No. 95-1491

In the Supreme Court of the United States

OCTOBER TERM, 1995

UNITED STATES OF AMERICA, PETITIONER

v. 

D.F.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

DREW S. DAYS, III
Solicitor General
Department of Justice
Washington, D.C. 20530
(202) 514-2217

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TABLE OF AUTHORITIES

Cases:                   

Page

Ashcraft v. Tennessee, 322 U.S. 143 (1944) . . . . 4
Crane v. Kentucky, 476 U.S. 683 (1986) . . . . 2, 5
First Options of Chicago, Inc. v. Kaplan, 115 S.
Ct. 1920 (1995) . . . . 2
Miller v. Fenton, 474 U.S. 104 (1985) . . . . passim
Mincey v. Arizona, 437 U.S. 385 (1978) . . . . 4
Pierce v. Underwood, 487 U.S. 552 (1988) . . . . 2
Salve Regina College v. Russell, 499 U.S. 225
(1991) . . . . 2
Thompson v. Keohane, 116 S. Ct. 457 (1995) . . . . 4

Constitution and statutes:

U.S. Const.:
Amend. IV . . . . 4
Amend. V (Due Process Clause) . . . . 5
18 U.S.C. 2254(d) . . . . 2
18 U.S.C. 350l(a) . . . . 5

(I)

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In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-1491

UNITED STATES OF AMERICA, PETITIONER

v.

D.F.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

Respondent agrees that our petition should be
granted. Resp. Br. 6-7. She acknowledges that every
court of appeals except the Seventh Circuit has re-
quired de novo review of involuntary-confession
claims, id. at 6, that the issue "has broad importance,"
ibid., and that the standard of review may have
determined the result in the court of appeals in this
case, id. at 7. She disagrees only with our request for
summary reversal. None of the reasons she gives,
however, would support affirmance of the decision
below.
1. Respondent suggests that the Court. should
distinguish Miller v. Fenton, 474 U.S. 104 (1985), and
the earlier decisions on which it relied, because those
cases involved federal review of state court determi-

(1)

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2

nations, rather than direct appeals in federal criminal
cases. Resp. Br. 8-13. That proposed distinction is
unfounded. See Pet. 17-18.
While Miller did arise in the context of federal
habeas review, the principal basis of the Court's
decision was that "the ultimate issue of 'voluntari-
ness' is a legal question," 474 U.S. at 110; see id. at
115 ("it would be inappropriate to abandon the Court's
longstanding position that the ultimate question of
the admissibility of a confession merits treatment, as
a legal inquiry"); see also Crane v. Kentucky, 476
U.S. 683, 688 (1986) (voluntariness of a confession is
a "purely legal question"). The legal nature of the
inquiry was dispositive in Miller because the pre-
sumption of correctness under 18 U.S.C. 2254(d) ap-
plies only to questions of fact. It is equally well
established that federal appellate courts, reviewing
federal district court decisions, "accept[] findings of
fact that are not 'clearly erroneous' but decid[e]
questions of law de novo." First Options of Chicago,
Inc. v. Kaplan, 115 S. Ct. 1920, 1926 (1995); see Pierce
v. Underwood, 487 U.S. 552, 558 (1988); Salve Regina
College v. Russell, 499 U.S. 225, 231-233 (1991). There
is not a single federal constitutional issue of which
we are aware and respondent refers to none-that
the federal courts consider "legal" when decided by a
state court, but "factual" when decided by a federal
district court. 1.

___________________(footnotes)

1 Respondent suggests (Br. 8) that Miller may be limit to
a district court's initial collateral review of state-court judg-
ments, and that it is inapplicable to appellate review.  The
Court in Miller, however, referred interchangeably to "inde-
pendent federal or appellate review," 474 U.S. at 114 (emphasis
added), and relied not only on collateral-review precedents, but
also on cases decided on direct appeal, id. at 110-111; see also

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3

Respondent contends that, even if Miller controls
here, the question whether the staff at the county
Mental Health Center acted as law enforcement sur-
rogates in receiving her confessions is a factual
question subject to review for clear error. Resp. Br.
12-13. But, as we pointed out in our petition, the issue
of whether the government crossed the line between
treatment and coercion cannot be resolved without
considering "the types of government action that, in
the circumstances of the case, are incompatible with
due process." Pet. 23. Although the factual ques-
tion of what the Center staff said and did is subject
to review for clear error, the "ultimate issue" of
"whether the State has obtained the confession in a
manner that comports with due process" is precisely
the kind of legal question that, as this Court held in
Miller, is subject to de novo review. 474 U.S. at 110,
115-116.
2. Respondent suggests (Br. 7, 13-19) that de novo
review is inappropriate with respect to a determi-
nation of voluntariness because that question has
an "unavoidably * * * subjective" component. In
Miller, however, the Court expressly noted that the
voluntariness inquiry has a subjective component, in
that the inquiry turns in part on "whether the de-
fendant's will was in fact overborne." 474 U.S. at 116.
Nevertheless, the Court reaffirmed its earlier de-
cisions holding that the ultimate conclusion on volun-
tariness remained a "legal question requiring federal
determination." Ibid. Indeed, the Court observed

___________________(footnotes)
                                          
Resp. Br. 10; Pet. 17 n.6. Moreover, as respondent points out
(Br. 8 n.5), the Court in Miller itself expressly required the
court of appeals to conduct plenary review on remand. 474
U.S. at 118.

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4

that the "hybrid quality" of the voluntariness inquiry
"itself militates against treating the question as one
of simple historical fact" amenable to review for clear
error. Ibid.
While respondent seeks to bifurcate the voluntari-
ness line of cases into two distinct strands, Resp.
Br. 16-19, Miller makes clear that de novo review
applies not only where "the claim is that the police
conduct was `inherently coercive,'" 474 U.S. at 110
(quoting Ashcraft v. Tennessee, 322 U.S. 143, 154
(1944)), but also where "the interrogation techniques
were improper only because, in the particular circum-
stances of the case, the confession is unlikely to have
been the product of a free and rational will." 474 U.S.
at 110 (citing Mincey v. Arizona, 437 U.S. 385, 401
(1978)). The Court reasoned that, "[b]ecause the ulti-
mate issue in both categories of cases is the same-
whether the State has obtained the confession in a
manner that comports with due process-the de-
cisions leave no doubt that our independent obligation
to decide the constitutional question is identical."
474 U.S. at 110. 2.

___________________(footnotes)

2 Respondent notes Br. 13-14) that two cases this Term pre-
sent questions of the proper standard of review of issues arising
in state and federal criminal prosecutions, see Thompson v.
Keohane, 116 S. Ct. 457 (1995) ("in custody" determinations for
Miranda purposes); Ornelas v. United States, No. 95-5257
(argued March 26, 1996) (reasonable suspicion and probable
cause determinations for Fourth Amendment purposes). Re-
spondent also notes that. the legal issues in those cases involve
purely objective determinations based on a reasonable-person
test, in contrast to the hybrid character of the voluntariness
determination. More fundamentally, however, this case differs
from those in that the Court has already made clear that
voluntariness is a legal issue subject to independent federal
review.

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5

3. Finally, respondent points out that, once a court
has held a confession to be voluntary and there-
fore admissible, evidence regarding voluntariness
may also be submitted to the jury. Resp. Br. 20-24.
Respondent contends that, in view of that procedure,
"it would be unusual for federal appellate courts to
undertake de novo review," because jury determina-
tions ordinarily are reviewed deferentially. Id. at 22-
23. Miller requires de novo review, however, only of
the district court's threshold constitutional deter-
mination that respondent's confessions were involun-
tary under the Due Process Clause. That question is
wholly independent of any jury issue. The appropri-
ate standard of review of a jury's decision regarding
how much weight, if any, to accord a properly ad-
mitted confession (see 18 U.S.C. 3501(a); Crane, 476
U.S. at 688-692) is a question not presented by this
case. As this Court made clear in Crane, evidence of
"the circumstances surrounding the taking of a con-
fession can be highly relevant to two separate in-
quiries, one legal and one factual." 476 U.S. at 688.
The propriety of de novo review of the legal question
is unaffected by the "entirely independent" factual
questions addressed by juries after confessions are
properly admitted. Id. at 689.
         
* * * * *

For the foregoing reasons arid those stated in the
petition, the petition for a writ of certiorari should be
granted.

Respectfully submitted.
          
DREW S. DAYS, III
Solicitor General

MAY 1996

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No. 95-1491

In the Supreme Court of the United States

OCTOBER TERM, 1995

UNITED STATES OF AMERICA, PETITIONER

v.

D.F.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DREW S. DAYS, III
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney
General

MICHAEL R. DREEBEN
Deputy Solicitor General

CORNELIA T.L. PILLARD
Assistant to the Solicitor 
General

JOEL M. GERSHOWITZ
Attorney

Department of Justice
Washington, D.C. 20530
(202)514-2217

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QUESTION PRESENTED

Whether the court of appeals departed from this
Court's decision in Miller v. Fenton, 474 U.S. 104
(1987), by applying a clear error rather than a de novo
standard of review to the district court's determin-
ation that respondent's confessions were involuntary,
in violation of the Due Process Clause of the Fifth Amendment
    
(I)

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TABLE OF CONTENTS

Page

Opinions below . . . . 1
Jurisdiction . . . . 2 
Constitutional provision involved . . . . 2 
Statement . . . . 2
Reasons for granting the petition . . . . 12 
Conclusion . . . . 24
Appendix A . . . . 1a 
Appendix B . . . . 34a
Appendix C . . . . 71a
Appendix D . . . . 93a

TABLE OF AUTHORITIES

Cases:

Arizona v. Fulminante, 499 U.S. 279 (1991) . . . . 14, 15
Ashcraft v. Tennessee, 322 U.S. 143 (1944) . . . . 17
Beckwith v. United States, 425 U.S. 341
(1976) . . . . 16, 17, 23
Blackburn v. Alabama, 361 U.S. 199 (1960) . . . . 13
Bose Corp. v. Consumers Union of United States,
Inc., 466 U.S. 485 (1984) . . . . 18
Brown v. Mississippi, 297 U.S. 278 (1936) . . . . 13
Colorado v. Connelly, 479 U.S. 157 (1986) . . . . 9, 13
Davis v. North Carolina, 384 U.S. 737 (1966) . . . . 15, 16, 17
Fare v. Michael C., 442 U.S. 707 (1979) . . . . 14
First Options of Chicago, Inc. v. Kaplan, 115 S. Ct.
1920 (1995) . . . . 14
Haley v. Ohio, 332 U.S. 596 (1948) . . . . 14, 16-17
Haynes v. Washington, 373 U.S. 503 (1963) . . . . 13, 16
Maggio v. Fulford, 462 U.S. 111 (1983) . . . . 19
Miller v. Fenton, 474 U.S. 104 (1987) . . . . 10, 12,
13, 14, 15, 17, 18, 19, 23
Mincey v. Arizona, 437 U.S. 385 (1978) . . . . 16
Ornelas v. United States, cert. granted, No. 95-5257
(Nov. 6, 1995) . . . . 23
Patton v. Yount, 467 U.S. 1025 (1984) . . . . 19

(III)

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IV

Cases-Continued:              

Page

Pierce v. Underwood, 487 U.S. 552 (1988) . . . . 14
Thompson v. Keohane, 116 S. Ct. 457 (1995) . . . . 15, 19
Townsend v. Sain, 372 U.S. 293 (1963) . . . . 15
United States v. Anderson, 929 F.2d 96 (2d Cir.
1991) . . . . 20
United States v. Baldwin, 60 F .3d 363 (7th Cir.
1995) . . . . 10, 11, 12, 17, 18, 19, 20, 21-22
United States v. Benitez, 34 F.3d 1489 (9th Cir.),
cert. denied, 115 S. Ct. 1268 (1995) . . . . 20-21
United States v. Bethancourt, 65 F.3d 1074 (3d
Cir.), cert. denied, No. 95-7691 (Feb. 26, 1996) . . . . 20
United States v. Blackman, 66 F.3d 1572 (11th Cir.
1995) . . . . 21
United States v. Burns, 15 F.3d 211 (1st Cir.
1994) . . . . 20
United States v. Cichon, 48 F.3d 269 (7th Cir.
1995) . . . . 21
United States v. Hawkins, 823 F.2d 1020 (7th Cir.
1987) . . . . 18, 21
United States v. Mendoza-Cecilia, 963 F.2d 1467
(11th Cir.), cert. denied, 506 U.S. 964 (1992) . . . . 21
United States v. Montgomery, 14 F.3d 1189 (7th
Cir. 1994) . . . . 9
United States v. Muniz, 1 F.3d 1018 (10th Cir.),
cert. denied, 114 S. Ct. 575 (1993) . . . . 21
United States v. Pelton, 835 F.2d 1067 (4th Cir.),
cert. denied, 486 U.S. 1010 (1987) . . . . 20
United States v. Poole, 495 F.2d 115 (D.C. Cir.
1974), cert. denied, 422 U.S. 1048 (1975) . . . . 21
United States v. Restrepo, 994 F.2d 173 (5th Cir.
1993) . . . . 20
United States v. Rigsby, 943 F.2d 631 (6th Cir.
1991) . . . . 20
United States v. Robinson, 20 F.3d 320 (8th Cir.
1994) . . . . 20

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V

Cases-Continued:

Page

United States v. Rohrbach, 813 F.2d 142
(8th Cir.), cert. denied, 482 U.S. 909 (1987) . . . . 20 
United States v. Scurlock, 52 F.3d 531(5th Cir.
1995) . . . . 20
United States v. Yunis, 859 F.2d 953 (D.C. Cir.
1988) . . . . 21

Constitution and statutes:

U.S. Const. Amend. V . . . . 2, 7
Due Process Clause . . . . 3, 7, 12, 13
Juvenile Delinquency Act, 18 U.S.C. 5031 et seq . . . . 2, 7
18 U.S.C. 1111 . . . . 2, 7
18 U.S.C. 1153 . . . . 2, 7
28 U.S.C. 636(b)(1)(C) . . . . 8
28 U.S.C. 2254(d) . . . . 14, 17
Wis. Stat. Ann. 905.04(1)(b) (West 1995) . . . . 8

Miscellaneous:

1 Wayne R. LaFave & Jerold H. Israel, Criminal
Procedure (1984 & Supp. 1991) . . . . 13

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In the Supreme Court of the United States
      
OCTOBER TERM, 1995

No.       

