctions are drawn and comparisons made.

A. 1897-1936: THE PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION EMERGES

The provision in the Bill of Rights that is the most textually relevant to the issue of coerced confessions is the Fifth Amendment’s privilege against compulsory self-incrimination. The Fifth Amendment states, in pertinent part: “No person . . . shall be compelled in any criminal case to be a witness against himself.”33 The privilege means, in its simplest form, that a criminal defendant cannot be called against his will to testify at trial or any other formal proceeding about the acts with which he is criminally charged or about anything else that might incriminate him.34 In 1897, the Supreme Court in Bram v. United States35 first held that the privilege prohibits the introduction into evidence of a confession that has been coerced by the police during a pretrial interrogation.36 In this respect, the Court stated: ‘”[A] confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.'”37 The rationale behind this extension of the privilege against compulsory self-incrimination from the formal trial setting to informal police interrogations is that if the police force a suspect to give a confession against his will, and if that confession is later used against him at trial, the suspect has essentially been compelled to testify against himself at trial.38 The holding in Brain, however, only restrained the conduct of federal law enforcement officials; the privilege was not made applicable to the states until more than half a century later.39

B. 1936-1966: THE DUE PROCESS INVOLUNTARY CONFESSION RULE REPLACES THE PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION

In the 1930s, the Supreme Court began reviewing state court convictions in which confessions obtained by the police through torture or other offensive means had been admitted into evidence.40 Because the privilege against compulsory self-incrimination had not been incorporated (and applied to the states) through the Fourteenth Amendment at that time, the only option that the Court had at its disposal to exclude such problematic confessions was to create a corollary to the privilege using a provision in the Bill of Rights that had previously been deemed applicable to the states.41 Accordingly, the Court announced a new “voluntariness test”-this time rooted in the Due Process Clause of the Fourteenth Amendment-and began using this doctrine rather than the privilege to exclude troublesome confessions.42 The Supreme Court described this “due process involuntary confession rule” in Schneckloth v. Bustamonte as follows:43

‘The ultimate test remains … the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.’

In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstancesboth the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused, his lack of education, his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of the detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.44

After creating this “due process involuntary confession rule,” the Supreme Court began using it to suppress involuntary confessions not only in state cases, but in federal cases as well.45 The Due Process Clause of the Fourteenth Amendment was used in state cases,46 and the nearly identical Due Process Clause of the Fifth Amendment was used in federal cases.47 As the Supreme Court later reflected in Dickerson v. United States,48 “for the middle third of the 20th century our cases based the rule against admitting coerced confessions primarily, if not exclusively, on notions of due process. We applied the due process voluntariness test in ‘some 30 different cases decided during [that] era.'”49 During this period of due process supremacy, the Court virtually ignored the privilege against compulsory self-incrimination and the Bram decision. It was therefore unclear whether Bram was still good law or even whether the privilege was still considered applicable to pretrial interrogations.50

c. 1966: THE PRIVILEGE RESURFACES IN MIRANDA v. ARIZONA

By the mid-1960s, the Court had grown dissatisfied with the due process involuntary confession rule. This dissatisfaction reflected in part the highly subjective nature of the test, which essentially required a district court both to reconstruct minute details of an interrogation after the fact and to attempt to divine the defendant’s state of mind at the time of the interrogation in order to determine whether his will had been overborne.51 This subjectivity rendered the test inherently difficult for the lower courts to apply.52 In addition, the test lacked the bright-line quality that the Court has always favored in criminal procedure jurisprudence,53 which meant that police officers were left with unclear and inconsistent messages as to how they should conduct interrogations.54 Consequently, the rule was repeatedly violated and was largely ineffective at curbing offensive police conduct. By the mid-1960s, the Court began looking for a substitute doctrine.55 After a short-lived experiment with the Sixth Amendment’s right to counsel in Escobedo v. Illinois,56 the Court settled on the replacement it had been looking for in Miranda v. Arizona.51

In Miranda, the Supreme Court changed the inquiry from a voluntariness standard to a bright-line warning/waiver requirement and, at least temporarily, shifted the focus of confession law from the Due Process Clauses of the Fifth and Fourteenth Amendments back toward the privilege against compulsory self-incrimination.58 In overruling prior cases that held the privilege inapplicable to the states, Miranda made clear that the privilege applies to state as well as federal law enforcement officials and, like the due process involuntary confession rule, protects suspects from coercion during the pretrial interrogation stage of an investigation.59 In examining the privilege in the interrogation context for the first time since Rram, the Miranda Court reformulated its interpretation of the term “compelled”-the textual focal point of the privilege. Although the Court did not provide a dictionary-type definition of when a confession is “compelled,” it made clear that the longstanding police practice of interrogating suspects while in custody is a device that produces compelled confessions-even when no torture or “third-degree” tactics of any kind are utilized.60 The Court based this holding on its belief that when a police officer does nothing more than ask a question of a detained suspect,61 that act-combined with the fact that the suspect is in custody and is therefore not free to leave-creates an atmosphere that is “inherently coercive” to the suspect.62 The atmospheric pressure that flows from custodial interrogation, by itself, is sufficient to constitute “compulsion” in violation of the privilege.63 Thus, although the contours of the term were not made clear, the Court in Miranda interpreted the term “compelled” very broadly. As the Court itself acknowledged in Miranda, this new interpretation of “compelled” under the privilege was more protective of suspects’ civil liberties than the previous due process standard.64

The Court in Miranda did not, however, go so far as to ban custodial interrogation outright. Rather, the Court ruled that a police officer may engage a suspect in custodial interrogation if he first takes affirmative steps to dispel the coercion inherent in the setting so that the suspect will no longer feel compelled to speak.65 The pressure may be dissipated by informing the suspect that he has the right to remain silent, that his statements may be used against him at trial, that he may have an attorney present during the interrogation, and that if he cannot afford an attorney one will be appointed for him.66 The interrogating law enforcement officer must then obtain a voluntary waiver of those rights from the suspect before he may commence questioning.67 If the officer fails to do so, any resulting statements will be considered compelled per se, and will be inadmissible at trial.68

Thus, since Miranda, there have been two separate but parallel confession doctrines that apply to both federal and state governments alike: the due process involuntary confession rule, and the privilege against compulsory self-incrimination with its ban on compelled confession.69 At least from textual and doctrinal standpoints, the privilege seems the more appropriate provision with which to regulate confessions, as it speaks directly to the issue of compulsory self-incrimination, while the Due Process Clauses are silent on the matter.70 And, because the Court created the due process involuntary confession rule in the 1930s simply to fill the void left by the privilege’s inapplicability to the states in that era,71 that doctrine no longer seems necessary now that the void had been filled by the holding in Miranda. Thus, one might have reasonably assumed that after Miranda the Court would have allowed the due process involuntary confession rule to become dormant-or would have overruled it entirely-and would have instead based the admissibility of confessions solely on whether they were compelled in violation of the privilege.72 This approach would have allowed the Court to hone its interpretation of the privilege and to continue clarifying when a confession is “compelled.” But this did not occur. Instead, two things happened. First, the Court carved several exceptions to Miranda that undermined its previously broad interpretation of the term “compelled.” Second, the Court inexplicably retained the due process involuntary confession rule as the default test for each of the newly-created scenarios where the Miranda warning/waiver procedure was deemed inapplicable.

D. POST-MIRANIM: THE PRIVILEGE ONCE AGAIN TAKES A BACKSEAT TO THE DUE PROCESS INVOLUNTARY CONFESSION RULE

In its 1984 decision in New York v. Quartes.73 the Court created what has become known as the “public-safety” exception to the Miranda doctrine. This exception holds that when police officers have a pressing need to question a suspect to avoid a potentially imminent danger to themselves or the public, they may engage a suspect in custodial interrogation-and apply the limited amount of pressure associated with it-without first administering Miranda warnings.74 In carving this exception, the Quartes Court instructed that the absence of Miranda warnings prior to custodial interrogation does not mandate the conclusion that any resulting confession was “compelled” in violation of the privilege.75 This holding was directly at odds with one of the basic tenets of Miranda: Because compulsion is inherent in custodial interrogations, a confession is considered compelled per se if it is obtained through custodial interrogadon when the police do not first take steps to dissipate the atmospheric pressure on the suspect.76 The Quarles holding, therefore, unquestionably relaxed the Court’s interpretation of the term “compelled” in favor of greater police latitude, because it made clear that a finding of “compulsion” now requires some undefined amount of pressure beyond the level inherent in custodial interrogation.

Quarles and the other Miranda-exception cases77 have not completely overruled Miranda in the sense that the basic warning/waiver procedure has been retained in most scenarios as the initial inquiry in determining the admissibility of a confession. But the warnings have become detached from the privilege and the concept of compulsion. Indeed, the Miranda-exception cases have made clear that the warnings are not necessary to keep a confession from being considered compelled; instead, they are now seen as a bright-line prophylactic rule, designed to protect the privilege, that “sweeps more broadly than the [privilege] itself.”78 In other words, the Miranda warnings requirement is now viewed as a judicially created rule, similar to a common law rule of evidence, designed to supply “practical reinforcement”79 to the privilege by providing an easy and effective litmus test to determine when a confession is admissible in most situations.80 In any situation where the Court has not carved a Miranda exception, the mere failure to provide Miranda warnings will likely result in a determination that the confession is inadmissible. The confession is inadmissible, however, only because the prophylactic rule has been violated, not because the lack of warnings rendered the confession “compelled” in violation of the privilege. It is this framework that made it feasible for the Court to create exceptions to the Miranda doctrine because the Court could allow statements taken in violation of Miranda to be introduced in certain circumstances, as long as the underlying constitutional right-the privilege-was not infringed. In doing so, the Court was carving exceptions only to a judicially created prophylactic rule, not to an underlying constitutional right.81

Even more important was the new test for admissibility that the Court set forth in the Miranda-exception situations. Indeed, simply holding that the privilege is no longer violated by mere custodial interrogation-because custodial interrogation no longer equates with compulsion-does not mean that police officers are free to torture suspects to obtain confessions in these situations. Rather, it means that the pressure applied in Quarles and the other Miranda-exception cases-custodial interrogation-did not constitute compulsion in violation of the privilege. The officers in those cases violated only the Miranda rule-a prophylactic rule to which the Court is free to make exceptions as it sees fit. One might reasonably have assumed that the test for these cases, therefore, would still be whether the confession was “compelled” in violation of the privilege-whatever that term now means.

After Quarles, when is a confession considered “compelled”? The line that Miranda drew in the sand at “custodial interrogation” has been erased and moved back, but where has the new line been drawn? Inexplicably, the Supreme Court has not drawn a new line.82 Instead, the Court has avoided the issue by holding that where the Miranda doctrine is inapplicable, the “back-up” test for the admissibility of a confession is not whether it was compelled in violation of the privilege, but whether it was made voluntarily under the old due process involuntary confession rule.83 The Miranda-exception cases have continued to insist that the privilege and its prohibition of compelled confessions remain applicable to the pretrial interrogation context.84 Yet, for reasons left unstated, the Court has declined to provide clear guidance on the precise role of the privilege in police interrogations, and has continued instead to emphasize pie-Miranda notions of due process and voluntariness.85

Why the doctrinal inconsistencies? Why has the Court fashioned a bi-layered approach that favors a prophylactic rule based on the privilege in some scenarios, and the due process involuntary confession rule in others? Why did the Court return to the due process involuntary confession rule at all after the Miranda decision seemingly made that doctrine obsolete?86 Although the Court has never provided a satisfactory answer, at least one scholar has concluded that the due process involuntary confession rule survived because certain members of the Court were hostile to Miranda and hoped eventually to overrule it, returning the focus of confession law back to the less restrictive due process standard.87 Retaining the involuntary confession rule, and having it already positioned as the default test where Miranda was inapplicable, would make that transition easier. However, now that any idea of overruling Miranda has been laid to rest with the Court’s 2000 decision in Dickerson v. United States,88 we are left with a state of constitutional confession law that is doctrinally unsatisfying and incomplete.

E. TODAY: THE BI-LAYERED APPROACH

In summary, despite the doctrinal inconsistency and gaps, a bi-layered procedure for determining the admissibility of confessions can be gleaned from the leading cases. The Miranda doctrine, which is a prophylactic rule derived from the privilege against compulsory self-incrimination, remains the preliminary litmus test for the admissibility of a confession in most scenarios. The due process involuntary confession rule, on the other hand, serves as the default test when Miranda does not apply. The two doctrines work in tandem as follows: If the appropriate warnings were not given, then the confession must be suppressed pursuant to the prophylactic Miranda rule; however, if the facts fit within a Miranda exception, warnings are not required. The confession may be inadmissible, despite the Miranda exception, under notions of due process when it fails to satisfy the involuntary confession rule due to police coercion. The privilege’s ban on compelled confessions, meanwhile, remains applicable to interrogations, but the Court has not defined its new meaning. Indeed, the privilege (and its role in interrogations) has become lost and forgotten, as it has once again taken a back seat to the due process involuntary confession rule.

II. THE EXTRATERRITORIAL APPLICATION OF CONSTITUTIONAL CONFESSION LAW TO NON-AMERICANS

In a recent article, I presented arguments in favor of an international Miranda exception.89 This exception would apply when the following three circumstances are present: 1) the interrogation is conducted by American law enforcement agents; 2) the subject under interrogation is not an American citizen; and 3) the interrogation takes place beyond the borders of the United States.90 The next question, and the focal point of this Article, is which doctrine, if any, controls the admissibility of confessions in the above circumstances in the place of the Miranda doctrine? As will be demonstrated below, the due process involuntary confession rule, which is the default rule in the United States for situations in which Miranda does not apply, is inapplicable to interrogations of non-Americans abroad. Section A demonstrates that although the Due Process Clause of the Fifth Amendment91 purports to apply to any “person,” this seemingly all-inclusive term, by itself, does not render the due process involuntary confession rule applicable to non-Americans abroad. Section B introduces the “substantial connections” test used by the Supreme Court to determine the applicability of certain constitutional rights to non-Americans abroad, and concludes that this test similarly does not extend due process protections to such suspects. Section C establishes that constitutional rights that can be categorized as “trial rights” invariably protect non-Americans abroad, while “freestanding civil liberties,” as I term them, do not. This section then posits that the due process involuntary confession rule is properly categorized as a freestanding civil liberty, and therefore does not apply to non-Americans abroad. Section D argues that the only constitutional protection available to non-Americans abroad during interrogations by American law enforcement officials is the undefined privilege against compulsory self-incrimination because the privilege is, in fact, a “trial right.” Part III then explores the historical underpinnings, text, policies, and Supreme Court interpretations of the privilege outside of the police interrogation context in an effort to formulate a conception of a “compelled” confession that comports with each element.

A. THE DUR PROCESS CLAUSE’S REFERENCE TO “ANY PERSON” DOES NOT, BY ITSELF, RENDER THE DUE PROCESS INVOLUNTARY CONFESSION RULE APPLICABLE TO NON-AMERICANS ABROAD

The starting point for any question requiring an interpretation of a provision in the Bill of Rights is the text itself. The Due Process Clause of the Fifth Amendment, from which the involuntary confession rule is derived, provides that “[n]o person . . . shall be deprived of life, liberty, or property, without due process of law.”92 One might reasonably argue that the seemingly all-inclusive term “person” renders the Due Process clause universally applicable to all human beings, wherever they may be located, in their dealings with the United States government. Under such a construction, it would protect non-Americans abroad from conduct by American officials that deprives them of any of the rights embodied in due process, including the right to be free from having involuntary confessions extracted from them. The Supreme Court, however, has not interpreted the term “person” in this manner.

The seminal case on the matter, Johnson v. Eisentrager involved twenty-one German citizens who had served in the German armed forces in China during World War TI, had been convicted by American military tribunals in China, and were serving their sentences in China under the control of American military authorities.94 They petitioned a federal court in the United States for a writ of habeas corpus on the grounds that their trial, conviction, and imprisonment had not comported with the Due Process Clause of the Fifth Amendment.95 After the United States District Court for the District of Columbia dismissed the petitions, the Court of Appeals reversed, holding that the Fifth Amendment’s broad language-referring to “person”-meant that its application was not limited to American citizens or to individuals located within the borders of the United States.96 In reversing, the Supreme Court flatly rejected this broad interpretation of the term “person,” stating simply that “[t]he Court of Appeals has cited no authority whatever for holding that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses.”97

Despite the apparent breadth of this holding, an argument could be made that Eisentrager was intended to be limited to its wartime facts. An important concern of the Court in deciding whether to extend the civil liberties contained in the Bill of Rights to wartime enemies seemed to be the potentially crippling effect such an extension would have on the ability of the United States to conduct warfare.98 The Court explored in detail the American tradition of vesting the power to handle citizens of enemy nations exclusively in the executive branch of government, and noted “[e]xecutive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security.”99 The Court held that “the nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy.”100 To vest nonresident alien enemies with the right to bring suit in the United States alleging violations of the Bill of Rights would “hamper the war effort and bring aid and comfort to the enemy.”101

Recent cases, however, suggest that Eisentrager should not be interpreted so narrowly. In the 1990 case United States v. Verdugo-Urquidez, the issue was whether the Fourth Amendment protects non-Americans abroad.102 In that case, agents of the Drug Enforcement Administration (DEA) arrested a Mexican citizen and transported him to the United States to stand trial for smuggling narcotics into the United States.103 Following his arrest, DEA agents searched the defendant’s home in Mexico without a warrant and found incriminating evidence therein.104 Prior to trial, the defendant moved to suppress this evidence on the ground that the DEA agents violated his Fourth Amendment rights by searching his home without a warrant.105 In holding that the Fourth Amendment does not protect non-Americans from unreasonable searches beyond the borders of the United States, the Supreme Court cited Eisentrager favorably, reiterating that the word “person” in the Fifth Amendment does not automatically render its protections applicable to non-Americans beyond the borders of the United States.106 The Court in Verdugo-Urquidez completely ignored the wartime setting of Eisentrager as a ground for distinguishing that case and expressed the holding of Eisentrager broadly as having emphatically “rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.”107

Furthermore, in those cases where the Supreme Court has held that the Due Process Clause of the Fifth Amendment protects certain non-Americans, it has been careful to limit its holding to non-Americans who were located within the territorial boundaries of the United States when the alleged due process violation occurred. For example, the Supreme Court stated in Mathews v. Diaz:108

There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.109

Likewise, when the Supreme Court has ruled that the Due Process Clause protects Americans located abroad, it has chosen its language carefully to limit its holding to American citizens only. In Reid v. Covert,110 the Supreme Court stated in this respect: “When the [United States] Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.”111

Thus, while the word “person” in the Fifth Amendment may at first glance suggest that the Due Process Clause applies to any human being located anywhere who is subjected to any form of state action by the United States government-including non-Americans abroad-Supreme Court interpretations of that term have undercut such an argument.112 Accordingly, the text of the Due Process Clause does not support the extraterritorial application of the involuntary confession rule to non-Americans.