UNITED STATES OF AMERICA, PETITIONER

v.

D.F.
                                         
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
           
PETITION FOR A WRIT OF CERTIORARI  
           
The Solicitor General, on behalf of the United
States, petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for
the Seventh Circuit in this case.
       
OPINIONS BELOW            

The opinion of the court of appeals (App., infra, la-
33a) is reported at 63 F.3d 671. The decision and order
of the district court (App., infra, 34a-70a) is reported
at 857 F. Supp. 1311. The report and recommendation
of the magistrate judge (App., infra, 71a-92a) is re-
ported as an appendix to the decision of the district
court at 857 F. Supp. 1327.

(1)

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2

JURISDICTION

The judgment of the court of appeals was entered on
August 25, 1995.  The petition for rehearing was
denied on November 17, 1995. App., infra, 93a. On
February 6, 1996, Justice Stevens extended the time
for filing a petition for a writ of certiorari to and
including March 16, 1996. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Consti-
tution states, in relevant part: "[N]o person shall be
* * * deprived of life, liberty, or property, without
due process of law."
       
STATEMENT

In the United States District Court for the Dis-
trict of Wisconsin, respondent D.F., a juvenile, was
charged with two counts of juvenile delinquency for
the commission of acts that would constitute second
degree murder if committed by an adult, in violation of
18 U.S.C. 1111, 1153, and 5031. Following a hearing, a
magistrate judge recommended suppression of re-
spondent's statements made to mental health workers
on grounds of privilege. The district court ordered
the statements suppressed, not on grounds of privi-
lege, but based on its conclusion that the use of the
statements at trial would violate the Constitution.
App., infra, 69a. Applying a clear error standard of
review, the court of appeals affirmed the district
court's ultimate determination that respondent's
admissions to therapists in a county mental health
treatment center that she killed her two infant
cousins were involuntary within the meaning of the

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3

Due Process Clause of the Fifth Amendment. Id. at
31a-33a.
1. In 1992, respondent was 12 years old and lived on
an Indian reservation in Wisconsin in the legal
custody of her aunt. On January 5, 1992, respondent's
one-year-old cousin was found dead. Six days later,
her two-year-old cousin was also found dead. The
deaths were initially attributed to Sudden Infant
Death Syndrome and Influenza A. It was later deter-
mined, however, that the deaths could have been
caused by external suffocation. App., infra, 2a, 34a,
71a.
Respondent had a history of assaultive behavior and
drug and alcohol abuse; there is also evidence that she
had suffered physical and sexual abuse during her
childhood. On August 17, 1992, an Indian tribal court
ordered respondent's aunt to seek mental health
services for respondent. The county Department of
Social Services recommended that respondent be
placed in the county Mental Health Center. On
December 4, 1992, respondent's aunt voluntarily com-
mitted her to the Center; respondent herself played
no role in the admission decision. App., infra, 2a-3a,
36a-37a, 73a.
Respondent remained at the Center until May 1993,
where she lived in a ward for adolescents and par-
ticipated in a residential treatment program. Respon-
dent had freedom of movement within the ward and to
other buildings for school and meals. The ward itself,
however, was locked, screens secured its windows,
and patients had to be escorted when they left the
locked area. All patients were observed by staff at
least hourly. Patients who left the Center, with or
without permission, were strip searched for contra-
band upon their return. On the one occasion when

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4

respondent ran away from the Center, she was
returned by the police the next day. App., infra, 3a-
4a, 40a, 73a.
While at the Center, respondent was under the care
of a treatment team that included a psychiatrist, a
social worker, a registered nurse, and other thera-
pists. The plan of treatment included a point system
for administering privileges and punishment to en-
courage good behavior and program" participation.
Patients at the lowest level ("base zero") were con-
fined to their rooms, wore only hospital gowns and no
shoes, and were forbidden to talk to other patients.
Those at higher levels were allowed to wear their own
clothes, move about the Center, and interact with
others as they wished. Patients were encouraged to
talk and to write about their problems. They could
earn or lose points, and thereby move up or down
levels, depending on whether they engaged in open
and honest discussion with staff members and family
about their problems. For example, points could be
gained by initiating conversations with the assigned
staff member at, least once a shift, answering ques-
tions, writing in journals, and participating sincerely
in group therapy sessions. App., infra, 4a, 37a, 40a-
41a, 76a. "Because of her behavioral problems and her
problems with mistrust of authority, [respondent], in
particular, had a care plan specially designed to
encourage her to address anger issues by speaking
frankly about the abuse she had inflicted on other
children." Id. at 41a. While at the Center, respondent
was given psychotropic medications, including Thora-
zine, Ativan, and Zoloft. Id. at 4a.
By mid-December 1992, staff at the Center were
aware that respondent was a suspect in the deaths of
her cousins.  After reviewing state-law reporting

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5

requirements, the staff repeatedly informed respon-
dent that "any statements she made about abuse of
other children would have to be reported."  App.,
infra, 39a, 43a-44a, 74a. At the same time, Center
staff also sought to develop respondent's trust in
them. They encouraged her to speak openly about any
harm she had caused to other children. They asked
her directly whether she had ever murdered anyone,
and told her to make a list of all the people she had
ever harmed. Id. at 4a-5a, 41a, 44a, 74a, 75a. Many
staff members encouraged respondent to talk about
her past actions solely out of a belief that it was
essential to her therapy and eventual recovery. Id. at
43a.  Other staff members took the view "that
[respondent] would not recover unless and until she
took responsibility for her wrongs and was held
accountable for them, in a court of law if necessary."
Id. at 43a, 85a.
At first, respondent did not discuss her past
assaultive behavior. She told a staff member that she
could not talk with staff "because of staff's reporting
requirements." App., infra, 40a. Respondent's aunt
told a Center socialworker that respondent had said
that if all were known about what respondent had
done, respondent believed she would "go to jail for a
long time." Ibid. In January 1993, however, respon-
dent admitted abusing three of her cousins.
Respondent signed a release to permit disclosure of
those admissions, and they were reported to social
service authorities. She was not prosecuted for the
assaults, In March, Center staff told her that the
State had made a tentative decision to "shelve" any
charges arising out of those admitted abuses, and that
no harm would come to her as a result of those

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6

admissions as long as she continued to make progress
in her treatment. App., infra, 6a, 42a, 74a-75a.
On. April 5, 1993, "respondent, then 14 years old,
admitted in a group therapy session to having killed
her cousins. The juveniles in the group were discus-
sing serious things they had done in the past. After
one juvenile disclosed an incident and was being
encouraged by the others to be more frank, respon-
dent stated, "Oh, you think what you did was bad, let
me tell you what I did," following which she described
the details of her cousins' deaths, App., infra, 44a,
76a. Several hours later, she told another staff mem-
ber about the murders, and said that she was relieved
finally to talk about them because the secret had been
"eating her up.", Id. at 8a. The next day, the group
therapist told the treatment team about respondent's
confession. A liaison from the Department of Social
Services who was present at the meeting immediately
called Child Protective Services and reported the
confession. Id. at 8a, 44a-45a, 75a-77a.
An FBI investigation ensued. The treatment team
at the Center had some uncertainty about whether
respondent's admission should have been disclosed to
child protective services.  In an April 16, 1993,
telephone call from an FBI agent, respondent's social
worker at the Center expressed those uncertainties.
Later that day, the social worker was told by the
Center's administrative staff and counsel that
disclosure was permitted but not required by the
state child abuse laws. After being told that
cooperation with the FBI was appropriate, the social
worker decided to do so. Respondent, who apparently
was not informed of the social worker's cooperation,
was encouraged by the staff in therapy sessions to
elaborate on her role in her cousins' deaths. On April

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7

22, an appointed attorney advised respondent not to
speak with anyone about her confessions, and she
signed a statement invoking her Fifth Amendment
right against compulsory self-incrimination.
Respondent's social worker told the attorney that
group therapy sessions were "confidential."
Respondent repeated her confessions nine more
times, including at family therapy meetings on April
14, April 23, and May 10, 1993.  App., infra, 8a, 42a, 
45a-48a.
2. a. The United States charged respondent under
the Juvenile Delinquency Act, 18 U.S.C. 5031 et seq.,
with two counts of juvenile deliquency for acts that
would constitute murder in the second degree if
committed by an adult, in violation of 18 U.S.C. 1111
and 1153. Respondent moved to suppress her state-
ments on the grounds that they were made in
violation of her Fifth Amendment privilege against
compulsory self-incrimination and the Due Process
Clause. App., infra, 9a. The magistrate judge deter-
mined that respondent was not in custody for Mir-
anda purposes, id. at 90a, but recommended that the 
motion to suppress be granted on the ground that the 
confessions were protected from disclosure by a 
state-law psychotherapist-patient privilege, ibid. 1.
The magistrate judge did not make a recommendation

___________________(footnotes)

1 The magistrate judge applied the psychotherapist-patient
privilege notwithstanding that respondent had been warned
that statements that she had harmed others would be reported.
As the magistrate interpreted it, the privilege protected the
statements from disclosure unless the patient intended that
they be reported.  The court found that respondent's intent
was "therapeutic, not to have the information conveyed to the
police, but to demonstrate to the staff that she was developing
trust in them." App., infra, 82a.

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8

regarding whether the confessions were involuntary
in violation of due process.  See id. at 77a-89a.
b. The district court reviewed the recommendation
de novo pursuant to 28 U.S.C. 636 (b)(1)(C) and 
granted the suppression motion, not on the recom-
mended ground, but because he believed that the 
confessions were constitutionally involuntary.  App.,
infra, 63a-70a. 2. "[A] confession will be adjudged
'voluntary' if the government demonstrates that 
under the totality of the circumstances and by a 
preponderance of the evidence that it was not secured

___________________(footnotes)

2 The district court rejected the magistrate's reliance on the 
psychotherapist-patient privilege. App., infra, 48a-59a.  Apply-
ing a case-by-case "interest balancing"  approach to the privi-
lege, the court concluded that, because respondent's participa-
tion in therapy was compelled and she knew Center staff
members had reporting obligations, disclosure of respondent's
statements "would not significantly impact utilitarian or
privacy interests." Id. at 57a-58a. Nondisclosure, in contrast, 
'would seriously impact Government law enforcement inter-
ests as well as the truth-seeking process that is an integral part
of our justice system." Id at 59a. The existence and scope of a 
federal psychotherapist-patient privilege is now before the 
Court in Jaffee v. Redmond, No. 95-266.  We agree with the 
district court, App., infra, 55a n.22, that under the "de-
finitional" or  "categorical" approach that we advocate, re-
spondent's statements are not privileged, see Jaffee, U.S. Br. at
20-21, 26; cf. Wis. Stat. Ann. 905.04(1)(b) (West 1995).
The district court also started that it would "not decide this
case on Miranda grounds." App., infra, 62a.  The court noted
that Miranda is a "bright-line prophylactic rule" designed to 
govern police conduct, and that "[c]ourts have been reluctant
to expand the Miranda requirements to questioning by officials
outside the law enforcement community." Id. at 61a-62a. That
reluctance was well-founded here, in the court's view, in the 
absence of " any widespread pattern of overreaching by mental 
health officials seeking to elicit confessions."  Id. at 62a.

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9

through psychological or physical intimidation but
rather was the 'product of a rational intellect and a
free will.'" Id. at 63a (citations omitted).
The court held that, although a confession cannot
be deemed involuntary in the absence of coercive
government action, law enforcement personnel are
not the only government actors who may engage in
such conduct. App., infra, 64a-66a (citing Colorado v.
Connelly, 479 U.S. 157 (1986)). The court determined
that "[c]learly, this case involves coercion-indeed, a
bit of overreaching-by government employees." App.,
infra, 67a. The court stated:

Staff members at the Center were either enlisted
or volunteered to act as law enforcement sur-
rogates in eliciting confessions from troubled
teens. There is extensive evidence in the record
of the close relationship between staff at the
Center and Protective Services, the juvenile
court system, and the F.B.I. There is also evi-
dence that many of the staff at the center saw
themselves as an arm of law enforcement.