B. THE NARROW “SUBSTANTIAL CONNECTIONS” TEST RENDERS THE DUE PROCESS INVOLUNTARY CONFESSION RULE INAPPLICABLE TO MOST NON-AMERICANS ABROAD

Although the Supreme Court has rejected the argument that the term “person” renders the Due Process Clause applicable to non-Americans abroad, the Court has not completely ruled out the possibility that such individuals could receive due process protections in some circumstances. In Eisentrager,113 the Court vaguely described a sliding scale in which protections in the Bill of Rights attach to aliens to the degree that they have peacefully and voluntarily associated themselves with the United States. In this respect, the Court noted that “[t]he alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society.”114 The Court suggested that the petitioners in Eisentrager were denied the protections of the Due Process Clause not just because they were non-Americans situated outside of the United States when the alleged constitutional violations occurred but also because, as German soldiers who had “remained in the service of the enemy,”115 they had no peaceful connection to America prior to their most recent encounter with the United States government.116

The Court expanded on this theme in Verdugo-Urquidez, ruling that the Fourth Amendment did not apply to a search of the defendant’s home.117 Central to the Court’s holding were the facts that the defendant was not an American citizen and that the search in question took place beyond the borders of the United States.118 But the Court suggested that these facts did not, by themselves, dispose of the defendant’s claim. Quoting the “ascending scale of rights” language from Eisentrager, the Court denied the defendant’s plea for Fourth Amendment protection not simply because he was an alien, but also because he “had no previous significant voluntary connection with the United States.”119

Thus, in Eisentrager and Verdugo-Urquidez, the Supreme Court set forth a test, sometimes called the “ascending scale of rights test”120 or the “substantial connections”121 test, by which aliens are granted certain constitutional protections to the extent they have voluntarily connected themselves with the United States prior to the encounter with the United States government for which they seek constitutional protection. The Supreme Court has yet to clarify, however, what sort of “significant voluntary connection” with the United States would suffice to trigger the protections in the Bill of Rights. Indeed, the Court expressly declined to address the issue in Verdugo-Urquidez.122 The small number of lower courts addressing the issue in the wake of Eisentrager and Verdugo-Urquidez, however, have not read this language broadly. In one case, for example, a court ruled that numerous prior business trips and vacations to the United States were insufficient.123 In another case a different court ruled that a history of regular trips to America to visit relatives did not meet the “substantial connections” test.124

Thus, only in rare cases would the “substantial connections” test protect non-Americans during interrogations by American law enforcement officials abroad. Accordingly, this test does not generally support the extraterritorial application of the due process involuntary confession rule to non-Americans.125

C. PROVISIONS IN THE BILL OF RIGHTS THAT HAVE BEEN INTERPRETED AS “TRIAL RIGHTS” INVARIABLY PROTECT NON-AMERICANS ABROAD, WHILE “FREESTANDING CIVIL LIBERTIES” DO NOT

Provisions in the Bill of Rights that have been interpreted as “trial rights” protect all defendants, regardless of alienage, during their trials in the United States.126 This is, at first glance, an unremarkable statement. When an alien defendant is on trial in a federal courtroom in the United States, no one would dispute the fact that he is afforded the right to an attorney, the right to call witnesses in his defense and all of the other constitutional rights that are synonymous in this country with the right to a fair trial.127 But the next step is key: When the vindication of a trial right requires the court to make findings of fact regarding police investigative conduct that took place prior to trial, the location where that police conduct took place becomes legally irrelevant. Stated differently, constitutional rights classified as trial rights can be backward-looking and, as a result, can attach at trial and then extend their protections retroactively to the pretrial investigation stage. When this occurs, it cloaks non-Americans abroad with constitutional protection after the fact, even though they were located outside of the United States and thus were not initially protected by the Bill of Rights at the time that the alleged constitutional violation occurred.128

Perhaps a hypothetical can best illuminate this point. To explore the hypothetical, a few terms must be denned as they are used in this Article. A “trial right” is a constitutional right that attaches only in the criminal trial setting. Its concern is to ensure a fair and accurate criminal trial process, or to further a trial-related policy. Thus, a violation of a trial right can occur only at trial. The other type of constitutional right is a “freestanding civil liberty.” A freestanding civil liberty is not concerned with ensuring fair and accurate trials; rather, it protects individuals generally from government overreaching in a variety of non-trial settings-from the private home to the public street corner. Accordingly, a freestanding civil liberty can be triggered or violated in situations outside of the criminal trial context. Now that these terms have been defined, we may proceed with the hypothetical.

Suppose that an FBI agent in Italy interrogates an Italian citizen who is suspected of running a website that allows the suspect to traffic child pornography into the United States. The FBI agent deprives the suspect of food and sleep for seventy-two hours, until the suspect breaks down and confesses involuntarily. The suspect is then brought to the United States and charged with various child pornography violations. At trial, the involuntary confession is admitted into evidence and the suspect is convicted. On appeal, the crucial question for purposes of this Article is whether the due process involuntary confession rule grants a freestanding civil liberty, which would mean that the due process violation occurred in Italy at the time the coercive interrogation took place, or whether the due process involuntary confession rule grants a trial right, which would mean that the constitutional violation occurred later in the United States when the government introduced the involuntary confession into evidence at the suspect’s trial.

The answer to the above question determines whether or not the due process involuntary confession rule applies extraterritorially to non-Americans. The Bill of Rights protects non-Americans against constitutional deprivations that occur within the United States.129 Non-Americans are not protected by the Bill of Rights, however, when the alleged constitutional violation occurs outside of the United States, unless they satisfy the “substantial connections” test.130 But non-Americans are protected by constitutional “trial rights” at their trials in the United States, even when vindication of such rights requires courts to review the pretrial conduct of law enforcement officials in foreign countries.131 Because violations of freestanding civil liberties occur only at the time of the law enforcement officials’ alleged unlawful conduct, however, these rights do not protect non-Americans when the alleged violation occurs completely beyond the borders of the United States.132 Thus, as explored in more detail below, if the involuntary confession rule grants a freestanding civil liberty, it would afford the non-American defendant no protection in an American court under Verdugo-Urquidez unless the defendant satisfies the narrow “substantial connections” test; because the constitutional violation in the above hypothetical occurred solely in Italy.133 If the involuntary confession rule grants a trial right, however, it follows that the constitutional violation in the above hypothetical occurred solely at the defendant’s trial within the territorial boundaries of the United States when the government introduced the involuntary confession into evidence. Consequently, the suspect would have a right to exclude the confession, despite lack of American citizenship, pursuant to the line of cases previously discussed that extend constitutional trial rights to non-Americans.134

Before attempting to answer the aforementioned question, it is necessary first to explore an example of a trial right, and alternatively, an example of a freestanding civil liberty. This process will set the necessary parameters for properly categorizing the due process involuntary confession rule in a subsequent discussion.

1. The Privilege Against Compulsory Self-Incrimination Is An Example Of A Trial Right.

An example of a “trial right” is the Fifth Amendment’s privilege against self-incrimination. Using a strict interpretation of the text of the Fifth Amendment,135 the Supreme Court has held that the privilege against self-incrimination is violated only when defendants become witnesses against themselves at their criminal trials.136 Therefore, if a law enforcement officer used brute force and torture to extract a compelled confession from a suspect, the officer would not have violated the privilege against self-incrimination at the time of the confession because the suspect would not yet have testified at trial.137 If, however, the suspect were later prosecuted and the government introduced the involuntary confession into evidence, the suspect then would be considered a “witness against himself in a “criminal case,” and the Fifth Amendment would be violated at the time the confession was admitted.138

The distinction was first made clear in the line of federal cases involving governmental grants of immunity to witnesses. In Kastigar v. United States,139 for example, the petitioners were subpoenaed to testify as witnesses before a federal grand jury.140 The petitioners invoked the privilege against self-incrimination and refused to testify.141 In response, the government applied to the United States District Court for the Central District of California for an order pursuant to a federal statute that granted the petitioners immunity from prosecution.142 After the district court granted immunity to the petitioners, however, they still refused to testify and were held in contempt and detained until they agreed to do so.143 In discussing the constitutionality of statutes that authorize the government to immunize witnesses and then compel their testimony, the Supreme Court made clear that the “sole concern” of the privilege was not the forcible extraction of statements; rather, the privilege only prohibits such statements from being introduced at a trial or similar proceeding to inflict criminal penalties upon the person who was “compelled” to speak.144 Once witnesses have been granted immunity, ensuring that their statements will not be introduced into evidence against them at a criminal trial, the privilege against self-incrimination no longer prohibits the government from forcibly extracting incriminating statements from them.145 The Supreme Court concluded in Kastigar that when witnesses are granted immunity and still refuse to testify, the government may forcibly compel their testimony-without violating their Fifth Amendment rights-by detaining them until they agree to take the witness stand.146

This distinction is derived not only from the pivotal word “witness” and phrase “criminal case” in the text of the privilege, but because one of the policies behind the privilege is to further the truth-seeking function of the criminal trial process, as “compelled” confessions are likely to be unreliable and might lead juries in many cases to convict innocent defendants. As the Supreme Court explained in the 1993 case Withrow v. Williams:147

Nor does the Fifth Amendment trial right protected by [the privilege] serve some value necessarily divorced from the correct ascertainment of guilt. A system of criminal law enforcement which comes to depend on the confession will, in the long run, be less reliable and more subject to abuses than a system relying on independent investigation. By bracing against the possibility of unreliable statements . . . [the privilege] serves to guard against the use of unreliable statements at trial.148

Thus, the privilege is a trial right because as a matter of text and policy it is concerned only with the government’s “use” at trial of compelled statements.149 As the Supreme Court said in Verdugo-Urquidez when contrasting the privilege with the Fourth Amendment: “The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial” when the coerced statements are introduced into evidence against the defendant.150

The Supreme Court recently reaffirmed this principle in the case of Chavez v. Martinez.151 In Chavez, the petitioner, Martinez, brought a civil suit for monetary damages under Title 42 U.S.C. Section 1983(152) against a police sergeant.153 Martinez argued that his rights under the privilege against compulsory self-incrimination had been violated at the moment that the sergeant in question subjected him to a coercive interrogation.154 Martinez made this claim despite the fact that, following the interrogation, he was never charged with having committed a crime.155 The Supreme Court rejected Martinez’ claim, stating: “Martinez was never made to be a ‘witness’ against himself in violation of the Fifth Amendment’s Self-Incrimination Clause because his statements were never admitted as testimony against him in a criminal case.”156 The Chavez decision thus further solidifies the notion that the privilege against compulsory self-incrimination is a “trial right.”157