Ibid.
The district court then examined "the charac-
teristics of the accused and the details of the
interrogation" to determine whether the confessions
were voluntary. App., infra, 67a (quoting United
States v. Montgomery, 14 F.3d 1189, 1194-1195 (7th
Cir. 1994)). The court concluded that, "[g]iven the
circumstances under which they were employed, the
various `encouragement' techniques employed by the
staff were highly coercive. A reasonable person of
[respondent's] age, intellect, and mental state would
have felt coerced." App., infra, 69a. In reaching that
conclusion, the court observed that "[t]here is no

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10

evidence * * * that [respondent] was ever fully
warned of the consequences of a confession," and that
"the evidence suggests that the warnings * * *
never included any mention of [respondent's] Fifth
Amendment privilege against self-incrimination." Id.
at 68a-69a. The court thus held that respondent's
inculpatory statements "were secured through
psychological coercion and were not the 'product of a
rational intellect and free will.'" Id. at 69a.
3. The court of appeals, following its holding in
United States  v. Baldwin, 60 F.3d 363 (1995), applied a
clear error standard of review to the district court's
determination that respondent's confessions were
involuntary, App., infra, 12a-13a. The panel in
Baldwin expressly overruled circuit precedent that
had embraced the "conventional standard" of de novo
appellate review of voluntariness determinations.
Baldwin, 60 F.3d at 364. In so doing, the court
distinguished this Court's decision in Miller v.
Fenton, 474 U.S. 104 (1987), which required indepen-
dent, plenary review of the question whether a con-
fession was voluntary, on the ground that Miller
involved federal habeas review of a state-court
decision, rather than direct review of the decision of a
federal district court. 60 F.3d at 364. The court
identified three reasons that, in its view, favored the
clear error standard: (1) the trial judge is "closer to
the facts" and therefore "knows more about the
premise to which the legal standard * * * is to be
applied"; (2) the trial judge is "more practiced than
appellate judges in assessing the significance of
facts"; and (3) de novo review is not necessary to
produce legal uniformity since "the legal standard is
a given and only its application to a particular and

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11  

perhaps unique set of facts is in question." Baldwin,
60 F.3d at 365.
Under a clear error standard, the court of appeals
affirmed the district court's holding that respondent's
confessions were involuntary. App., infra, 18a-33a.
The court held that "the district court was correct
insofar as it believed that, in assessing the voluntar-
iness of a confession, the holding of [Colorado v.]
Connelly [, supra,] does not restrict the protection of
the Fifth Amendment's Due Process Clause to the
actions of `law enforcement personnel.'" Id. at 20a.
The court of appeals stated, however, that "although a
government employee need not be a law enforcement
official for his questioning to implicate the strictures
of the Fifth Amendment, his questioning must be of a
nature that reasonably contemplates the possibility of
criminal prosecution." Id. at 27a-28a.
The court of appeals concluded that "whatever our
own judgment might have been had we sat as trial
judges in this case, a respect for the division of roles
assigned to the trial and appellate benches requires
that we not disturb the district court's conclusion
that the medical staff at the Center saw the prose-
cution of [respondent] as a part of their work. Al-
though the evidence is not at all one-sided, we cannot
say that the court was clearly erroneous."  App.,
infra, 31a. The court also relied on the clear error
standard in affirming the district court's "conclusion
that [respondent's] inculpatory statements were not
the product of a rational intellect and a free will." Id.
at 32a (quotation marks omitted). The court of
appeals observed that the district court had reviewed
"the efforts of the [center's] staff to gain [respon-
dent's] trust, the systems of rewards and sanctions
that were imposed, the absence of any comprehensive

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12

warning to the full consequences of [respondent's]
disclosure, and the absence of any mention of her
right against self-incrimination." Ibid. The court
concluded: "We cannot say, given the standard of
review to which we must adhere, that [the district
court's] conclusion is clear error." Ibid. "Nor can we
say," the court added, "that the district court was in
error in its conclusion that the subsequent con-
fessions of [respondent] were inadmissible because
they were the result of continued staff pressure."
Ibid. 
The court denied the United States' petition for
rehearing and suggestion for rehearing en banc.
App., infra, 93a. 

REASONS FOR GRANTING THE PETITION

The court of appeals, contrary to a long line of
decisions of this Court, applied a clear error standard
of review in affirming the district court's deter-
mination that respondent's confessions that she killed
her infant cousins were involuntary, in violation of
the Due Process Clause. That decision conflicts with
this Court's established rule that the voluntariness of
a confession is reviewed by appellate courts under a
de novo standard-a rule recently reaffirmed in
Miller v. Fenton, 474 U.S. 104 (1987). The court of
appeals' decision also conflicts with decisions in every
other federal court of appeals. As this Court recog-
nized in Miller, this is an issue of "importance to the
administration of criminal justice." Id. at 109. See
also Baldwin, 60 F.3d at 367 (Ripple, J., dissenting
from the denial of rehearing en banc) ("the standard of
review governing the voluntariness of a confession"
is "a major issue in criminal procedure"). In view of
the significance of the question presented, and the

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13

clear, recent decision in Miller resolving that ques-
tion, the petition should be granted and the erroneous
decision of the court of appeals summarily reversed.
1. The "voluntariness" of a confession under the
Due Process Clause depends on whether, under "the
totality of the circumstances," the confession was
free from governmental exertion of psychological or
physical pressures, and thus the product of rational
intellect and free will.  Miller, 474 U.S. at 111;
Colorado v. Connelly 479 U.S. 157, 164 (1986); Haynes
v. Washington, 373 U.S. 503, 513-514 (1963); App.,
infra, 18a-19a. The Due Process Clause prohibits
"interrogation techniques [that], either in isolation
or as applied to the unique characteristics of a
particular suspect, are so offensive to a civilized
system of justice that they must be condemned."
Miller, 474 U.S. at 109. 3. There must be an "essential
link between coercive activity of the State, on the one
hand, and a resulting confession by a defendant, on the
other." Connelly, 479 U.S. at 165. "[W]hile mental
condition is surely relevant to an individual's
susceptibility to police coercion," it is not determina-
tive. Id. at 164 Rather, the analysis "turns as much
on whether the techniques for extracting the
statements, as applied to this suspect, are compatible
with a system that presumes innocence and assures
that a conviction will not be secured by inquisitorial
means as on whether the defendant's will was in fact
overborne." Miller, 474 U.S. at 116. Although a   

___________________(footnotes)

3 See generally Blackburn v. Alabama, 361 U.S. 199 (1960)
("a complex of values underlies the stricture against use by the
state of confessions which, by way of convenient shorthand, this
Court terms involuntary."); Brown v. Mississippi, 297 U.S.
278 (1936); 1 Wayne R. LaFave & Jerold H. Israel, Criminal
Procedure 6.2, at 441-449 (1984 & Supp 1991).

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14               

defendant's age is relevant factor, the same due
process analysis applies to juveniles. Haley v. Ohio,
332 U.S. 596 (1948); cf. Fare v. Michael C., 442 U.S.
707, 725 (1979).
a. The decision below conflicts with Miller v.
Fenton, supra, and a long line of this Court's cases
consistent with Miller. Miller holds that the ques-
tion whether a confession was voluntary is not a
factual issue entitled to a presumption of correctness
under the federal habeas corpus statute, 28 U.S.C.
2254(d), but is a legal issue open to independent review
in federal court. The Court in Miller noted that
"[w]ithout exception; the Court's confession cases
hold that the ultimate issue of 'voluntariness' is a
legal question requiring independent federal deter-
mination." 474 U.S. at 110 (citing cases); see id. at
112, 113 (requiring "plenary" or "independent" re-
view); Arizona v. Fulminate, 499 U.S. 279, 287
(1991) (following Miller).
Miller is decisive here. De novo review of the legal
question whether particular interrogation tech-
niques are constitutionally unacceptable comports
with the established allocation of decisional respon-
sibilities between the federal district courts and the
courts of appeals: Appellate courts "accept[] findings
of fact that are not `clearly erroneous' but decid[e]
questions of law de novo." First Options of Chicago,
Inc. v. Kaplan, 115S. Ct, 1920, 1926 (1995); see Pierce
v. Underwood, 487 U.S. 552, 558 (1988). While the
findings of the underlying facts that surround the
issue of voluntariness are reviewed only for clear
error:, 4. de novo review governs the ultimate legal
 
___________________(footnotes)
      
4 This Court has defined factual findings as "basic, primary,
or historical facts: facts 'in the sense of a recital of external

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15

question whether a confession was "obtained in a
manner compatible with the requirements of the
Constitution." Miller, 474 U.S. at 112.
Miller reaffirmed "the Court's longstanding posi-
tion that the ultimate question of the admissibility of
a confession merits treatment as a legal inquiry," 474
U.S. at 115, warranting de novo consideration. The
Court has expressed that position both in collateral
and direct review of. state decisions and on direct
review of federal criminal decisions. For example, in
Davis v. North Carolina, 384 U.S. 737, 739 (1966), the
Court on habeas review reversed the admission in
evidence of a confession obtained from a suspect held
incommunicado in custody for 16 days. The Court
acknowledged that factual conflicts "were resolved
against Davis by the district court and we need not
review those specific findings here." Id. at 741. When
it reached the ultimate legal issue of voluntariness,
however, the Court conducted de novo review "It is
our duty in this case * * * as in all of our prior cases
dealing with the question whether a confession was
involuntarily given, to examine the entire record and
make an independent determination of the ultimate
issue of voluntariness. Wholly apart from the dis-
puted facts, a statement of the case from the facts
                     
___________________(footnotes)                          

events and the credibility of their narrators,'" Thompson v.
Keohane, 116 S. Ct. 457, 464 (1995), quoting Townsend v. Sain,
372 U.S. 293, 309 n.6 (1963). Thus, "subsidiary factual ques-
tions, such as whether a drug has the properties of a truth
serum, or whether in fact the police engaged in the intimi-
dation tactics alleged by the defendant," including "the length
and circumstances of the interrogation, the defendant's prior
experience with the legal process, and familiarity with Mir-
anda warnings: are reviewed only for clear error. Miller, 474
U.S. at 112, 116; see Fulminate, 499 U.S. at 287.

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16

established in the record, in our view, leads plainly to
the conclusion that the confessions were the product
of a will overborne." Id. at 741-742.
In Beckwith v. United States, 425 U.S. 341 (1976),
this Court embraced the same de novo standard of
appellate review for determinations of voluntariness
made in federal criminal cases that it routinely had
applied to state-court decisions.  In Beckwith, the
Court held that Miranda warnings were not required
before a tax official conducted a non-custodial inter-
view. The Court noted, however, that in "special
circumstances," an individual might be able to raise a
claim of coercion, and in reviewing whether law
enforcement officials' behavior "was such as to
overbear petitioner. will to resist and bring about
confessions not freely self-determined * * * it is
the duty of an appellate court, including this Court,
'to examine the entire record and make an indepen-
dent determination" of the ultimate issue of voluntar-
iness.'" Id. at 347-348 (quoting Davis, 384 U.S. at 741-
742). 5.

___________________(footnotes)           

5 See also Mincey v. Arizona, 437 U.S. 385, 498 (1978) (hold- 
ing, on direct review of state-court decision admitting confes-
sion of suspect interrogated while in hospital intensive-care
unit and barely conscious, that "this Court is under
make' an independent evaluation of the record"); Haynes v.
Washington, 373 U.S. 503, 515 (1963) (holding, on direct review
of decision admitting confession of suspect held incommunicado
for 16 hours, that :"[i]t is well settled that the duty of con-
stitutional adjudication resting upon this Court requires that
the question whether the Due Process Clause of the Fourteenth
Amendment has been violated by admission into evidence of a
coerced confession be the subject of independent determination
here"); Haley, 332 U.S. at 599 (holding, on habeas review of
decision  admitting  confession by 15-year-old detained
incommunicado for over three days, that "the ruling of the

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17

b. The voluntariness question in Miller arose on
habeas review of a state-court determination, but the
same de novo standard of review should apply-and
has been applied by this Court-on appeal of federal
district court determinations. The court of appeals in
Baldwin, however, reasoned that, "[s]ince the rela-
tion between federal and state courts and the relation
between federal appellate and federal trial courts are
not symmetrical, the two questions [regarding
standard of review] need not be answered in the same
way." 60 F.3d at 364. Baldwin cannot be reconciled
with this Court's precedents, and its reasoning
squarely contradicts the reasoning employed in
Miller itself.
As the cases discussed above demonstrate, this
Court has not differentiated between the standard of
review of involuntariness claims applicable to state-
court and federal-court judgments. 6. Beckwith, supra,
was a federal prosecution with no state decision at
issue. In Davis, supra, the, federal court
 
___________________(footnotes)   

trial court and the finding of the jury on the voluntary
character of the confession do not foreclose the independent
examination which it is our duty to make here"); Ashcraft v.
Tennessee, 322 U.S. 143, 147-148 (1944) (requiring "independent
examination" whether 36 hours of continuous questioning by
relays of officers was coercive).

6 Miller expressly disavowed any difference between direct
and collateral review. Miller, 474 U.S. at 110-111 ("many of the
early decisions applying the independent-determination rule in
confession cases came to the Court on direct appeal from state-
court judgments," but the rule of independent review "is no
less firmly established in cases coming to the federal system on
habeas corpus"). Thus, any reliance in Miller on the language
and purpose of Section 2254(d) does not detract from that
decision's applicability to direct review of either state or
federal court judgments.

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18

conducted a fresh evidentiary hearing on federal
habeas review, the Supreme Court thus independently
reviewed not the determination of a state court, but of
the federal district court. Moreover, Miller did not
rest on a perception that state-court determinations
require more searching review, rather, the Court
reiterated its "confidence that state judges, no less
than their federal counterparts, will properly
discharge their duty to protect the constitutional
rights of criminal defendants." 474 U.S. at 117. As
this Court observed in requiring de novo review of
determinations of actual malice in the libel context, it
would "pervert the concept of federalism for this
Court to lay claim to a broader power of review over
state-court judgments than it exercises in reviewing
the judgments of [the lower] federal courts." Bose
Corp. v. Consumers Union of United States, Inc., 466
U.S. 485, 499 (1984). 7.
Baldwin's view that trial courts are better situ-
ated to resolve voluntariness issues and that appellate
courts have little to contribute departs from the
reasoning of Miller. The court of appeals in Baldwin
noted that federal district judges are "closer to the
facts" and "more practiced than appellate judges in
assessing the significance of facts." 60 F.3d at 365.

___________________(footnotes)
                    
7 See also Baldwin, 60 F.3d at 366  (Fairchild, J., concurring
on other grounds) ("I have seen no analysis which justifies
treating voluntariness as an issue of law when a habeas pro-
 ceeding is before a district court, but an issue of fact when a
court of appeals reviews a judgment of a federal district
court."): United States v. Hawkins. 823 F.2d 1020. 1023 n.1
(7th Cir. 1987) ("We see no reason why Miller should not be
applicable to the standard of review we use in direct review
cases when evaluating the ultimate issue of the voluntariness of
a confession.").

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19

The court also voiced the belief that "de novo review
is not necessary to produce a reasonable uniformity of
the legal principles applied within the court's
jurisdiction." Ibid. In Miller, however, this Court
expressly stated that a trial judge "is not in an
appreciably better position" than a reviewing court to
determine whether a confession "was obtained in a
manner consistent with the Constitution." 474 U.S.
at 117. Indeed, this Court reaffirmed that view earlier
this Term in Thompson v. Keohane, 116 S. Ct. 457,
465-466 (1995) ("as in the case of the alleged involun-
tariness of a confession," the trial court's "superior
capacity to resolve credibility issues is not disposi-
tive of the 'in custody' inquiry" for Miranda
purposes). Miller thus distinguished the voluntar-
iness of a confession from more fact-bound issues-
such as a determination of juror impartiality or a
defendant's competency to stand trial-that depend
substantially on "assessments of credibility and
demeanor" and are reviewable only for clear error.
Miller, 474 U.S. at 116-117 (citing Patton v. Yount,
467 U.S. 1025, 1036 (1984); Maggio v. Fulford, 462 U.S.
111, 117 (1983) (per curiam)).
Also, contrary to Baldwin's reasoning, the Miller
Court emphasized the "primary function" of the
appellate court "as an expositor of law" regarding
unconstitutionally coercive government conduct. 474
U.S. at 114 accord Thompson, 116 S. Ct. at 466-467
("'in custody' determinations do guide future de-
cisions"; the "law declaration aspect of independent
review potentially may guide police, unify precedent,
and stabilize the law").  Thus, while the Seventh
Circuit may have "moved decisively to the position
that appellate review of determinations of mixed
questions of fact and law should be governed by the

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20

standard of clear error, and not by the de novo
standard," Baldwin, 60 F.3d at 365, that move cannot
be reconciled with this Court's settled approach in
evaluating the voluntariness of a confession.
2. The Seventh Circuit's position also departs
from that of the other circuits, each of which applies a
de novo standard of review to federal district courts'
determinations whether confessions were obtained in
violation of due process. See, e.g., United States v.
Burns, 15 F.3d 211, 216 (1st Cir. 1994) ("the ultimate
issue of voluntariness is a question of law subject to
plenary review"); United States v. Anderson, 929 F.2d
96, 99 (2d Cir. 1991) ("the voluntariness issue pre-
sents a legal question that we review de novo");
United States v. Bethancourt, 65 F.3d 1074, 1078 (3d
Cir.) ("This court applies plenary review to a district
court's determination whether a confession was given
voluntarily."), cert. denied, No. 95-7691 (Feb. 26, 1996);
United States v. Pelton, 835 F.2d 1067, 1072 (4th Cir.)
("An appellate court must make an independent deter-
mination on the issue of voluntariness."), cert. denied,
486 U.S. 1010 (1988); United States v. Scurlock, 52
F.3d 531, 536 (5th Cir. 1995) ('The ultimate question
of voluntariness is a legal question which we review
de novo."), citing United States v. Restrepo, 994 F.2d
173, 183 (5th Cir. 1993); United States v. Rigsby, 943
F.2d 631, 635 (6th Cir. 1991) (claim that confession
was coerced in violation of due process is reviewed
"de novo"); United States v. Robinson, 20 F.2d 320,
322 (8th Cir. 1994) ("the voluntariness" of a confession
is a legal inquiry subject to plenary review by the
appellate courts") (quoting United States v. Rohr-
bach, 813 F.2d 142, 144 (8th Cir.), cert. denied, 482 U.S.
909 (1987); United States v. Benitez, 34 F.3d 1489,
1495 (9th Cir,) ("we review the voluntariness of a con-

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21

fession de novo"), cert. denied, 115 S. Ct. 1268 (1995);     
United States v. Muniz, 1 F.3d 1018, 1021 (l0th Cir.)
(regarding claim of coercive interrogation, "[w]e
review the court's determination of the ultimate issue
of voluntariness de novo."), cert. denied, 114 S. Ct. 575
(1993); United States v. Blackman, 66 F.3d 1572, 1577
(11th Cir. 1995) ("The district court's ultimate
conclusion on the voluntariness of a confession * * *
raises a question of law to be reviewed de novo."); but
see United States v. Mendoza-Cecilia, 963 F.2d 1467 
(11th Cir.), cert. denied, 506 U.S. 964 (1992); United
States v. Yunis, 859 F.2d 953, 958 (D.C. Cir. 1988)     
(regarding waiver of Miranda rights, "the ultimate
determination of voluntariness and waiver, vel non,
* * * is for this court to make") (quoting United
States v. Poole, 495 F.2d 115, 121 (D.C. Cir. 1974)
(applying same rule to claim that confession was in-
voluntary), cert. denied, 422 U.S. 1048 (1975)). Indeed,
the Seventh Circuit acknowledged in Baldwin that
"[t]he conventional standard for appellate review of
determinations of the voluntariness of a statement
* * * is the de novo standard." 60 F.3d at 364. 8.
3. This Court should intervene to correct the
Seventh Circuit's anomalous approach. The Seventh
Circuit has twice declined to consider the question en
banc notwithstanding the difference of opinion within
that court regarding the correct standard of review.
Compare App., infra, 12a-13a, following United States
v. Baldwin, 60 F.3d 363 (7th Cir. 1995) (applying
clear-error standard, and acknowledging that "[t]his
                   
___________________(footnotes)   
              
8 See also Baldwin, 60 F.3d at 367 (Flaum, J., dissenting
from the denial of rehearing en bane) (recognizing the Seventh
Circuit's "apparent desire to be the most proactive court in the
country on questions of expanding deferential review").

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22

decision * * * creates an intercircuit conflict"),
with id, at 366 (Flaum, J., dissenting from the denial
of rehearing en bane); id. at 367 (Ripple, J., dissenting
from the denial of rehearing en banc); id. at 368
(Rovner, J., dissenting from the denial of rehearing en
bane); United States v. Cichon, 48 F.3d 269, 275 (7th
Cir. 1995) (applying de novo standard); United States
v. Hawkins, 823 F.2d  1020, 1022 (7th Cir. 1987) (same).
The United States suggested rehearing en banc in
this case, and the Baldwin panel decided sua sponte
to poll the court regarding rehearing en bane. 60 F.3d
at 365. The court of appeals' refusal to hear en banc
either this case or Baldwin indicates that court's
commitment to its minority position.
In our view, the appropriate disposition of this case
is summary reversal. The law governing the stan-
dard of review of a voluntariness determination is
firmly established by Miller-a recent precedent that
relied on a consistent course of prior decisions and
that has since informed an analogous standard-of-
review ruling earlier this Term in Thompson. And
the need for correction of the court of appeals' error
is of paramount importance in federal criminal cases.
Confessions play a vital role in law enforcement, as is
illustrated by this case. The government acknowl-
edged in the district court that, without respondent's
confessions to double murder, the juvenile delin-
quency charges against her cannot proceed.
The, standard of review of the district court's
decision that the confessions were involuntary was
critical to the court of appeals' holding that the
confessions cannot be used. The court of appeals
accepted the district court's conclusion that "the
medical staff of the Center saw the prosecution of
D.F. as a part of their work," stating that [a]lthough

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23

the evidence is not at all one-sided, we cannot say that
the court was clearly erroneous." App., infra, 31a.
Under the de novo standard, however, the court of
appeals would have had to reach an independent
determination whether the Center staff crossed the
line between treatment and "coerc[ing] admissions
under the guise of treatment."  Id. at 31a n.20,
Accepting the district court's findings of historical
fact about what was said and done at the Center, a
question of characterization remains of whether law
enforcement purposes had anything to do with respon-
dent's "spontaneous[]" disclosure in group therapy
that she had killed her cousins, or with her sub-
sequent confessions. Id. at 8a. That issue cannot be
resolved without considering the court's role in
defining the types of government action that, in the
circumstances of the case, are incompatible with due
process. Miller, 474 U.S. at 450. Similarly, without
reaching its own judgment on the issue, the court of
appeals deferred to the district court's conclusion
that not only respondent's original confession, but its
elaboration 10 subsequent times, were all involun-
tary. App., infra, 32a. As we have shown, however, it
is the "duty of an appellate court * * * to examine
the entire record and make an independent determin-
ation of the ultimate issue of voluntariness" before
excluding a confession as the improper product of
coercive government action. Beckwith, 425 U.S. at
348 (internal quotation marks omitted). Such a deter-
mination is particularly important in a potentially
recurring context such as this, where state or local
mental health professionals hear confessions to
crimes in the context of therapy, and must then
determine whether and how to provide that
information to the criminal justice system.

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24

Accordingly, this Court should reverse the judgment
of the court of appeals, and remand the ease for
reconsideration under a de novo standard of review. 9.
       
CONCLUSION

The petition for a writ of certiorari should be
granted, and the judgment of the court of appeals
should be summarily reversed.
Respectfully submitted. 

DREW S. DAYS, III
Solicitor General
         
JOHN C. KEENEY
Acting Assistant Attorney
          
MICHAEL R. DREEBEN
Deputy Solicitor General
          
CORNELIA T.L. PILLARD
Assistant to the Solicitor
General
          
JOEL M. GERSHOWITZ
Attorney

MARCH 1996       
                
___________________(footnotes)

9 There is no need to hold the petition here for the dispo-
sition of Ornelas v. United States, cert. granted, No. 95-5257
(to be argued Mar. 26, 1996). That case presents the question
whether a court of appeals, accepting as not clearly erroneous
the facts found by the district court, is required to review de
novo the district court's conclusion that those facts provided
reasonable suspicion justifying an investigatory stop and
probable cause to search without a warrant. In our brief in
Ornelas, we argue that a court of appeals should apply a de
novo standard of review in that context. The Court's decision
in Ornelas might prompt the Seventh Circuit to abandon its
misguided approach to review of coerced-confession claims.
We believe, however, that the decision below is so squarely
foreclosed by this Court's decisions requiring independent
appellate review of coerced-confession claims that summary
reversal is the more appropriate course.

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APPENDIX A

UNITED STATES COURT OF APPEALS
SEVENTH CIRCUIT

No. 94-2900

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

v.

D.F. DEFENDANT-APPELLE 

[ARGUED JAN. 5,1995
DECIDED AUG. 25,1995 
REHEARING AND SUGGESTION FOR
REHEARING EN BANC DENIED NOV. 17, 1995]

Before: RIPPLE and ROVNER, Circuit Judges, 
and MILLER, District Judge.*

RIPPLE, Circuit Judge.

On January 5, 1992, a one-year-old- girl was found
dead in her home; six days later her two-year-old
sister was found dead there. D.F., a juvenile cousin of
the children, was charged, on November 17, 1993, with
two counts of second degree murder. See 18 U.S.C. 
1111, 1153 and 5031. Following a two-day suppression
hearing, the magistrate judge recommended that
                 
___________________(footnotes)

* The Honorable Robert L. Miller, District Judge for the
Northern District of Indiana, sitting by designation.

(1a)

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D.F.'s statements to mental health workers be
suppressed because they were privileged communi-
cations. The district court agreed that the state-
ments should be suppressed, but based the suppres-
sion on the involuntariness of the statements. The
government has appealed that decision. For the
reasons set forth in to following opinion, we affirm
the judgment of the district court.
          
I

BACKGROUND

A. Facts

In 1992, when D.F. was twelve years old, she was
living with her aunt on the [redacted] reservation in
Wisconsin. 1. On January 5 of that year, her one-year-
old cousin was found dead. On January 11 her two-
year-old cousin also was found dead. The medical
examiner attributed the first death to Sudden Infant
Death Syndrome and the second to Influenza A. A
second medical examiner determined, however, that
the deaths could have, been caused by suffocation.
On December 4, 1992, D.F. was "admitted, against
her will, by her aunt and legal guardian to the county
mental health facility, [redacted] Mental Health
Center ("Center"). She remained in the Center until

___________________(footnotes)
                                     
1 D.F. is a juvenile. The district court assumed jurisdiction
under 18 U.S.C. 1153, which gives the court jurisdiction over
a charge of murder committed by an Indian on a reservation,
(We employ the word "Indian" to conform to the statutory lan-
guage. In our normal usage, we would employ "Native  Ameri-
can."). This case is before us under seal. We have redacted
the names of persons and places involved, using the same for-
mat as did the district court. See United States v. D.F., 857
F. Supp. 1311 (E.D. Wis. 1994).

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May 1993. D.F. had a history of assaultive behavior
and drug and alcohol abuse; there is also evidence that
she had suffered physical and sexual abuse during her
childhood. At the time she was admitted, she was
under a [redacted] Tribal Court order requiring
D.F.'s guardian to seek mental health services for
her. 2. The [redacted] County Department of Social
Services also had recommended that D.F. be placed at
the Center. 3.
D.F. was admitted to a locked ward for adolescents
and was placed in the residential treatment program
at the Center. Patients' freedom of movement while
on the ward was restricted severely. In addition to
the doors being locked, there were screens securing
the windows and patients had to be escorted when
they left the locked area. All patients were observed

___________________(footnotes)
                                    
2 The [redacted] Tribal Court Order of August 17, 1982,
required D.F.'s legal guardian to seek mental services for D.F.
and ordered D.F. to complete the counseling. Defendant's
Ex. 1. The State of Wisconsin provides services to [redacted]
Indians who voluntarily submit to civil commitment. United
States v. Teller, 762 F.2d 569,577 n. 5 (7th Cir. 1985) (citing 70
Op. Atty.Gen.Wisc. 219 (1981)).

3 The government described D.F.'s admission to the Center
as "voluntary" because it was approved by her legal guardian
(her aunt) and was not court-ordered. D.F. calls her admission
"involuntary' because she opposed her guardian's decision to
place her at the Center. D.F. asserts that the record bears out
the district court's finding that her commitment was involun-
tary. The district court noted that, although D.F.'s aunt was
technically responsible for her admission to the Center, she was
heavily influenced by a pending court order and by the Depart-
ment of Social Services' suggestion that D.F. be placed in the
Center. The district court also noted that there is no evidence
that D.F. played any role ill the admission. See 857 F. Supp. at
1314.