2. The Fourth Amendment Is An Example Of A Freestanding Civil Liberty

The Fourth Amendment, in contrast to the privilege against compulsory self-incrimination, is a freestanding civil liberty. This is because it was designed to protect privacy interests outside of the trial setting, such as in a private home, and not as a rule of procedure designed to monitor and further the truth-seeking function and fairness of criminal trials. In Verdugo-Urquidez, for example, DEA agents seized evidence from the alien-defendant’s Mexican home without a warrant and later introduced that evidence at trial.158 The DEA’s failure to follow the requirements of the Fourth Amendment in that case, however, did not render the evidence unreliable, thereby casting doubt on the fairness of the trial or the validity of the defendant’s conviction. The evidence (drug-dealing notes and ledgers) did not suddenly change in form or otherwise become less probative of the fact that the defendant was a drug dealer simply because the DEA seized it without a warrant. As the Supreme Court has noted in this respect, “The protections of the Fourth Amendment are of a wholly different order [than the privilege against self-incrimination], and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial …. ‘[T]here is no likelihood of unreliability or coercion present in a search-and-seizure case.'”159 The Court has further elaborated this point, stating that the Fourth Amendment and its exclusionary rule cannot be thought “to enhance the soundness of the criminal process by improving the reliability of evidence introduced at trial. Quite the contrary . . . the evidence excluded [under the Fourth Amendment’s exclusionary rule] is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant.”160

Because of the policies supporting it, a violation of the Fourth Amendment is seen as occurring at the moment the unlawful search and seizure takes place-not, as with the privilege, at trial when the evidence seized is introduced. The alien-defendant in Verdugo-Urquidez, for example, asserted that he could claim the protection of the Fourth Amendment because he was present in the United States during his trial and the government was attempting to introduce evidence obtained during a warrantless search at his trial.161 The defendant’s argument would undoubtedly have had merit if the Fourth Amendment were considered a trial right that is violated when the government introduces evidence seized in violation of its dictates.162 The Supreme Court, however, disagreed with the defendant’s characterization of Fourth Amendment protections, and in the process cast the Fourth Amendment as a freestanding civil liberty.163 Based on the policies underlying the Fourth Amendment, the Court held that a violation is “fully accomplished” at the time of the unlawful search in question-not when the evidence is introduced later at trial.164 The defendant’s home was located in Mexico, and as a result the government conduct that was alleged to be unconstitutional occurred solely outside of the United States.165 Because the defendant was a non-American who could claim only an alleged violation of the Constitution outside of the United States, he had no Fourth Amendment protection.166

Because a violation of the Fourth Amendment is fully accomplished at the time of the search or seizure, the introduction at trial of evidence seized in violation of the Fourth Amendment does not constitute a second, independent violation. Instead, evidence seized in violation of the Fourth Amendment is excluded as a result of a judicially created exclusionary rule, similar to a common law rule of evidence, which is designed to penalize police officers and to deter them from violating the Fourth Amendment in the future. As the Supreme Court held in United States v. Leon:167

The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure works no new Fourth Amendment wrong. The wrong condemned by the Amendment is fully accomplished by the unlawful search or seizure itself; and the exclusionary rule is neither intended nor able to cure the invasion of the defendant’s rights which he has already suffered. The [Fourth Amendment exclusionary] rule thus operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.168

Thus, the Fourth Amendment and the privilege against compulsory self-incrimination are different in the sense that a Fourth Amendment violation occurs, if at all, when the “unreasonable” search takes place. The Fifth Amendment’s privilege, on the other hand, can be violated only in a courtroom setting when the defendant’s coerced confession is introduced and he becomes a “witness” against himself.169 The privilege, therefore, contains its own constitutionally based exclusionary rule, as its only function is to exclude evidence at criminal trials.170

Once it is understood that a violation of the Fifth Amendment’s privilege against compulsory self-incrimination does not occur until trial, the privilege and other “trial rights” in the Constitution can be distinguished from the constitutional rights at stake in cases in which the Supreme Court adopted the “substantial connections” approach. In Verdugo-Urquidez and Eisentrager for example, the alleged constitutional violations occurred outside of the United States.171 In fact, in connection with the privilege and other constitutional trial rights, it becomes apparent that the location of the trial, not the location of the interrogation, is the dispositive factor. If a non-American who confessed abroad is later tried in the United States, the question in such a case is not whether the privilege applies abroad, but whether non-Americans located within the boundaries of the United States, for the purpose of attending their criminal trial, are protected by the privilege. Undoubtedly, they are.172

The crucial question for purposes of this Article, therefore, is whether the due process involuntary confession rule is a trial right like the privilege against compulsory self-incrimination, or a freestanding civil liberty like the Fourth Amendment’s protection from unreasonable searches and seizures. If it is a trial right, then non-Americans on trial in the United States will have the right to exclude involuntary confessions regardless of the location where the pretrial confession was made. If the due process involuntary confession rule is considered a freestanding civil liberty, however, then non-Americans will be unsuccessful in excluding involuntary confessions made to FBI agents beyond the borders of the United States.

D. THE DUE PROCESS INVOLUNTARY CONFESSION RULE IS A FREESTANDING CIVIL LIBERTY, AND THEREFORE DOES NOT APPLY TO NON-AMERICANS ABROAD UNLESS THEY SATISFY THE SUBSTANTIAL CONNECTIONS TEST

As the above discussion makes clear, a constitutional right can be categorized as either a trial right or a freestanding civil liberty by examining its text and the policies supporting the right. The privilege against compulsory self-incrimination is considered a trial right because it was designed to protect trial-related interests, and because the text demands that it is a trial right. The Fourth Amendment is a freestanding civil liberty because it was designed to protect privacy outside of the trial setting. Does the due process involuntary confession rule grant an individual a freestanding civil liberty to be free in any setting from the type of government pressure that yields involuntary confessions? Is the involuntary confession rule in essence a “roving” constitutional right, like the Fourth Amendment, designed to protect the right of suspects not to be bothered, harassed or tortured by the American government regardless of whether they are ultimately charged and brought to trial? Or does the due process involuntary confession rule solely grant individuals a trial right-the right not to be convicted at trial through the use of a confession obtained through coercive means? Is its prohibition on forceful and third-degree interrogation tactics simply designed to keep the government from “stacking the deck” so that it may obtain an unfair advantage at trial? Was it created to ensure a fair and reliable trial by keeping out confessions that, because they may have been wrung out of innocent defendants through the use of torture, are considered patently unreliable and likely to lead juries to convict innocent defendants?

1. The Due Process Involuntary Confession Rule Historically Was Interpreted as Primarily Granting a Trial Right

The due process involuntary confession rule has been a chameleon, as it has been interpreted to support different policies as it has evolved.173 Undoubtedly, when it was first introduced in the 1936 case of Brown v. Mississippi,174 it was seen by the Court as a trial right. In that case, the defendants were convicted on the basis of confessions that had been obtained through torture.175 In reversing the convictions, the Court held that the “use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.”176 The Court elaborated that ‘”[cjoercing the supposed state’s criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries.'”177 The due process violation in Brown occurred at trial, not at the time of the interrogations, when the state authorities “contrive[d] a conviction through the pretense of a trial, which in truth is ‘but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of [confessions] known to be perjured'” and unreliable.178 The Court reaffirmed this concept a few years later in the 1941 case of Lisenba v. California,119 stating:

As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial. Such unfairness exists when a coerced confession is used as a means of obtaining a verdict of guilt. We have so held in every instance in which we have set aside for want of due process a conviction based on such a confession. 180

Through the ensuing decades, the Court’s interpretation was consistent. In the 1945 case of Malinski v. New York,181 for example, the Court stated that it is the “introduction of an involuntary confession” into evidence that violates the Due Process Clause.182 The Court further commented: “If all the attendant circumstances indicate that the confession was coerced or compelled, it may not be sed to convict a defendant. And if it is introduced at trial, the judgment” will be reversed.183 A decade later in Ley m v. Denno,184 the Court again instructed that it is the “use in a state criminal trial of a defendant’s confession obtained by coercion” that is “forbidden” by the Due Process Clause.185 The notion that it was the “use” at trial of an involuntary confession that violates the Due Process Clause was a direct result of the policies that were seen to underlie the involuntary confession rule. Indeed, woven throughout the cases in this era was a strong emphasis on trial-related policy concerns, including the need to ensure the reliability of criminal trials, maintain a sense of fairness in the criminal trial process, and maintain judicial integrity.186

Two cases decided during the “trial right era” deserve particular attention, as they help set the parameters for the later discussion of Colorado v. Connelly187 in Part II.D.2 below.188 The first case, Blackburn v. Alabama,189 involved a defendant, Blackburn, who was later found to be insane at the time of his pretrial confession.190 Testimony in the record revealed that, although the interrogating officer knew that Blackburn had been a patient in a mental hospital in the past, Blackburn had appeared “clear-eyed” and “sensible” during his interrogation.191 The interrogation was conducted in a small room, over a period of eight or nine hours, with as many as three officers in the room at any given time.192 No threats had been made to Blackburn to obtain his confession, and no torture or “rack and screw” interrogation techniques were employed. In reversing Blackburn’s conviction, the Court elaborated on the policies behind the due process involuntary confession rule, which center primarily on the need to maintain the fairness and integrity of trials and our criminal justice system generally by prohibiting the use or introduction of involuntary confessions:

It is . . . established that the Fourteenth Amendment forbids fundamental unfairness in the use of evidence whether true or false. Consequently, we have rejected the argument that introduction of an involuntary confession is immaterial where other evidence establishes guilt or corroborates the confession. As important as it is that persons who have committed crimes be convicted, there are considerations which transcend the question of guilt or innocence. Thus, in cases involving involuntary confessions, this Court enforces 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. This insistence upon putting the government to the task of proving guilt by means other than inquisition was engendered by historical abuses which are quite familiar.

But neither the likelihood that the confession is untrue nor the preservation of the individual’s freedom of will is the sole interest at stake. As we said just last term, the abhorrence of society to the use of involuntary confessions . . . also turns on the deep-rooted 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.193

The Court then set forth its specific rationale for reversing Blackburn’s conviction, focusing primarily on the fact that the use of a confession at trial that was made involuntarily due to mental illness offends the fair trial and judicial integrity policies underpinning the due process involuntary confession rule:

In the case at bar, the evidence indisputably establishes the strongest probability that Blackburn was insane and incompetent at the time he allegedly confessed. Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane; and this judgment can without difficulty be articulated in terms of the unreliability of the confession, the lack of rational choice of the accused, or simply a strong conviction that our system of law enforcement should not operate so as to take advantage of a person in this fashion. And when the other pertinent circumstances are considered-the eight- to nine-hour sustained interrogation in a tiny room which was upon occasion literally filled with police officers; the absence of Blackburn’s friends, relatives, or legal counsel; the composition of the confession by the Deputy Sheriff rather than by Blackburn-the chances of the confession’s having been the product of a rational intellect and a free will become even more remote and the denial of due process even more egregious.194

The second case, Townsend v. Sain,195 involved a defendant, Townsend, who was questioned by the police while under the influence of the drug hyoscine, which was alleged by the defendant to be a truth serum.196 The drug had been given to Townsend to alleviate severe symptoms he was experiencing at the time of the interrogation caused by heroin withdrawal.197 The police officers who questioned Townsend claimed that they were unaware at the time of hyoscine’s properties as a truth serum.198 Townsend argued that, even though his confession was a product of the truth serum and not of any improper physical coercion by the police, his confession should have been suppressed pursuant to the due process involuntary confession rule.199 The Supreme Court agreed. In remanding the case for further proceedings, the Court ruled that the Due Process Clause mandates the exclusion of an involuntary confession regardless of whether that confession was caused by “physical intimidation or psychological pressure” by the police or by an external source such as a truth serum, stating:

It is difficult to imagine a situation in which a confession would be less the product of a free intellect, less voluntary, than when brought about by a drug having the effect of a truth serum. It is not significant that the drug may have been administered and the questions asked by persons unfamiliar with hyoscine’s properties as a truth serum, if these properties exist. Any questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible. The Court has usually so stated the test: If the confession which petitioner made . . . was in fact involuntary, the conviction cannot stand . . . . And in Blackburn v. Alabama, we held irrelevant the absence of evidence of improper purpose on the part of the questioning officers. There the evidence indicated that the interrogating officers thought the defendant sane when he confessed, but we judged the confession inadmissible because the probability was that the defendant was in fact insane at the time.200

Blackburn and Townsend demonstrate the Court’s view during this era that it was not the employment of coercive interrogation techniques by itself-devoid of any use at trial of the resulting confession-that violated the Due Process Clause. Rather, the violation occurred when a criminal trial was infected by the introduction of a tainted, coerced confession.201 Indeed, as late as 1978 in Mincey v. Arizona,202 the Supreme Court continued to view the due process involuntary confession rule primarily as granting a trial right when it stated that the “use” of an involuntary confession at trial merely for impeachment purposes-even when there is overwhelming other evidence of the defendant’s guilt-tarnishes the proceedings in such a way as to violate the Due Process Clause.203

If one were to have asked in 1978 whether the due process involuntary confession rule would apply to the Italian defendant in the preceding hypothetical, the answer would have been in the affirmative.204 Because the involuntary confession rule was seen as granting a trial right that is violated when an involuntary confession is introduced at trial, any violation of the Due Process Clause would have happened at trial in the United States when the involuntary confession was introduced, and not at the time of the pretrial interrogation in Italy.205 Accordingly, the reasoning in the Mathews v. Diaz line of cases would have controlled the matter,206 and the Italian defendant at his trial in the United States would have successfully suppressed the involuntary confession extracted by the FBI in Italy.207

2. The Supreme Court’s Decision in Colorado v. Connelly Recast the Due Process Involuntary Confession Rule as a Freestanding Civil Liberty

In the 1986 case of Colorado v. Connelly,208 the Court fundamentally altered the nature of the due process involuntary confession rule and reinvented the doctrine as a freestanding civil liberty. In that case, the defendant, Connelly, walked up to a police officer on the street and “stated that he had murdered someone and wanted to talk about it.”209 The police officer advised Connelly of his Miranda rights, which Connelly promptly waived.210 The officer then asked Connelly a few questions, Connelly’s replies to which revealed he had been a patient in several mental hospitals.211 A second officer arrived on the scene and asked Connelly “what he had on his mind.”212 Connelly then confessed in detail to a murder.213 Prior to trial, Connelly moved to suppress the confession under Blackburn and Townsend on the ground that his confession was involuntary.214 In support of his motion, a psychiatrist testified at the pretrial suppression hearing that, due to chronic schizophrenia, Connelly was in a psychotic state at the time of his confession and was following the “voice of God.”215 This voice demanded that he either confess to the killing or commit suicide.216 Connelly had “reluctantly” followed the voice in confessing to the police officers.217

The trial court, state appellate court and then the Supreme Court of Colorado all agreed that Connelly’s involuntary confession had to be suppressed.218 Based on a straightforward reading of Townsend and Blackburn, the Colorado courts ruled that the introduction into evidence of such a patently unreliable involuntary confession would taint the trial and constitute the requisite “state action” that would violate the Due Process Clause.219

On appeal, the U.S. Supreme Court did not dispute that Connelly’s confession had been made involuntarily or that his confession was unreliable.220 The Court nonetheless reversed and remanded the case for trial, holding that the introduction into evidence of Connelly’s involuntary confession on remand would not violate the Due Process Clause.221 What is particularly striking about the Connelly decision is how the Court described the policy underlying the due process involuntary confession rule and the “triggering act” that violates the Due Process Clause. With respect to policy, the Court relieved the involuntary confession rule of its previous role of protecting against admission of unreliable and unfair evidence at trials, stating simply: “A [confession] rendered by one in the condition of [Connelly] might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of [the state of Colorado], and not by the Due Process Clause of the Fourteenth Amendment.”222 This holding is directly at odds with a long line of the Court’s due process confession cases, all of which had repeatedly admonished that one of the primary functions of the involuntary confession rule is to protect against the admission of unreliable confessions.223

But the Connelly Court went even further. It not only eviscerated the trialrelated policy rationale on which the due process voluntariness rule had been grounded for fifty years, but it also expressly refocused the rule as being aimed instead at preventing abuses by the police in the pretrial interrogation context. The Court asserted that the purpose of the Due Process Clause in relation to confessions is to prohibit ‘”certain interrogation techniques . . . [that are] so offensive to a civilized system of justice that they must be condemned.'”224 The Court then characterized its previous fifty years of due process confession cases as having been primarily concerned with controlling “coercive police conduct” during interrogations.225 For example, the Court insisted that the original due process confession case, Brown v. Mississippi, and all the due process cases that followed, “focused on the crucial element of police overreaching.”226 This statement is, of course, disingenuous because the pre-Connelly Court viewed the Due Process Clause as being concerned primarily with the “use” of involuntary confessions at trial because of the corrupting effect they have on the integrity of the trial process.227

Taking its departure from precedent one step further, the Connelly Court suggested that involuntary confessions are excluded from evidence not because the act of admitting such confessions violates due process, but rather because the exclusionary rule associated with the voluntariness requirement is a judicially-created punitive measure to deter police officers from engaging in “coercive police activity” in future cases.228 In so stating, the Court necessarily characterized “coercive police activity” as the “real” due process violation-the act that triggers (and violates) the due process involuntary confession rule.229

A few statements by the Court in this respect are particularly instructive. For instance, the Court stated: “[S]uppressing [Connelly’s] statements would serve absolutely no purpose in enforcing constitutional guarantees. The purpose of excluding evidence seized in violation of the Constitution is to substantially deter future violations of the Constitution.”230 This assertion reflects a belief that the “constitutional guarantee” granted by the due process involuntary confession rule is not the right to exclude involuntary confessions at trial, but rather the right to be free from police coercion generally. Involuntary confessions are excluded so that other suspects in the future will not be subjected to the “true” constitutional concern-police coercion. The use of the word “future” in the statement above further reflects an understanding that the due process voluntariness rule is violated not at trial, but in the pretrial interrogation stage when the “coercive police activity” takes place.

Also enlightening is the fact that the Court cited its decision in United States v. Leon231 for its discussion of the exclusionary rule associated with the due process voluntariness rule.232 Leon made clear that evidence seized in violation of the Fourth Amendment is excluded pursuant to a judicially created rule, and not because the Constitution requires it.233 Thus, Leon helped establish the Fourth Amendment as a freestanding civil liberty. The Court’s linkage of the due process involuntary confession rule to the Fourth Amendment in this respect is significant.