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by staff at least hourly, On the one occasion when
D.F. ran away from the Center, she was returned
forcibly by the police the next day.
D.F. was first placed in the substance abuse
program. She remained in that treatment until late
January 1993. The treatment primarily was overseen
by social worker R.M. When D.F. was next placed in
the Seasons program for treatment of her behavioral
problems, the treatment was overseen primarily by
B.K. In each program, D.F. was under the care of a
treatment team which included a psychiatrist, a
social worker, a registered nurse and other thera-
pists. The plan of treatment included a point system
to encourage good "behavior and program partici-
pation. The system was based on levels which utilized
privileges and punishment. Patients on the lowest
level ("base zero") were confined to their rooms in
only hospital gowns and no shoes, and were forbidden
to talk to other patients; those on higher levels were
allowed to have their own clothes and to interact with
others as they saw fit. Patients were encouraged to
talk and to write about their problems. They could
earn points, and thereby move up levels, for having
conversations with their assigned staff member at
least once a shift. On the other hand, they lost points
for refusing to answer questions or to write in a
journal. Medication was also administered to patients
by staff decision D.F. was given Thorazine, Ativan,
and Zoloft at one time or other.
Prior to her admission to the ward, D.F. had be-
come a suspect in the deaths of her two young cous-
ins. Staff at the Center were made aware of this
suspicion in mid-December, 1992, when a social work-
er from [redacted] County Human Services notified
Center staff. Tr. at 284 Ex. B-2. After that time, the

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Center staff often reminded D.F. about the state law
reporting requirements and the consequences of
D.F.'s statements or admissions. Nevertheless, in
line with the hospital policy of encouraging patients
to write about and to discuss their problems, D.F.'s
treatment was designed to develop trust in staff and
to encourage D.F. to reveal her secrets and to speak
openly with staff about physical harm she had caused
other children. D.F. was questioned directly "by staff
whether she had ever murdered anyone, and was
asked repeatedly to make lists of all the people she
had ever harmed.
One week after her arrival at the Center, D.F. was
informed that her records as an alcohol abuser were
confidential, but that any information about suspected
child abuse or neglect was not protected. She signed
a form indicating that she understood. 4. Ex. B-1. In
                            
___________________(footnotes)

4 Concerning abuse, the confidentiality form stated "Feder-
al laws and regulations do not protect any information about
suspected child abuse or neglect from being reported under
State law to appropriate State or local authorities." Ex. B-1.
The government contends that statements not relating to child
abuse could be reported, at the social worker's discretion, to
social services, the juvenile court, and the school. Tr. at 128-31.
The government interprets state law, Wis.Stat.Ann. 48.981,
to require the facility to report suspicions that a child-patient
had been abused, but to permit it to report that a child-patient
had perpetrated the abuse of other children. D.F. questions
the government's reading of Wis.Stat. 48.981, and notes that
the district court rejected that interpretation. The district
court appears to have been of the view that D.F.'s statements
to the staff could not be reported to law enforcement author-
ities. In any case, D.F. submits, no staff member suggested
that her admissions might be reported to police or the court;
"the local child protective services agency and other spon-
sors of the Seasons program were the only organizations
mentioned."

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addition, D.F. was warned on several occasions that
any disclosures about hurting or killing a child would
have to be reported to Protective Services. 5. D.F. did
not discuss any of her past assaultive behavior for
several months. On one occasion, D.F. told a staff
member that she couldn't talk staff because they
were required to report what she said. Nevertheless,
during her stay at the Center, D.F. did make several
admissions regarding past assaultive behavior. In
January 1993, D.F. admitted that she had abused three
cousins. However, after signing a release to permit
disclosure of the statements to social service author-
ities, D.F. was not prosecuted for these assaults by
the [redacted] County tribal authorities. Instead, she
was told that Human Services had decided tentatively
to "shelve" any charges or consequences for her
assaults. Furthermore, she was promised that no
harm would come to her as a result of these admis-
sions as long as she continued to make progress and
to follow treatment expectations.
Some of the staff at the Center believed that they
were under a legal obligation to report any admis-
sions of child abuse to the authorities. Because they
believed that any admission on the part of D.F. would
have substantial criminal consequences for her, some
of the staff also tried to protect her from the conse-
quences of any confessions by arranging for her to
undergo a "5th Step" session with a local minister.
They anticipated that D.F.'s conversation with the
minister would be privileged and therefore would give
her a "safe harbor" where she could make the antici-

___________________(footnotes)
                                         
5 The government points out that all the Center staff
having contact with D.F. were covered directly or indirectly
by the reporting requirements.

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pated disclosures without her having to risk a report
to the authorities. However, the session, which was
held on March 16, 1993, apparently did not produce the
hoped-for result. Tr. at 42-43; 297-98; 337 Ex, A-1.
There were also discussions among the staff as to
whether the staff could report D.F.'s admissions to
authorities.
Other staff members at the Center believed that
D.F. would benefit from taking responsibility for her
wrongs and being held responsible for them. Some
staff members at the Center were anxious to ensure
that D.F.'s statements were reported accurately.
One staff member, D.F.'s primary social worker in
the Seasons program, B.K., prepared memoranda on
her home computer in order to refresh her memory
for the purposes of treatment or testimony in court. 6.
After D.F.'s confession, staff at the Center cooper-
ated with the F.B.I. D.F. was never informed of this
cooperation, and was encouraged to continue to
discuss the incident in therapy sessions.

___________________(footnotes)
                                                   
6 On April 5, after D.F.'s admission, B.K. used her home
computer to write a memorandum recording D.F.'s state-
ments, often using quotation marks. She prepared other such
memoranda about D.F., too, to "trigger for myself my impres-
sions as a therapist at the time." R. 30 at 367. B.K. conceded
that a secondary motive for the reports was to refresh her
recollections for later testimony. Concerning whether her pur-
pose in making the written notes was to assist D.F.'s therapy or
to assist law enforcement, B.K. said:
  
And I repeat that [that] purpose would be so far
removed from my primary [therapeutic] purpose as to
be, yeah, in the back of my mind, but certainly not up
front as a major concern at the time I wrote these notes.

Tr. at 368.

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On April 5, 1993, four months after her admission to
the Center, D.F., at that time fourteen years old,
admitted to having killed her two young cousins. In a
group therapy session run by B.K., D.F. spontan-
eously told the group that she had killed her cousins.
Several hours later she told another staff member of
the murders, and of her relief in the disclosure
because the secret had been "eating her up." During
a treatment team meeting the next day, when B.K.
told the other therapists of D.F.'s statement, another
staff member immediately reported D.F.'s confession
to Child Protective Services, a division of the [redac-
ted] County Department of Social Services, which in
turn notified the F.B.I. R. 29 at 53. The resulting
F.B.I. investigation led to the charges in this case.
D.F. made nine other-confessions while a patient at
the Center.  
On April 22, 1993, an appointed attorney advised
D.F. not to speak to anyone about her April 5 admis-
sion; she then signed a statement involving her Fifth
Amendment right against self-incrimination. Tr. at
65-66; 74-75; 358; 364-65; Ex. A-5; Def's Ex. 12. D.F.
claims B.K. ignored her invocation of her Fifth
Amendment rights; the government disagrees, noting
that B.K. canceled a planned interview between the
F.B.I. and D.F. In fact, stated the government, no law
enforcement officer Interrogated D.F. or heard her
confessions. D.F. also states that "therapists were
cooperating with law enforcement not later than Apr.
16." Appellee's Br. at 12. The government argues
that there is no evidence that anyone other than B.K.
"cooperated" with law enforcement.

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B. Judicial Proceedings

D.F. was charged with two counts of murder in the
second degree, in violation of 18 U.S.C. 1111, 1153,
and 5031. Prior to trial, D.F. moved to suppress her
confessions on the ground that they were coerced in
violation of the Fifth Amendment's privilege against
self-incrimination and guarantee of due process. The
magistrate judge recommended that the statements
be suppressed, not on the basis of the right against
self-incrimination, but on the ground that the state-
ments were protected from disclosure by a psycho-
therapist-patient privilege.
The district court agreed that the statements
ought to be suppressed. United States v. D.F., 857
F. Supp. 1311 (E.D. Wis. 1994). It declined to base its
ruling either on the psychotherapist-patient privilege
or on non-compliance with Miranda. Instead, the
district court grounded its suppression of D.F.'s
statements as involuntary under the Due Process
Clause of the Fifth Amendment. Focusing on the
holding of the Supreme Court of the United States in
Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515,
521-22, 93 L.Ed.2d 473 (1986), the district court rejec-
ted the view that the strictures of the Fifth Amend-
ment's Due Process Clause are applicable only when
the impermissible pressure is brought by law enforce-
ment personnel. Rather, it read Connelly to permit
the suppression of a statement as involuntary when
impermissible pressure had been brought by others
working on behalf of the state: "I only suggest that
that inquiry can go beyond the actions of traditional
law enforcement' personnel to the actions of the
juvenile court system, the legislature, other govern-

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ment officials, and the reasonable feelings of the
defendant." 867 F.Supp. at 1325.
The court reviewed the evidence and made factual
findings concerning the staff members' views of
therapy. The district court noted that some of the
Center staff "took a more expansive view of 'therapy'
and 'recovery.' Staffers subscribing to this expanded
view felt that D.F. would not recover unless and until
she took responsibility for her wrongs and was held
accountable for, them, in a court of law if necessary."
Id. at 1316. It also found that R.M.'s promise to D.F.
"sent two very clear messages: (1) D.F.'s frank
disclosure of her past behavior would be generously
rewarded, and (2) she would likely be granted leniency
on any future disclosures." Id. "On April 5, 1993, she
broke down and confessed." Id. at 1317,
The district court also assessed the Center's
relationship with other governmental organizations.
The court noted that the staff knew of D.F.'s sus-
pected involvement in the deaths of her cousins and
encouraged D.F. to talk about her past crimes. It
also found "extensive evidence in the record of the
close relationship between staff at the Center and
Protective Services, the juvenile court system, and
the F.B.I." Id. at 1326. It noted that the record estab-
lished that "many of the staff at the Center saw
themselves as an arm of law enforcement." Id.
"Moreover, the evidence suggests that the warnings
[of the consequences of a confession] were minimal,
and that, in any event, they never included any
mention of D.F.'s Fifth Amendment privilege of self-
incrimination." Id.
The court then-concluded that D.F.'s will was
overborne at the time she confessed:

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After considering the totality of the circum-
stances, I conclude that D.F.'s inculpatory state-
ments were secured through psychological coer-
cion and were not the "product of a rational intel-
lect and free will." Blackburn [v. State. of Ala-
bama], 361 U.S. [199] at 208,80 S. Ct. [274] at 280
[4 L.Ed.2d 242 (1960)]. Given the circumstances
under which they were employed, the various
"encouragement" techniques employed by the
staff were highly coercive. A reasonable person
of D.F.'s age, intellect, and mental state would
have felt coerced. In sum, D.F.'s confession was
not "voluntary" within the meaning of the Due
Process Clause of the Fifth Amendment.

Id.         

II

DISCUSSION

A. Threshold Matters

1. Jurisdiction

In this case, the United States appeals a sup-
pression order granted by the district court prior to
D.F.'s trial. This court's review of the interlocutory
decision is based on 18 U.S.C. 3731, which states
that "[a]n appeal by the United States shall lie to a
court of appeals from a decision or order of a district
court suppressing or excluding evidence." 7.  See
United States v. Rodriguez, 975 F.2d 404, 408 (7th

___________________(footnotes)
                                            
7 Because an expanding body of federal law developed from
suppression rulings made without the benefit of appellate re-
view, in 1968 Congress amended the Criminal Appeals Act (18
U.S.C. 3731) to permit the government to appeal orders
granting motions to suppress evidence made before the trial.

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Cir. 1992) (stating that  3731, permitting govern-
ment's interlocutory appeal from suppression orders,
creates exception to finality requirement for appeal
in 28 U.S.C. 1291). In responding to the appeal, an
appellee may rely on any ground in support of the
judgment. United States v. Finn, 502 F.2d 938, 940
(7th Cir. 1974) (citing Langnes v. Green 282 U.S. 531,
51 S.Ct. 243, 75 L.Ed 520 (1931) and Dandridge v.
Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L.Ed.2d 491
(1970)). 8.

2. Standards of Review

Several standards of review are applicable to our
consideration of the district court's granting of the
suppression motion.
We must assess the district court's understanding
of any applicable substantive legal standard on a de
novo basis. We owe the district court no deference on
pure questions of law. United States v. Doubet, 969
F.2d 341, 343 (7th Cir. 1992) ("To the extent that legal
determinations factor into a suppression ruling, they
are subject to de novo review."). On the other hand, a
district court's fact-finding in support of its dispo-
sition of a pretrial motion to suppress is reviewed
under a clearly erroneous standard. United States
v. Church, 970 F.2d 401, 403 (7th Cir. 1952), cert.
denied, -U.S. -, 113 S.Ct. 1009, 122 L.Ed.2d 157
(1993); see also United States v. Garlock, 19 F.3d 441,

___________________(footnotes)
       
8 See also United States v. Shameizadeh,  41 F.3d  266, 267
(6th Cir. 1994); United States v. Becker, 929 F .2d 442, 447 (9th
Cir.), cert. denied, 502 U.S. 862, 112 S.Ct. 183, 116 L.Ed2d 145
(1991); United States v. Cahalane, 560 F.2d 601, 608 (3d Cir,
1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L. Ed.2d 796
(1978); United States W. Swarovski, 557 F.2d 40 (2d Cir. 1977),
cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 796 (1978).

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442 (8th Cir. 1994) (holding district court did not err
in factual finding concerning state actors). This
circuit recently determined that the voluntariness of
a confession is assessed on appeal under the clear
error standard of review. See United States v. Bald-
win, 60 F.3d 363 (7th Cir. 1995). That holding binds
this panel as the law of the circuit.