Given Connelly’s shift in policy focus from the trial stage to the pretrial interrogation context, and its linkage of the due process exclusionary rule to the Fourth Amendment and Leon, it is not surprising that the Connelly Court held that the “use” of an involuntary confession, by itself, does not violate the Due Process Clause.234 Indeed, the lower courts in Colorado had all found the requisite “state action” triggering the Due Process Clause to be the prosecutor’s “use” of Connelly’s involuntary confession.235 This view was consistent with the Court’s earlier due process jurisprudence, particularly Blackburn and Townsend, which together had stood for the proposition that even where there is no improper police conduct, the introduction of a confession that is involuntary for any reason-whether because of a “truth serum” or mental illness-violates the due process involuntary confession rule.236 Consistent with its newfound interpretation of the rule as serving a pretrial rather than a trial function, however, the Connelly Court expressly rejected the idea that the mere “use” of an involuntary confession at trial constitutes the requisite state action that triggers and violates the Due Process Clause.237

Since Connelly the due process involuntary confession rule functions, like the Fourth Amendment, to prevent abuses by the police at the pretrial investigation stage regardless of the setting. It no longer functions, like the privilege against compulsory self-incrimination, only in the trial setting by blocking the introduction of unreliable, coerced confessions. After Connelly, therefore, involuntary confessions are excluded from evidence not because the Constitution requires it, but because, as with evidence seized in violation of the Fourth Amendment, a judicially created rule designed to deter police officers from committing future constitutional violations requires it. After Connelly, the “use” of an involuntary confession at trial does not violate the Constitution, just as the “use” of evidence seized in violation of the Fourth Amendment does not violate the Constitution. Finally, after Connelly, a violation of the due process involuntary confession rule is “fully accomplished” at the time of the unlawful interrogation, just as violations of the Fourth Amendment are fully accomplished at the time of the unlawful search or seizure. In other words, the Court in Connelly converted the due process involuntary confession rule from a trial right to a freestanding civil liberty.238

Although no court has yet directly addressed the effect of Connelly on the extraterritorial application of the due process involuntary confession rule,239 Connelly’s impact has been recognized by several lower federal courts in the related area of civil liability of the police for unlawful interrogations. Cases occasionally arise in which the police coerce a confession from a suspect, but then decline to bring charges against that suspect. This occurs in some cases because the police eventually realize they had initially targeted the wrong suspect and obtained a confession from him only because they applied undue pressure during the interrogation. The suspect then files a civil suit citing the rule in Bivens240 or under Title 42, United States Code, Section 1983,241 alleging that the police violated his constitutional right under the due process involuntary confession rule to be free from coercive police activity. These cases require a court to make the same finding required when determining the extraterritorial application of the rule to non-Americans: whether a violation of the rule is “fully accomplished” at the time of the interrogation or whether the violation occurs later when the confession is introduced into evidence. If the violation occurs at the time of trial and not at the time of the interrogation, then the civil suits of these plaintiffs must fail-no constitutional deprivation took place against them because they were never charged and tried.

Analyzing the policies behind the rule, several lower courts have held that a violation of the due process involuntary confession rule is fully accomplished at the time of the coercive interrogation, and that, as with the Fourth Amendment, involuntary confessions are excluded as a deterrent measure pursuant to a rule of judicial-rather than constitutional-origin. For example, in Weaver v. Brenner,242 the Second Circuit held that civil damages could be awarded even where there had been no “use” of an involuntary confession, because “the constitutional violation [of the due process involuntary confession rule] is complete when the offending behavior occurs, and the refusal to admit at trial statements made as a result of coercion is merely a corrective way in which a court penalizes conduct that violates the Constitution.”243 Similarly, in Cooper v. Dupnik the Ninth Circuit ruled that the “due process violation caused by coercive behavior of law-enforcement officers in pursuit of a confession is complete with the coercive behavior itself. . . . All a court does in a judicial context is apply the corrective where due process already has been denied.”244

The Supreme Court’s recent decision in Chavez v. Martinez245 seems to support the position taken by the Second Circuit in Weaver and the Ninth Circuit in Cooper. As stated supra, Chavez involved a Section 1983 suit for monetary damages against a police sergeant where the statements elicited by the sergeant through coercion were never used against the suspect in a criminal trial.246 The suspect, Martinez, brought suit under both the privilege against compulsory self-incrimination and the Due Process Clause. While the Court rejected Martinez’ claims under the privilege against compulsory self-incrimination, holding that the privilege is a trial right,247 a majority of the Court differentiated Martinez’ claim based on the Due Process Clause.248 Indeed, in a section of his opinion that consisted of a single sentence, Justice Souter, writing for the Court on this issue, remanded the case for Martinez to pursue his due process claim.249 The Court left it to the lower courts to determine “the scope and merits of any such [due process] action that may be found open to [Martinez]” based on the coercive interrogation.250 Thus, while certainly not dispositive of the issue, the distinction made by the Court in Chavez tends to support the notion that the due process involuntary confession rule is a freestanding civil liberty, and that a violation of the rule is fully accomplished at the time of the coercive interrogation.

These courts are correct that, after Connelly, the due process involuntary confession rule mirrors the Fourth Amendment and that a violation of the rule is fully accomplished at the time of the coercive interrogation. Accordingly, if one were to ask post-Connelly whether the Italian suspect in the previously posed hypothetical could suppress his involuntary confession at trial in the United States, the answer would be no. Because the due process violation in his case was “fully accomplished” in Italy and no separate constitutional deprivation occurred by the mere introduction of his involuntary confession at trial, his motion to suppress on due process grounds would not be successful under Verdugo-Urquidez.251

E. THE DEFAULT TEST FOR NON-AMERICANS ABROAD IS THE PROHIBITION OF “COMPELLED” CONFESSIONS CONTAINED IN THE PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION

As previously explored in detail, there is a two-step process for the admissibility of confessions within the territorial boundaries of the United States.232 I have asserted in a previous article that the first step, the Miranda doctrine, does not strictly apply to non-Americans abroad.253 As demonstrated, the second step or default rule in the United States-the due process involuntary confession rule-also does not apply to non-Americans abroad.254 But within the United States a third confession rule has lurked in the background, overshadowed by the due process involuntary confession rule, remaining largely unexplored and undefined.255 This rule is the privilege against compulsory self-incrimination.256 Stated simply, the privilege and its ban on “compelled” confessions applies to non-Americans abroad. The Italian suspect in the hypothetical would not be successful in suppressing his coerced confession on the grounds that he was not Mirandized, or that his confession was involuntary in violation of the due process involuntary confession rule. But his argument that introduction of the confession would violate the privilege would be meritorious because the privilege is a “trial right,” the violation of which takes place within the United States when a “compelled” confession is introduced.257 Although Connelly converted the due process involuntary confession rule from a trial right to a freestanding civil liberty, the privilege’s position as a trial right has remained intact, and is unlikely to change in the future.258 Unfortunately, the Court’s preference for the due process involuntary confession rule through the years has shielded the privilege from being examined thoroughly in the interrogation context, and no clear definition of a “compelled” confession exists at this time. Part III looks at the origins, text, policies and precedents relating to the privilege in an attempt to shed light on the precise meaning of “compulsion.”

III. WHAT IS A “COMPELLED CONFESSION”?: THE “OBJECTIVELY IDENTIFIABLE PENALTY” TEST

Although the Court has not given clear guidance on the meaning of “compulsion” in the police interrogation context, it has defined this term clearly in the context of formal proceedings, such as trials or Congressional hearings. section A explores the cases in this area, which stand for the principle that any government conduct that imposes “objectively identifiable penalties” on the refusal to speak, or to provoke statements, constitutes compulsion in violation of the privilege. Section B posits that any formulation of the term “compulsion” in the interrogation context must be informed by this standard. This Section therefore proposes the “objectively identifiable penalty” test as the test for compulsion in the police interrogation context. The Section then critiques alternative tests offered to date by other scholars. This analysis demonstrates that, in contrast to tests proposed by other scholars, the “objectively identifiable penalty” test is consistent with both the text and history of the privilege. In addition, the “objectively identifiable penalty” test proposed herein is the only test proposed thus far that is consistent with current Supreme Court precedent. Section c then discusses how the “objectively identifiable penalty” test would operate in the police interrogation context. The Article concludes by asserting that this test should be used to determine the admissibility in American courts of confessions taken by the FBI from non-Americans abroad.

A. THE SUPREME COURT HAS INTERPRETED THE PRIVILEGE IN THE FORMAL SETTING AS REQUIRING AN OBJECTIVE TEST THAT PROHIBITS THE GOVERNMENT’S IMPOSITION OF “PENALTIES” IN RESPONSE TO SILENCE OR TO PROVOKE SPEECH

The Supreme Court has created a clear and well-developed jurisprudence regarding the meaning of “compulsion” in formal proceedings such as trials. In Griffin v. California,259 for example, the defendant was charged with murder in the first degree.260 At his trial, the defendant invoked his right under the privilege against compulsory self-incrimination not to testify in his own defense.261 In closing arguments to the jury, the prosecutor commented on the defendant’s failure to speak on his own behalf, and asserted to the jury that it should draw an adverse inference against him for that reason.262 The judge likewise instructed the jury that the defendant had a constitutional right not to testify, but it was free to draw an unfavorable inference from his failure to do so.263 The jury convicted.264

On appeal, the Supreme Court held that both the prosecutor’s comment and the trial judge’s instructions to the jury constituted “compulsion” in violation of the privilege.265 The Court reasoned that these acts imposed a “penalty” on the defendant for remaining silent.266 The prosecutor’s and trial judge’s comments were considered penalties because they arguably increased the chances of a conviction. In this respect, the Court stated:

[The] comment on the refusal to testify . . . is a penalty imposed by the courts for exercising a constitutional privilege, which the Fifth Amendment outlaws. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused’s knowledge is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.267

In Gardner v. B rode rick,268 a police officer was fired by the state for refusing to testify before a grand jury investigating corruption in his department. The Court held that this termination violated the privilege because it imposed a “penalty of the loss of employment.”269 Similarly, in Garrity v. New Jersey,270 several police officers made self-incriminating statements at a state ticket-fixing inquiry.271 Their statements were later used against them when they were prosecuted for participating in a conspiracy to cover up the ticket-fixing scheme.272 Prior to testifying at the inquiry the officers had been told that, pursuant to a New Jersey statute,273 they would lose their jobs if they did not testify.274 The Court held that the imposition of this “penalty” rendered their statements “compelled” in violation of the privilege, adding that the privilege is a right of which the exercise “may not [be] condition[ed] on the exaction of a price.”275 The Court applied this principle again in Lefkowitz v. Turley,276 where two architects who worked on occasion as independent contractors for the state were barred from receiving future state contracts because they invoked the privilege before a state grand jury investigating corruption in the public contracting industry.277 The Court viewed such government conduct as “compulsion” because it imposed sanctions on the exercise of the right to remain silent.278 This line of cases was expressly reaffirmed as recently as 1999 in Mitchell v. United States,279 when the Court held that the defendant’s silence at sentencing could not be used to justify the imposition of a “penalty” by the trial court in the form of an increase in her sentence.280