B. Submissions of the Parties

1. The Government                             

The government submits that the district court
erred in suppressing D.F.'s confessions. It contends
that her statements were voluntary because they
were not coerced by any government conduct. A
statement is voluntary, the government asserts,
unless the defendant's will was overborne at the time
of confession by coercive police activity. Colorado v.
Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 520, 93
L.Ed.2d 473 (1986). To determine whether that stan-
dard has been met, a court must assess the totality of
the circumstances. See United States v. Rutledge,
900 F.2d 1127, 1129 (7th Cir.), cert. denied, 498 U.S.
875, 111 S. Ct. 203, 112 L.Ed.2d 164 (1990). In this
regard, continues the government, the record does
not support the claim that Center personnel were
agents of law enforcement. The government insists
that the district court clearly erred in finding that
Center staff (1) worked closely with law enforce-
ment, and (2) reported immediately D.F.'s confession
to Protective Services.  It points out that B.K.
discussed the confession at a team meeting, but that
another member of the team reported it to Protective
Services. It also contends that D.F. made eight
confessions to staffers before there was any contact
with the F.B.I. The government insists that the

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Center staff questioned D.F'. for therapeutic reasons
only, not to induce her to incriminate herself. The
staff did not view itself as an arm of law enforcement,
eliciting a confession. B.K. said:

[W]e wanted to give her a vehicle for being able to
talk about these things so that she could get past
this very difficult time in her life and proceed in
treatment. But we had to find a way to do that
without setting it up so that she would have to
tell us and we would have to tell the authorities.

Tr. at 42. According to the government, only B.K. had
conversations with the F.B.I., and only after being
advised" that it was appropriate for her to do so. She
confirmed the information about D.F.'s initial confes-
sion provided to the F.B.I. by the county Department
of Social services, and discussed the possibility of
setting up a meeting-between the F.B.I. and D.F. It
is the government's view that the district court
incorrectly characterized the staff as "surrogate
investigators." 857 F Supp. at 1325.
Turning to the other elements of coercion, the
government argues that D.F.'s decision to confess
was her own and was spontaneous. She interjected
her confession in a group therapy session, taking her
social worker completely by surprise. Tr. at 4647.
She told another staffer that night. Several days
later, she assured therapist R.M. that she understood
there would be consequences to her confession.
There was no official coercion she confessed in re-
sponse to internal pressure. In fact, Center staff
were seeking ways to prevent D.F. from having to
face any legal consequences for her acts. There is no
evidence that the Center used highly coercive tech-
niques to encourage her to admit to crimes, as the

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district court claimed. 857 F.Supp. at 1325. D.F. was
encouraged to talk about her problems, but was not
coerced.
The government also submits that the court erred
in finding that D.F.'s placement at the Center was
"influenced . . . by a pending court order." 857 F.
Supp. at 1314. In the government's view, D.F.'s aunt,
desperate to get help for D.F., chose the Center
without the help of the juvenile courts. The decision
to defer prosecution of D.F. for abuse was [redacted]
County's, not a negotiated outcome with Protective
Services, as the district court asserted.
The government also criticizes the district court
for ignoring the ten subsequent consistent confes-
sions made by D.F. The court found that they were
the product of staff pressure on her to expand upon
the confession, and did not analyze them individually.
This, says the government, was clear error. Subse-
quent confessions following a coerced confession can
be voluntary where circumstances change. 9. Oregon

___________________(footnotes)
           
9 The government characterizes as voluntary the five
confessions to nurses' assistants between April 5 and 17; D.F.
initiated two, and responded to general questions like "what's
the matter?" by confessing in the other three. According to
the government, D.F.'s discussion with R.M., although initiat-
ed by him, was a voluntary confession in which she said she
understood what she was doing. And, at the family therapy
meetings, her confessions were also voluntary. Although not
spontaneous, they were made in a noncoercive environment
and were brought out for therapeutic purposes. On April 14,
1993, when her sister denied that she was capable of having
killed the children, D.F. insisted she committed the murders.
The government also contends that the confessions made on
April 23 and May 10 were voluntary-even though they were
made after D.F. invoked her Fifth Amendment privilege and
after B.K. had discussed the previous confession with the

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v. Elstad, 470 U.S. 298, 310-11, 105 S. Ct. 1285, 1293-94,
84 L.Ed.2d 222 (1985). In the government's view, D.F.
had a clear ability to resist pressure; she finally con-
fessed because of her own conscience, not official
coercion. Her will was not overborne. She made a
deliberate choice to speak her mind. "The Constitu-
tion has not yet been interpreted to protect people
against themselves." Johnson v, Trigg, 28 F.3d 639,
642 (7th Cir. 1994).  

2. D.F.                                  

D.F. submits that the district court understood
that coercive official action was required before a
Fifth Amendment violation could be found, and that
such coercion is not the exclusive province of the
police department. In this case, D.F. was committed
to the custody of county employees in a locked county
institution for four months before she confessed.
Relying on DeShaney v. Winnebago County Depart-
ment of Social Services, 489 U.S. 189, 195 n. 1, 109
S. Ct. 998, 1002 n. 1, 103 L.Ed.2d 249 (1989), D.F.
asserts that county employees are state actors for
purposes of the Fourteenth Amendment Due Process
Clause, and surely must be so categorized for the
Fifth Amendment, too. Here, she points out, the coer-
cion came in the form of repeated questions, a point
system of privilege and punishment, and inducements.
D.F. submits that the government's "real argument
is that these actions, which the government presum-
ably would concede would meet the Connelly thres-
hold if police officers had done them, are not official
coercion because of the motives and job titles of those

___________________(footnotes)
                  
F.B.I.- because there was no evidence that B.K. sought to elicit
anything from D.F. on behalf of law enforcement. 

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who in fact acted." Appellee's Br. at 29-30. But, D.F.
insists, these Center employees are government
agents and thus "state actors" like sheriffs and police
officers. D.F. notes that, in Connelly, the defendant's
confession to an off-duty policeman was. "coerced" by
the "voice of God," not by police activity. The Court
held that only state coercion, not internal coercion,
was sufficient to invoke the strictures of the Fifth
Amendment. However, D.F. contends, Connelly "left
room for the atypical case of state coercion, like this
one; when it referred time and again more broadly to
state action." Appellee's Br. at 31 (citing Connelly,
479 U.S. at 164-65, 107 S. Ct. at 520-21).
According to D.F., Connelly does not require an
examination of the state employees' motives. Rather,
it requires a focus on their activity. The proper
inquiry is, "were the statements obtained through
coercive means, as gauged 'from the perspective of a
reasonable person in the defendant's position at the
time of the statement.'" Appellee's Br. at. 33 (quoting
United States v. Montgomery, 14 F.3d 1189, 1194 (7th
Cir. 1994)). D.F. points to factors indicative of the
involuntariness of her confession the commitment to
a locked mental hospital away from familiar people
and surroundings; the [redacted] Tribal Court order;
the staffs complete control of her life on the ward; the
degrading disciplinary techniques; psychoactive
drugs; strip searches; the suicide watch on her four-
teenth birthday and at other times the direct ques-
tions about her abuse and possible murder of small
children. 10. D.F. reiterates the promises made to

___________________(footnotes)

10 D.F. points several times to the demand that she list the
persons she had harmed physically, a demand made of her
right after "KKK"-a racist message probably aimed at her-

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18a

induce her compliance with therapy and questioning,
and the complete lack of Miranda warnings. She
contends that the district court's decision on volun-
tariness is thus well grounded in the overall effect of
four months of "this barrage of inducements, decep-
tion, [and] psychological ploys," that led D.F. to trust
the staffers. Appellee's Br. at 36-37.
D.F. describes her treatment as a "mixed mes-
sage." She was given advice on confidentiality and
cautioned about admitting child abuse, but was also
pushed actively to make those admissions. Her first
primary therapist, R.M., admitted the mixed signal
(R. 30 at 324, 350, 351-52) and the district court
agreed. 857 F. Supp. at 1317. D.F.'s actions reflected
her confusion about whether she should speak freely.
On March 2, 1993, however, R.M. promised her that, if
she continued to make progress and to participate
sincerely in therapy sessions, [redacted] County
authorities would not prosecute or take other adverse
action against D.F. for the injuries she had caused
younger children. R. 30 at 327-29 Ex. B-5. The
district court found this promise significant; it
indicated that she would be rewarded and treated
leniently for her frank disclosures. 857 F. Supp. at
1316. One month after the promise, D.F. confessed.

C. Analysis

The Fifth Amendment provides that no person shall
be deprived of life, liberty, or property, without due
process of law. The admission of an involuntary con-
fession violates due process. A confession will be

___________________(footnotes)                                               

had been written on the girls' bathroom mirror, and everyone
was being punished. D.F. claims she was particularly vulner-
able then, and that the staff's demand was coercive.

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19a

found to be voluntary only if the government can
demonstrate that, under the totality of the circum-
stances and by a preponderance of the evidence, it was
not secured by the government through psychological
or physical intimidation, but rather was the product
of a rational intellect and free will. United States v.
Montgomery, 14 F.3d 1189, 1194 (7th Cir. 1994).
In Colorado v. Connelly, 479 U.S. 157, 107 S. Ct.
515, 93 L.Ed.2d 473 (1986), the Supreme Court reaf-
firmed a requirement that some variation of police
"overreaching" must be present before a defendant's
confession can be labeled involuntary and subse-
quently suppressed. Justice Rehnquist stated in his
opinion for the majority that "[we] hold that coercive
police activity is a necessary predicate to the finding
that a confession is not `voluntary' within the mean-
ing of the Due Process Clause of the Fourteenth
Amendment." Id. at 167, 107 S. Ct. at 522. The Court
surveyed the cases over the past fifty years and
summarized:

Absent police conduct causally related to the
confession, there is simply no basis for conclud-
ing that any state actor has deprived a criminal
defendant of due process of law. Respondent
correctly notes that as interrogators have turned
to more subtle forms of psychological persuasion,
courts have found the mental condition of the
defendant a more significant factor in the "volun-
tariness" calculus. But this fact does not justify
a conclusion that a defendant's mental condition,
by itself and apart from its relation to official
coercion, should ever dispose of the inquiry into
constitutional "voluntariness."

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20a

Id. at 164, 107 S. Ct. at 520 (citation omitted). The
Court stated that there must be an "essential link
between coercive activity of the State; on the one     
hand, and a resulting confession by a defendant, cm the
other." Id. at "165, 107 S. Ct. at 521. It underscored the
"state actor" requirement by stating:

The most outrageous behavior by a private party
seeking to secure evidence against a defendant
does not make that evidence inadmissible under
the Due Process Clause. 

Id. at 166, 107 S.Ct. at 521.
We believe that the district court was correct
insofar as it believed that, in assessing the volun-
tariness of a confession, the holding of Connelly does
not restrict the protection of the Fifth Amendment's
Due Process Clause to the actions "of law enforce-
ment personnel." Connelly left undisturbed-"two of
the Court's earlier cases in which the actions of non-
police actors had been held subject to the constraints
of the Fifth Amendment and therefore implicated the
protection of Miranda. 11. In Estelle v. Smith, 451
U.S. 454, 101 S. Ct. 1866, 68 L.Ed.2d 359 (1981), the
Court held that a court-appointed psychiatrist must
give Miranda warnings before questioning a prison-
er. Although the psychiatrist had been appointed for

___________________(footnotes)

11 These cases were decided in the context of Miranda.
Therefore, strictly speaking, they deal with the right against
self-incrimination, also protected by the Fifth Amendment.
However, "Miranda protects defendants against government
coercion leading them to surrender rights protected by the
Fifth Amendment." Connelly,  479 U.S. at 170, 107 S.Ct. at 523.
Therefore, they are helpful in delineating the nature of gov-
ernmental action that triggers the protection of the Due Pro-
cess Clause in the context of interrogations.

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21a

the "limited, neutral purpose of determining [the
defendant's] competency to stand trial," id. at 465, 101
S. Ct. at 1874, the government sought to introduce his
observations, and findings for the "much broader
objective" of assessing the defendant's eligibility for
the death penalty. Id. The Court held that the
statement was inadmissible during the sentencing
phase of the trial, The Fifth Amendment privilege
against self-incrimination, the Court wrote, "'does
not turn upon the type of proceeding in which its
protection is invoked, but upon the nature of the
statement or admission and the exposure which it
invites.'" Id. at 462, 101 S. Ct, at 1873 (quoting In re
Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L.Ed.2d 527 (1967)).
The Court had no difficulty in assuming that the
psychiatrist, although clearly not a government offi-
cer, and certainly not a prosecutorial officer, became,"
by virtue of his court appointment, a state actor. 12.
The other case, Mathis v. United States, 391 U.S. 1,
83 S. Ct. 1503, 20 L.Ed.2d 381 (1968), held that an IRS
agent must give warnings before questioning a
prisoner. The Court noted that tax investigations,
although not necessarily criminal at the outset, often
later become criminal. Id. at 4, 88 S. Ct. at 1504-05.
The Court did not question whether the agent, al-
though not conducting a criminal investigation, was a
state actor whose actions triggered the protection of
the Fifth Amendment.
On the other hand, we do not believe that Connelly
can be read as standing for the proposition that any

___________________(footnotes)                                  

12 Accord Battie v. Estelle, 655 F.2d 692 (5th Cir. 1981)
(holding that testimony elicited by a court-appointed psychi-
atrist was inadmissible during the penalty phase of a capital
case unless Miranda warnings had been given).

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22a

"state actor" can trigger the concerns of the Fifth
Amendment. Because the focus must be on the
"nature of the statement . . . and the exposure which
it invites," Smith, 451 U.S. at 4621101 S. Ct. at 1873, it
is well established that the mere government employ-
ment of the questioner, standing alone, does not
necessarily make one a "state actor" for this Fifth
Amendment purpose. On this point the circuits have
spoken with one voice, even if the application of the
principle has, in some cases, been less than clear. In
United States v. Webb, 755 F.2d 382 (5th Cir.. 1985),
the defendant, knowing that he was implicated in a
murder, fled the CID offices of the military base
where he was stationed. He was discovered on a
communications tower and threatened suicide. An
Army psychiatrist was called, and he engaged Webb in
a continuing conversation in order to prevent him
from jumping. While talking to the psychiatrist,
Webb confessed to the crime. The Fifth-Circuit held
that the psychiatrist's talk with Webb was not an
interrogation. It also held, in the alternative, that the
psychiatrist, although employed by the United States
Army, was not a law enforcement officer. His talk
with Webb had but one purpose-to save Webb's life.
755 F.2d at 391-92. See also United States v. Moreno,
36 M.J. 107 (C.M.A.1992) 13. (finding that state social

___________________(footnotes)                                      

13 The United States Court of Military Appeals, from which
this decision emanated, has been redesignated the "United
States Court of Appeals' for the Armed Forces" pursuant to the
National Defense Authorization Act for Fiscal Year 1996,
Pub.L. 103-337, 924, 108 Stat. 2831. Also, the Court of Mili-
tary Review is now called the "Court of Criminal Appeals." We
follow the lead of the Supreme Court, see Ryder v. United
States,-U.S-, n. 1, 115 S.Ct. 2031, 2034 n.1, 132 L.Ed.2d
136 (1995), and adhere to the former names in this opinion.

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23a

worker, hearing accused's confession, was not acting
as "agent" of military investigators). 14. Similarly, in
United States v. Borchardt, 809 F.2d 1115 (5th Cir.

___________________(footnotes)

14 Moreno followed the same line of reasoning in a counseling
setting. In this case a military man accused (and later con-
victed) of the sexual abuse of his stepson confessed to a state
social worker during an interview in her office. He had gone
to the interview eight days after the military investigation had
been concluded and charges had been brought against him.
The social worker had explained to him that she was subject to
a court subpoena and could be compelled to testify about the
interview, but that her agency would recommend probation if
he were to make good progress in a rehabilitation program.
Both the military judge and the Court of Military Review
concluded that her investigation was sufficiently separate from
the military investigation that she was not obliged to advise the
appellant of his rights under the Fifth Amendment or under
Article 31 of the Uniform Code of Military Justice, 10 U.S.C.
831, a rights-warning requirement similar to, but broader
than, Miranda. The Court of Military Appeals affirmed the
earlier decisions after finding that the state social worker had
not made improper threats or promises, and that the appellant
had chosen to go to the social worker's office and to be
interviewed by her. 36 M.J. at 112. The court noted partic-
ularly that the social worker did not consider herself "a law
enforcement officer or on a law enforcement mission," and
"was so far from acting as an agent of the military that the
information had to be extracted from her by court process."
Id. at 115. Although holding that the state employee had no
obligation to advise the appellant of his rights under Miranda
or Article 31 prior to the interview, the Court commented:

[W]e hasten to point out that, had [the social worker] been
functioning as a mere conduit for military authorities or
had there appeared to be some sort of tacit understanding
designed to subvert the purposes of Article 31, we would
have had little difficulty in reaching a very different
conclusion.

Id. at 117.

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24a

1987), the Fifth Circuit held that a nurse employed by
a municipal hospital was not a government officer for
purposes of the Fifth Amendment when she asked a
federal prisoner-patient questions that had as their
sole purpose the eliciting of information for the
purposes of treatment. 809 F2d "at 1118-19. In both
Webb and Borchardt, the person asking the questions
was employed by a government entity. Each asked
questions for the sole purpose of assisting the defen-
dant with a medical problem. Accordingly, the ques-
tions did not implicate the strictures of the Fifth
Amendment.
The Ninth Circuit dealt with a similar situation in
United States v. Eide, 875 F.2d 1429 (9th Cir. 1989}.
In that case, a pharmacist employed by the Veteran's
Administration was accused of stealing drugs from a
hospital. The local police waived a prosecutorial
interest in the matter on the understanding that it
would be handled as an internal Veteran's Adminis-
tration matter. The defendant was then questioned
by his VA superior and he made, under assurances of
confidentially, incriminating admissions that were
later used against him in a federal drug prosecution.
The Ninth Circuit held that the VA supervisor was
not a state actor for purposes of the Fifth Amendment
because he was not acting in a criminal investigation
or prosecutorial function. Id. at 1434. 15.
             
___________________(footnotes)

15  Another Ninth Circuit case addresses the issue in a very
fact-specific context that sheds little light on the general
principles. In United States v. Roston, 986 F.2d 1287 (9th
Cir.), cert. denied, -U.S.-, 114 S. Ct. 206, 126 L.Ed.2d 163
(1993), a person implicated in a ship-board murder was inter-
viewed by the ship's doctor in the captain's cabin. The physi-
cian was a reserve police officer in the State of Hawaii. After
the interrogation the defendant was held under guard aboard

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25a

A contrary result was reached in United States v.
Diaz, 427 F.2d 636 (1st Cir. 1970). There a defendant,
in custody and in the presence of the police, was
interrogated by a draft board secretary about his
failure to register under the Selective Service Act.
The Court of Appeals for the First Circuit held that
the fact that the questions were asked not by a law
enforcement officer but by "a person who also per-
forms routine procedural tasks for an administrative
agency" does not alter the coercive atmosphere sur-
rounding the questions. Id. at 638. 16.
Commonwealth v. A Juvenile, 402 Mass. 275, 521
N.E.2d 1368 (1988), because it bears some factual
similarity to the case before us, provides helpful
guidance with respect to the application of these
principles. In that case, a juvenile living at a state-
            
___________________(footnotes)

the vessel which was under way at the time. The Ninth
Circuit held that the interrogation was conducted by a person
acting in a private capacity. His reserve appointment as a law
enforcement officer was a "mere fortuity." Notably, the court
did not discuss the possibility that, because the ship's doctor
was acting under the authority of the captain of the vessel, he
might have been undertaking a law enforcement function.

16 In this discussion, we have focused on cases involving, as
"does ours, the right against self-incrimination protected by the
Fifth Amendment.  Cases involving the Sixth Amendment
right to counsel also provide a somewhat helpful analogy. In
United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65
L.Ed.2d 115 (1980) and in Kuhlman v. Wilson, 477 U.S. 436,
106 S. Ct. 2616, 91 L.Ed.2d 364 (1986), the Court examined
whether the government had used a government agent and
had focused deliberately on the defendant. The key in these
cases has been whether the government directed the interro-
gator toward the defendant in order to obtain incriminating
information. See also United States v. York, 933 F.2d 1343,
1355-56 (7th Cir.), cert. denied, 502 U.S. 916, 112 S. Ct. 321, 116
L.Ed.2d 262 (1991).

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26a

supported home for troubled adolescents, to which he
had been committed by the Commonwealth's depart-
ment of youth services, was interviewed by the
assistant director of the facility about an assault that
had taken place in the vicinity. At the time of the
interrogation, suspicion had focused on the juvenile.
The assistant director had consulted with the police
and he was "convinced the juvenile had committed a
crime and questioned him several times before the
juvenile confessed,"  Id. 521 N.E.2d at 1370. The
Supreme Judicial Court of Massachusetts held that
the trial court was on solid ground in its factual
determination "in all the relevant circumstances," id.
at 1370, that the assistant director was acting "as an
instrument of the police." Id.
These cases make clear that it is not the particular
job title that determines whether the government
employee's 17. questioning implicates the Fifth Amend-

___________________(footnotes)

17 A similar analysis has been employed when the questioner
is not a government employee but may have undertaken the
questioning to fulfill a governmental obligation because of a
special relationship imposed by law or contract. The Eighth
Circuit recently "recognize[d] that the government can exer-
cise such control over a private actor that a 'private' action can
fairly be attributed to the government for purposes of the
Fourth and Fifth Amendment[s]." United States v. Garlock,
19 F.3d 441, 443 (8th Cir, 1994) (citing Fidelity Fin. Corp. v.
FHLB, 792 F.2d 1432, 1435 (9th Cir. 1986); cert. denied, 479
U.S. 1064, 107 S.Ct. 949, 93 L. Ed.2d 998 (1987)). In that case, a
bank teller confessed to a bank security officer that she had
embezzled bank money. The court reviewed the actions of the
security officer, who was hired expressly to investigate the dis-
appearance of money from the bank's vault, and the corporate
auditor, who helped in the investigation and questioned the
defendant before she confessed. The court affirmed the dis-
trict court's determination that the two investigators were pri-

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27a

ment, but whether the prosecution of the defendant
being questioned is among the purposes, definite or
contingent, 18. for which the information is elicited.
See, e.g., Mathis, 391 U.S. at 4, 88 S.Ct. at 1504-05
(determining that tax investigations, which "fre-
quently lead to criminal prosecutions," require Mir-
anda warnings when that possibility exists). The
"particular office that the official who performs the
custodial interrogation  represents is  inconse-
quential." Battie v. Estelle, 655 F.2d 692,699 (5th Cir.
1981). Therefore, although a government employee
need not be a law enforcement official for his ques-
tioning to implicate the strictures of the Fifth
Amendment, his questioning must be of a nature that

___________________(footnotes)

vate actors outside the ambit of the Fourth and Fifth Amend-
ments because there was no governmental nexus: (1) the bank,
although heavily regulated by the government, is not an
instrumentality of the government; (2) there was no evidence
that law enforcement knew of the investigation prior to the
defendant's confession; (3) the investigators were not private
persons used to target a particular suspect (4) the banking
regulations requiring security officers to report internal bank
crimes to the Officer of the Comptroller of Currency, not to
law enforcement authorities; and (5) the investigators were not
subject to the Fourth and Fifth amendments "simply because
they were engaged in the `public function' of law enforce-
ment ." 19 F.3d at 443. Because the bank investigators were
pursuing the bank's valid interest in internal security, rather
than the government's interest in a criminal conviction, the
court held they were private actors.

18 We include the term "contingent" simply to take into
account that the questioner, although clearly acting for a law
enforcement purpose, may not have sufficient authority, as
Mathis demonstrates, to control whether the ultimate dispo-
sition will be criminal, quasi-criminal or civil or, as in Estelle  v.
Smith, to control the precise use to which the statement will be
put in the course of such a proceeding.

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28a

reasonably contemplates the possibility of criminal
prosecution.
In assessing whether a particular individual is
acting in a capacity that contemplates prosecution as
one of the fruits of his work, it is important to note, as
the cases have recognized, that an individual can often
play more than one role and that the subject does -not
always-and cannot always-appreciate the subtle-
ties of such a dual role. As we noted in Williams v.
Chrans, 945 F.2d 926, 952 n. 44 (7th Cir. 1991), cert.
denied, 505 U.S. 1208, 112 S.Ct. 3002, 120 L.Ed.2d 877
(1992), one of the concerns in Estelle was the unex-
pected role-shifting that occurred when a neutral
psychiatric interview was used as a tool for the
prosecution. The Second Circuit also has stated that
the concerns that animate Estelle are triggered
whenever a defendant does not know that the prose-
cution might subsequently use the information
against him in a manner unrelated to the purported
purpose of the interrogation. see United States v.
Cartes, 922 F.2d 123, 127 (2d Cir. 1990); see also
United States v. A.R., 38 F.3d 699, 703 (3d Cir. 1994)
(indicating that Fifth Amendment concerns arise
-when a purportedly neutral examination is later used
to prove an element of the government's burden in a
criminal prosecution); Gholson v. Estelle, 675 F.2d
734, 738 (5th Cir. 1982) (noting that such role shifting
strikes at the heart of the adversary system and adds
an element of unreliability to any evidence so
presented).
The application of these principles to the context of
psychiatric patients presents especially difficult ana-
lytical problems. A great deal of the available care in
this area is administered by various governmental
agencies, and those suspected of criminal activity are
        
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29a

especially likely to be found in a facility operated
under the auspices of a governmental agency. Conse-
quently, the caregivers are employed by the govern-
ment. Caregivers in the mental health field are often
organized as a team in which everyone from the
directing psychiatrist to the ward aide is an impor-
tant part of the effort, and a free exchange of infor-
mation among the staff is an imperative. Psychiatric
care often involves, as it did in this case, an effort to
have the patient discuss freely with the caregiver his
apprehensions and fears. According to the record in
this case, it is also salutary, at least in some situa-
tions, for the patient to take responsibility for his
actions and to experience the consequences that flow
from taking such responsibility.
However, if it can be reasonably concluded that the
caregiver goes beyond these accepted medical roles
and affirmatively takes on the role of delivering
someone who is in his care and custody to the prose-
cutor, the district court is entitled to determine that
the caregiver has changed his role substantially. As
the district court recognized, the most obvious
example of this dual prosecutorial/healer role is when
there is a specific arrangement between law enforce-
ment and medical personnel to collaborate in the
prosecution of an individual. See D.F., 857 F.Supp. at
1326 n. 34. If those efforts are the cause of the con-
fession, the Fifth Amendment's Due Process Clause
is certainly implicated. Even if there is no explicit
agency arrangement, the medical staff of a state
facility can nevertheless decide that its cooperation
in the prosecution of patients is part of its respon-
sibility, and can include such a goal among its
activities. In such a circumstance, the absence of a

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30a

formal agreement with prosecutorial authorities
cannot be deemed outcome determinative.
The district court's initial reading of Connelly may
well have been broader than it should have been. The
district court was correct in holding that state
employees other than law enforcement officers can
trigger, by their actions, the protection of the Due
Process Clause of the Fifth Amendment. However, it
might at first glance seem less than clear that the
district court believed that such extra-police inter-
rogation by other state employees or agents needed to
be conducted at least in part for a law enforcement
purpose in order to implicate those protections. As
we have noted, Connelly cannot be read that broadly if
it is to live in peace with the rest of our Due Process
jurisprudence.  It is clear that the state actor's
questioning of the defendant must have as one of its
purposes, definitive or contingent, 19. the use of the
statement in a criminal prosecution. Even if we
assume that the district court might have misappre-
hended the scope of Connelly, we must conclude that
such an over-reading of the precedent did not affect
its analysis in this case. Here it is clear that the
district court focused on whether the staff of the
Center had assumed," as part of their function, the
prosecution of D.F. Dealing with conflicting evidence
and, necessarily, with the credibility of witnesses, the
district court concluded that the record established

coercion-indeed, a bit of overreaching-by gov-
ernment officials. Staff members at the Center
were either enlisted or volunteered to act as law
enforcement surrogates in eliciting confessions
              
___________________(footnotes)                              
                                  
19 See footnote 18, supra.         

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31a

from troubled teens. There is extensive evidence
in the record of the close relationship between
staff at the center and Protective Services, the
juvenile court system, and the F.B.I. There is
also evidence that many of the staff at the Center
saw themselves as an arm of law enforcement.