Two points concerning the Court’s interpretation of “compulsion” in the formal setting are noteworthy. First, these cases make clear that the test for compulsion is objective.281 In none of these cases did the Court apply a subjective “totality of circumstances” test, such as that associated with the due process involuntary confession rule,282 to determine if compulsion was present.283 There was no inquiry into the state of mind of the defendant or whether the defendant in question actually felt compulsion. Indeed, in Garrity, the Court ignored the facts (which Justice Harlan noted in his dissent) that, at the inquiry, “all of the officers were advised they had a right to remain silent, three of the officers were represented by counsel, a fourth officer had decided that counsel was not necessary, the interrogation took place in familiar surroundings, and the interrogation was both brief and civilized.”284

Second, the privilege was seen in these “formal setting” cases to prohibit the government’s imposition of “objectively identifiable penalties” in response to silence or to provoke speech,285 regardless of the severity of the penalty.286 By “identifiable,” I mean that in each of these cases, the penalty could be identified and articulated from the record as an actual and concrete penalty: a comment that increased the chance of a conviction, the loss of a job, the loss of future state contracts, etc. By “objectively,” I mean simply that it was not necessary that the identifiable penalty was actually felt by the speaker. For example, the loss of future state contracts in Turley was considered a penalty regardless of whether the architects intended to seek state contracts in the future, or whether the loss of such contracts would affect their income.287 The remainder of this Article will refer to such penalties as “objectively identifiable penalties.”

B. THE “OBJECTIVELY IDENTIFIABLE PENALTY TEST” SHOULD BE EXTENDED TO THE INTERROGATION CONTEXT, AS IT IS MORE HISTORICALLY, TEXTUALLY, AND DOCTRINALLY SOUND THAN THE ALTERNATIVE “CUSTODIAL INTERROGATION” OR “VOLUNTARINESS” TESTS

This Article proffers that a correct interpretation of “compelled” in the interrogation setting must be reconciled with how the Court has interpreted “compelled” in the formal setting. The privilege against compulsory self-incrimination purports to establish a single standard. Without an adequate legal justification, it would be strange, if not doctrinally unsound, to interpret a certain government act to constitute “compulsion” in some scenarios, but not in others. Under this view, police officers would be prohibited from imposing “objectively identifiable penalties” on suspects in any setting and in any form in response to silence or to provoke speech. This test will be developed in more detail in Section c.

The idea that the “formal setting” cases should be used to determine the meaning of compulsion in the interrogation context is not a novel concept. Indeed, two notable Fifth Amendment scholars, Professors Stephen Schulhofer and Lawrence Herman, have argued variations of the same.288 Professor Schulhofer argues, for example, that the “formal setting” line of cases supports the Court’s holding in Miranda that custodial interrogation, by itself, equates with compulsion in violation of the privilege.289 Schulhofer asserts that the improper comments in Griffin v. California290 that the jury should consider the defendant’s silence in determining guilt applied “impermissible pressure” on the defendant to testify.291 Schulhofer then equates this atmospheric pressure present in the courtroom in Griffin with the atmospheric pressure inherent in the police station during custodial interrogation.292 What Schulhofer fails to recognize, however, is that the Griffin decision was not based upon the presence of atmospheric pressure. Rather, the comments made by the prosecutor and the judge were seen to violate the privilege because they constituted “objectively identifiable penalties” against the defendant, as they directly increased the chances of his conviction.293 As the Court itself recognized, atmospheric pressure was present from the beginning of Griffin’s trial for him to provide his side of the story, as it is in any criminal trial.294 But the penalties imposed by the prosecutor and the judge went beyond that ordinary atmospheric pressure, changing the status quo in favor of the government and against the defendant.295 The comments “solemnized” that pressure into an actual penalty that could be objectively identified and measured.296

Contrary to Schulhofer’s assertions, when a police officer simply asks a question of a suspect in custody, that act has not, by itself, imposed an objectively identifiable penalty in response to silence or to provoke speech. If, during the interrogation, the officer changes the status quo to provoke a confession by, for example, depriving the suspect of cigarettes until he talks or telling him that his silence will be used against him at trial, then the officer has at that time “solemnized” the pressure into an “objectively identifiable penalty” to provoke speech. The “formal setting” cases would require a finding of compulsion only at that moment-at the imposition of such a “penalty.”297

Furthermore, Schulhofer’s proposal is contrary to existing law. As described previously, the Miranda-exception cases have undermined the notion that custodial interrogation equates with compulsion.298 The Supreme Court has not yet provided a new definition of “compulsion,” but it is clear that it requires some amount of pressure beyond mere custodial interrogation.299 The “objectively identifiable penalty” test that I have proposed, therefore, is consistent not only with the “formal setting” cases, but with the Court’s current interpretation of “compelled” in the police interrogation setting as well.

On the other hand, another notable scholar, the late Professor Joseph Grano, asserted vigorously for years that the test for compulsion should be the same as that under the due process involuntary confession rule: whether the confession was made “voluntarily.”300 This theory should be rejected for several reasons. First, the “voluntariness test” is contrary to the text of the privilege. The word “voluntary” is, linguistically speaking, an adjective that calls for an inquiry into the suspect’s state of mind. The word “voluntary” therefore demands a subjective test-focusing on all factors that could affect the suspect’s mental state. Not surprisingly, the due process rule that has evolved around the word “voluntary” likewise requires an inquiry into the “totality of the circumstances” to determine whether the suspect’s will has been “overborne.”301 It is a subjective test, which takes into account not only the governmental conduct involved, but characteristics unique to the speaker, such as his age, background, the strength of his character and his mental condition at the time.302 Under a subjective voluntariness test, a particularly hearty suspect may be deemed to have made a voluntary statement in the face of enormous pressure, while a particularly weak suspect may be deemed to have made an involuntary statement in response to the lightest of pressures.

The text of the privilege, however, requires no such focus on the state of mind of the individual being questioned. The privilege says nothing about “involuntary” confessions-only “compelled” confessions.303 “To compel” has been defined as “to drive forcefully” and “to cause to do by overwhelming pressure.”304 The privilege, like the rest of the Bill of Rights, restrains the conduct of government officials only.305 Therefore, the term “compel,” as used in the privilege and in the context of its placement in the Bill of Rights, is a verb that relates to the action of the government official performing the interrogation. It demands an objective test, because semantically it directs the focus of the inquiry solely on to the conduct of the government official applying the pressure in question, rather than the subjective mental state of the suspect. If the force used by the government official objectively rises to the level of “compulsion” the privilege has been violated, period.

This objective interpretation of the term “compelled,” which focuses solely on police conduct, is consistent not only with the text of the privilege and how the privilege has been defined in the “formal setting” cases,306 but with the historical origins of the privilege as well. Nothing in the scholarly literature suggests that the Framers intended to create a sliding scale that adjusts the amount of force permissible depending on characteristics unique to the suspect. The historical events leading up to the inclusion of the privilege against compulsory self-incrimination in the Bill of Rights reflect a simple desire by the Framers to prohibit the government’s use of force and other such objectively identifiable penalties in response to silence or to provoke speech. The precursor of these events was the operation of the Star Chamber, the Court of High Commission and the other ecclesiastical courts of medieval and early modern Europe, which produced confessions from subjects through the use of torture and other objective devices of coercion.307 Thus, the Framers were aware of interrogation devices-certain “objectively identifiable penalties”-that were utilized by those in authority in medieval and Renaissance Europe to obtain confessions. By including a provision in the Bill of Rights barring the government’s use of compulsion to obtain statements, they undoubtedly intended to prohibit the government’s use of such penalties.308

Professor Grano’s “voluntariness test” proposal can be traced to the Court’s first interpretation of the privilege in Bram v. United States.309 Although Brain has been explicitly repudiated by the Supreme Court,310 an examination of the decision is nonetheless revealing because it demonstrates the problematic origins of the voluntariness test. In holding the defendant’s statements inadmissible under the privilege against compulsory self-incrimination, the Bram Court stated: “[A] confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.”311 In conflating compulsion with voluntariness, the Bram Court completely ignored the text of the privilege and the use therein of the objective verb “compelled” rather than the subjective adjective “voluntary.”

But that was only its first mistake. The Bram Court then purported to address the historical underpinnings of the privilege.312 Its analysis on this point reveals a second problem with the Court’s voluntariness analysis. The Bram Court started by correctly noting that the adoption of the privilege was the culmination of centuries of “protest against the inquisitorial and manifestly unjust methods of interrogating accused persons . . . in the continental system[s]” of Europe.313 The Court then recounted those “unjust methods,” which included the torture and “browbeat[ing]” of suspects.314 This history, so far, supports the adoption of an objective test, designed to prohibit the imposition of certain “objectively identifiable penalties.”

At the next step, however, the Court’s historical analysis is fundamentally flawed. The Court turned to early cases in England and Colonial America that stand for the proposition that statements must be “voluntary” to be admissible as evidence.315 The Court borrowed from these cases the voluntariness test that it inexplicably substituted for the concept of compulsion.316 As several scholars have pointed out, however, the voluntariness test found in these early cases is historically unrelated to the privilege against self-incrimination and the practices the privilege was intended to address.317 Indeed, two distinct confession doctrines evolved from the Middles Ages through the 19th Century.318 The first, sometimes referred to as nemo tenetur,319 was concerned with the use of oppressive government force during interrogations conducted by the Star Chamber and other inquisitorial tribunals in Europe.320 This doctrine and the policies behind it were the impetuses behind the inclusion of the privilege in the Bill of Rights.321

The second doctrine was simply a common law rule of evidence that, like rules prohibiting the introduction of hearsay, was designed to prevent the introduction of evidence likely to be unreliable.322 This doctrine was unconcerned with protecting civil liberties or curbing the brutal interrogation methods of tribunals like the Star Chamber.323 The majority of cases that constituted this doctrine involved confessions that were deemed involuntary and thus unreliable because of positive benefits, such as bribes, that had been offered to suspects to induce self-incriminating statements.324 This doctrine was also frequently applied in civil cases in which witnesses had been bribed to make statements in favor of a party to the litigation.325 When drafting the Self-Incrimination Clause, the Framers were understandably not concerned with government officials granting positive favors to suspects. Grants of positive favors are appropriately addressed by rules of evidence such as hearsay rules that are based on reliability related policies, because a witness or suspect might utter certain words of choice in order to receive benefits. The granting of positive benefits to induce speech does not, however, infringe civil liberties, and thus does not rise to the level of constitutional concern. History reveals that the Framers intended the privilege to ban only negative inducements such as torture which do, in fact, offend notions of civil liberties.326

Because the common law voluntariness rule based solely on reliability served a purpose that was different from the purpose served by the privilege against compulsory self-incrimination, its scope was appropriately different from the scope of the privilege.327 If one is concerned with making sure that all evidence admitted at trial is reliable, then one should be concerned with any matter that might render testimony unreliable-from government conduct to the speaker’s subjective mental state, and from positive inducements to negative inducements. Such a policy perspective calls for a subjective “totality of the circumstances” approach to include all the factors that may render a statement unreliable. A subjective voluntariness analysis is an appropriate test for this purpose. But this test is detached from both the text and historical underpinnings of the privilege.328

Furthermore, Professor Grano’s voluntariness proposal is particularly dubious because the test has not worked in practice. This test has been used under the parallel Due Process Clause since 1936,329 and its failings are what caused the Court to search for the alternative it found in 1966 in Miranda.330 Because the test is subjective and essentially requires a court to divine the state of mind of the suspect at the time of the interrogation, it is difficult for courts to apply and provides little guidance to the police.331 Not surprisingly, the due process involuntary confession rule has been widely criticized as “useless” in the scholarly literature.332 It is therefore questionable why anyone would want to graft this rule onto the privilege. This is particularly true when such a rule would be contrary to the text and history of the privilege,333 and would create two completely different meanings for “compulsion” in the formal setting and police interrogation setting, rendering the privilege’s jurisprudence internally inconsistent.334

Moreover, the Court’s decision in Miranda repudiated any notion that the privilege requires a subjective “voluntariness” analysis, as Professor Grano proposes.33S Indeed, Miranda corrected some of the Court’s errors of the past, as it clearly set forth an objective test for compulsion.336 Miranda was consistent with the formal setting cases in the sense that it set forth an objective standard, focused solely on the pressure exerted by the government: custodial interrogation.337 But Miranda was arguably inconsistent with the formal setting cases as well because it required a finding of compulsion prior to the imposition of any sort of objectively identifiable penalty.338 In any event, the idea that custodial interrogation equates with compulsion is no longer a viable theory after Quartes and the other Miranda-exception cases.339 The current state of the Court’s jurisprudence indicates that compulsion requires some amount of pressure beyond mere custodial interrogation.340

The objectively identifiable penalty test I have proposed in this Article is consistent with current Supreme Court precedent because it requires something beyond mere custodial interrogation to constitute compulsion. My proposal is also doctrinally sound because it reconciles the definition of compulsion in the police interrogation context with the Court’s definition of that term in formal settings. Finally, my proposal is also in harmony with both the text and history of the privilege. Accordingly, it should be adopted to determine the admissibility of confessions in the international arena.

C. THE OPERATION OF THE “OBJECTIVELY IDENTIFIABLE PENALTY” TEST IN THE INTERNATIONAL ARENA

Based on the above discussion, FBI agents abroad should be found to violate the privilege against compulsory self-incrimination whenever they impose an objectively identifiable penalty, in any form, on a non-American suspect in response to the suspect’s silence or in an attempt to make the suspect speak. The test would be objective, and would focus solely on the conduct of the interrogating agents. A definition of an objectively identifiable penalty would have to be developed on a case-by-case basis, as has occurred in the formal setting context. This Article cannot purport to address the myriad of scenarios that arise on a daily basis during interrogations abroad. Examples of an objectively identifiable penalty could be a slap to provoke speech, a denial of sleep or food until the suspect speaks, a threat that the suspect’s silence will be used against him in making charging decisions, a denial of cigarettes until and unless he speaks, a threat with a gun to provoke speech, a refusal to allow the suspect to use the bathroom until he speaks, or any of the other litany of penalties an imaginative FBI agent could concoct.

Additionally, FBI agents must not make a verbal claim of right to a suspect’s statements. Stated another way, the agents must not suggest, directly or indirectly, that the suspect is required by law to speak. This rule is required under the formal setting cases because claims of right imply the agent’s ability to resort to legal remedies, such as holding a suspect in contempt and imprisoning him, if he does not comply.341 In its most obvious form, this rule would prevent an FBI agent from saying to a suspect: “You are required to tell us what happened. You do not have a choice.”

As the foregoing discussion suggests, the use of any objectively identifiable penalty to punish silence or to provoke speech would violate the privilege. Such a rule is required under the formal setting cases not because something as slight as taking away a suspect’s cigarettes to provoke his speech is, viewed in isolation, the type of penalty the Framers desired to prohibit. Rather, such an act makes a claim of right to the suspect’s statements.342 Claims of right imply the agent’s ability to impose greater penalties. The use of punishment in any form says to the suspect: “I have the power to punish. You do not have a choice but to speak.” Thus, even the slightest objectively identifiable penalty, if used to punish silence or to provoke speech, makes a claim of right to the suspect’s statements, and constitutes an implied threat of the future imposition of additional penalties if the suspect does not cooperate. Such an act, as in the formal setting cases, constitutes compulsion under the privilege.

The imposition of objectively identifiable penalties must be distinguished from “denials of requests.” Consider, for example, a suspect under interrogation who requests that his friend be allowed in the interrogation room during the interrogation. If the FBI agent grants access to the friend, there has clearly been no penalty imposed. But, if the agent denies this request and the suspect then confesses, has the agent imposed an objectively identifiable penalty? A distinction should be made as to whether the request was linked to the suspect’s continued willingness to speak. Take, for example, a suspect who says, “I will not talk to you anymore unless my friend is present.” This statement reflects an invocation of the right to remain silent unless a condition is met. If the condition is not met, the statement should be viewed as an unequivocal invocation of the privilege. Thus, if the FBI agent refused to allow the suspect’s friend to be present, the agent would be required to refrain from any further questioning, just as would occur in the formal setting when someone invoked the right to remain silent. If the FBI agent then stated, “We’re not going to allow your friend to sit in, so I guess this interview is finished,” the interrogation could continue only if the suspect initiated further dialogue.

But what about a request that is not tied to an invocation of the privilege? Suppose an in-custody suspect under interrogation simply asks, “Can I have some food?” Whether a denial of this request would constitute an impermissible penalty turns on two factors. The first factor is whether the denial would negatively change the status quo from the suspect’s normal conditions of custody. For example, if the suspect is normally allowed to eat at that time under the conditions of his custody, not allowing him to eat would constitute a penalty above and beyond the status quo. But if the suspect made a ridiculous request that went above and beyond the status quo, like a request to have his favorite meal flown in, the denial of this request could not be seen as changing the status quo or imposing a penalty to provoke speech.343 Second, the denial would have to be objectively viewed as designed to punish silence or provoke speech. This determination would depend on the unique circumstances of the interrogation. If the request was made while the suspect was talking freely, the denial of such a request should not give rise to an inference that it was designed to punish speech or provoke silence. But if, for example, the request and denial occurred after hours of contentious dialogue, and at a point when the suspect was at his “breaking point,” a contrary inference might be drawn.344

CONCLUSION

American courts have not yet determined which constitutional confession doctrines, if any, protect non-Americans beyond the borders of the United States. But as American crime continues to become more global in nature, such determinations will have to be made in the not too distant future. In the United States, a two-step test controls the admissibility of confessions. The first step, the Miranda doctrine, is inapplicable in the international arena. The second step, the due process involuntary confession rule, likewise offers non-Americans no protection abroad. However, non-Americans abroad are in fact protected by the privilege against compulsory self-incrimination, and its prohibition on “compelled” confessions when questioned by American agents.

Due to judicial politics and compromises, the Supreme Court has not clearly defined compulsion in the interrogation context. Indeed, it has not needed to, as the due process involuntary confession rule has served as Miranda’?, back-up test, and has accordingly shielded the privilege from direct judicial scrutiny. Because the due process involuntary confession rule is inapplicable in this context, however, American courts will finally be forced to determine the meaning of a “compelled” confession.

This Article contends that the privilege requires an objectively identifiable penalty test. This test prohibits law enforcement officers from imposing objectively identifiable penalties on suspects in response to silence, or to provoke speech. This test is consistent with both the text and historical underpinnings of the privilege. It is also in harmony with the Court’s interpretations of the privilege in the formal setting, such as trials, and with the Court’s incomplete definition of compulsion in the police interrogation setting. Accordingly, the objectively identifiable penalty test should be adopted by American courts to determine the admissibility of confessions made by non-Americans to FBI agents abroad.

MARK A. GODSEY*

* Assistant Professor of Law, University of Cincinnati College of Law; Faculty Director, Center for Law and Justice and Ohio Innocence Project. Former Assistant United States Attorney, Southern District of New York, 1996-2001. E-mail: mark.godsey@uc.edu. I would like to thank Professors Gabriel (Jack) Chin, Emily Houh, Mark Stavsky and John Valauri for reviewing earlier drafts of this Article and providing helpful suggestions. Finally, I would like to thank Raeshon Monsoor, a recent graduate of the Salmon P. Chase College of Law, for his outstanding research assistance.

Copyright Georgetown University Law Center Apr 2003

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