857 F.Supp. at 1325-26.
We believe that, whatever our own judgment might
have been had we sat as trial judges in this case, a
respect for the division of roles assigned to the trial
and the appellate benches requires that we not
disturb the district court's conclusion that the
medical staff of the Center saw the prosecution of
D.F. as a part of their work. Although the evidence is
not at all one-sided, we cannot say that the court was
clearly erroneous. 20.

___________________(footnotes)

20 We do not suggest that the case law requires the sup- 
pression of every statement made to a health care worker who
has a duty to disclose admissions about certain criminal activity
to authorities in order to prevent future harm to third parties.
As a threshold matter, we note that the applicability of the
Fifth Amendment's government actor requirement to all those
who have a duty to report certain criminal activity that comes
to their attention is simply not implicated in this case. Here
the district court found that the personnel of the Center took
as one of their purposes the extraction of criminal admissions
for the purpose of prosecution. We simply hold that, in this
highly fact-specific case, the district court was quite correct
when it determined that the state, with an eye to prosecution,
cannot coerce admissions under the guise of treatment and
then prosecute on the basis of those admissions. More funda-
mentally, there is a quantum difference between the purpose-
ful and coercive extraction of admissions for the purpose of
prosecution and the simple reporting of information, whether
because of a reporting requirement or a subpoena, which comes
to the attention of the health care provider in the course of a

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32a
        
Nor can we find that the district court erred clear-
ly when weighing whether the confessions of D.F.
were indeed involuntary. The court reviewed the
efforts of the staff to gain her trust, the systems of
rewards and sanctions that were imposed, the absence
of any comprehensive warning as to the full conse-
quences of her disclosure, and the absence of any
mention of her right against self-incrimination. On
the basis of its analysis of the evidence, the district
court came to the conclusion that D.F.'s. inculpatory
statements were not "the product of a rational
intellect and free will.'" 857 F. Supp. at 1326 (quot-
ing Blackburn v. Alabama, 361 U.S. 199, 208, 80 S. Ct.
274, 280-81, 4 L.Ed.2d 242 (1960)). We cannot say,
given the standard of review to which we must adhere,
that that conclusion is clear error. Baldwin, 60 F.3d
at 365 (7th Cir. 1995). Nor can we say that the dis-
trict court was in error in its conclusion that the
subsequent confessions of D.F. were inadmissible
because they were the result of continued staff
pressure, Although subsequent confessions are not
necessarily tainted by an earlier confession, see
Oregon v. Elstad, 470 U.S. 298, 310-11, 105 S.Ct. 1285,
1293-94, 84 L.Ed.2d 222 (1985), here the district court
explicitly determined that the subsequent statements
were the product of impermissible staff pressure.

___________________(footnotes)        

legitimate, non-law enforcement encounter with a patient.
This is the distinction that our colleagues in the other circuits
have made in the cases we have discussed we see no reason to
depart from this settled principle.

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33a

CONCLUSION

Accordingly, the judgment of the district court is 
affirmed.

AFFIRMED

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 34a

APPENDIX B

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
               
No. 93-CR-202 (JPS)

UNITED STATES OF AMERICA, PLAINTIFF

v.

D.F., DEFENDANT

[FILED: JULY 19, 1994]

DECISION AND ORDER (REDACTED)

STADTMUELLER, District Judge.
                      
This tragic case began on January 5, 1992, when an
infant girl was found dead in her parents' home
[redacted]. Six days later, her sister was also found
dead. Their deaths were initially attributed to
Sudden Infant Death Syndrome and influenza. Based
on a series of statements made to mental heath
counselors and reported to law enforcement officials,
however, the Government subsequently charged the
infants' cousin, D.F., with murder. Today, the court
decides whether the Government may use D.F.'s
statements to support its case against  her. 1.

___________________(footnotes)
   
1 D.F.'s motion for a jury trial is also pending before the
court. The Government's papers suggest, however, that, given
the court's ruling on the defendant's motion to suppress, that

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35a

PROCEDURAL HISTORY

On November 17, 1993, the Government filed an
information charging D. F., a juvenile, with two
counts of murder in the second degree, in violation of
18 U.S.C. 1111, 1153, and 5031. D.F. made an initial
appearance in U.S. Magistrate Judge Aaron E.
Goodstein's court on November 18, 1993. On March 7,
1994, D.F. moved to suppress a series of inculpatory
statements she made to [redacted] County Mental
Health Center ("Center") therapists and staff mem-
bers. In that motion, D.F. argued that the statements
were procured in violation of the Fifth Amendment's
privilege against self-incrimination and the Fifth
Amendment's guarantee of due process. D.F.
reserved an argument that the statements were
protected by the psychotherapist-patient privilege for
trial.
In recommending that the statements be
suppressed, Magistrate Goodstein found that al-
though the protections against self-incrimination an-
nounced in Miranda v. Arizona did not apply to limit
D.F.'s discussions with the Center staff, her state-
ments made during the course of therapy were abso-
lutely protected from disclosure by the psycho-
therapist-patient privilege, Both parties objected to
the Magistrate's Recommendation the Government
objected to the overall recommendation, and to the
Magistrate's findings on the psychotherapist-patient
privilege; D.F. objected to the Magistrate's findings
on the Miranda issue, and renewed her argument
that the statements were not voluntarily made.
              
___________________(footnotes)
 
motion has become moot. As a result, the court will defer a
ruling on the defendant's motion for a jury trial until and
unless it becomes necessary.

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36a

FACTS 2.

At all times relevant to the suppression motion,
D.F. was thirteen or fourteen years old. She presents
a history of runaway behavior, assaultive behavior,
and drug and alcohol abuse. (Transcript of Pro-
ceedings Exhibit ("Ex.") J-l.) There is evidence that
she suffered from extensive abuse, including physical
and sexual abuse, during her childhood. (Ex. J-1 at 2.)
She has had extensive exposure to the juvenile social
services and justice system. (Ex. J-l at 1.) Prior to
being charged in this case, she had been charged with
battery on at least three occasions, and was suspected
in at least three other incidents. (Ex. 1 at 8, J-1 at
1-2,) She has lived with five different legal guardians,
and has considered a sixth. (Ex, 1 at 9, J-1 at 1.)
From December 4, 1992 to May 14, 1993, D.F. par-
ticipated in a residential treatment program at the
Center. For our purposes, D.F.'s placement at the
Center was less than voluntary. 3. There is no evi-
dence in the record that D.F. played any role in the

___________________(footnotes)
                     
2 The court did not hold an evidentiary hearing on this mo-
tion. As a result, the factual findings come from the parties'
agreed statements of facts, the magistrate's findings, and the
transcript of the magistrate's hearing on this issue. To the
extent that the magistrate's findings are dependent upon
credibility determinations, this court may not reject them
unless they are clearly erroneous. United States v. Ornelas-
Ledesma, 16 F.3d 714, 720 (7th Cir. 1994). In all other respects,
the court's review is de novo.

3 From a nonconstitutional legal standpoint, however, she
participated in the program as a voluntary admission (as op-
posed to a court-ordered involuntary admission).

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37a

admission decision. 4. Moreover, the evidence sug-
gests that Ms. A., D.F.'s aunt and the person who
technically made the admission decision, was heavily
influenced in making that decision both by a pending
court order and by the Department of Social Services'
suggestion that D.F. be placed at the Center, (Tran-
script of Proceedings ("T.") at 247-48; Third Supple-
mental Statement of Uncontested Facts ("Third
Facts") at 6.) In light of D.F.'s alcohol and drug
problems, the Department had the power to remove
her from Ms. A.'s home or to move in court for an
involuntary placement.  (Magistrate's Recommen-
dation ("R.") at 2; T. at 247-49; Third Facts at 6-7.)
Each patient 5. at the Center interacted with and was
treated by a number of different staff members. As a
general matter, however, a team of professionals
(including a psychiatrist, a social worker, a regis-
tered nurse, an occupational therapist, and a recrea-
tional therapist) was responsible for the progress and
treatment of each patient. (T. at 128; Third Facts at
2.) Children and adolescents at the Center were con-
sidered to be the patients of Dr. J.G., staff psychi-
atrist and Director of the Child and Adolescent Unit 

___________________(footnotes)

4 In D.F.'s Initial Psychiatric Evaluation, Dr. E.J., the
Associate Clinical Director of the Center, notes her attitude
toward her admission:

The patient's thought content seems to be somewhat
preoccupied with her ambivalence about being in the
hospital. She is particularly uncomfortable with her ad-
mission status and the lack of freedom involved with that.

(Ex. J-1.)
5 Residents at the Center are alternatively referred to as
"patients" and "clients." For ease of reference, I will refer to
them as "patients."

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38a

at the Center. (Third Facts at 3.) In his clinical role,
Dr. G. performed a number of functions: he attended
weekly team meetings, he supervised the social wor-
kers and registered nurses on the team, and he made
high level clinical decisions," including decisions about
medications and level of supervision. (Third Facts at
4.) He also had direct contact with each patient at
least once a week. (Third Facts at 4.)
Day-to-day treatment responsibilities, however,
were left to the remaining members of the team.
Social workers, with occasional supervision from Dr.
G., made the necessary treatment decisions. (Third
Facts at 2, 4-5.) Initially, R.M. served as the social
worker for D.F; B.K. assumed those duties at a later
time. Registered nurses met directly with Dr. G. to
review patients' charts on weekdays. (Third Facts at
2, 4.)           
As a general rule, statements made by patients at
the Center were considered "confidential," and were
not to be reported to anyone other than the other
members of the treatment team. (T. at 119, 194-95.)
There were a host of exceptions to this rule of
"confidentiality," however. Patient statements were
shared with a liaison official from the [redacted]
County Department of Social Services, who was part
of the treatment team. In addition, general state-
ments (statements not relating to child abuse) could
also be passed on, at the social worker's discretion, to
personnel from the [redacted County Department of
Social Services (including the Children's Protective
Services Unit, or "Protective Services"), the
[redacted] County (Juvenile Court, and the [redacted]
Public Schools. (T. at 128-31.)
Other exceptions were created by statute. The
Wisconsin Children's Code created mandatory report-

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39a

ing requirements for accounts of child abuse by
victims. Wis. Stat. Ann. 48.981, Under the reporting
provisions, members of the treatment teams (physi-
cians, nurses, social workers, occupational thera-
pists) were required to report any suspicions that a
patient had been abused. Id. The provisions also
provided that "other persons" suspecting abuse of
any child (i.e., including abuse by a patient of another
child) may report those suspicions. Id. The pro-
visions do not appear to address the situation at issue
in this case, i.e., a team member suspecting that a
patient had abused another child. To the extent that
they do address that situation, they appear to
preclude disclosure of such suspicions: "[t]he purpose
of this subsection is to allow children to obtain
confidential health care services." Id.
Mr. M. and Ms. K. and, apparently, several other
staff members misunderstood the reporting pro-
visions during most of D.F.'s stay at the Center.
Upon admission to the Center, D.F. was shown and
signed a form that outlined the limits on confi-
dentiality at the Center. (Ex. B-1; T. at 280.) Mr. M.
presented the form to her, and suggested to her that
any statements she made about abuse of other
children would have to be reported. (T. at 280.)
Patients at the Center were told that their state-
ments were confidential, at least with respect to the
unit. (T. at 209.) There "is evidence that D.F. thought
that statements made during therapy and to staff
were confidential. (Ex. F-1 at 1.) However, there is
also evidence that she knew her statements would be
reported. In January 1993, D.F. refused to answer an
explicit query about whether she had ever murdered
anyone. (Ex. B-3 T. at 288.) She also refused to talk
during another encounter, stating that she couldn't

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40a

because of staff reporting requirements. (Ex. C-5;
T. at 403.) Ms. A. also informed Mr. M. of a statement
by D.F.: "if all is known about what she's done, she'd
go to jail for a long time." (Ex. B-4.) To the extent
that D.F. knew about mandatory reporting, however,
it is not at all clear that she knew the destination and
consequences of any reporting.
While at the Center, D.F. did enjoy some level of
freedom. Although she lived in Unit One, a locked
unit, she was able to move around within the unit and
to other buildings for school and meals. (R. at 3; T. at
25-28.) Supervision while on campus varied depending
on behavioral and safety concerns. (R. at 3; T. at 26.)
Patients could negotiate temporary supervised trips
off campus after they had earned sufficient behavior
"points" (see discussion, infra). (T. at 28-31.) Patients
under fourteen could only leave the Center perman-
ently with family help. (T. at 28.) Those who were
fourteen years old or older could leave the Center
without family help, but only after waiting a period of
forty-eight hours. (R at 3; T. at 250-51.) During that
forty-eight hour period, the medical director could go
to court to prevent the patient from leaving. (R. at 3
T. at 251.) D-F. invoked her right to leave the Center
on April 8, 1993; she later rescinded. (Ex. B-8; T. at
308-311.)
Staff at the Center "encouraged" the patients to
discuss their problems openly and honestly. This
"encouragement" took many forms. As a general
matter, patient privileges and relative freedoms were
determined through the use of a point system. (T. at
261.) Points could be earned for, among other things,
open and sincere participation in group therapy
sessions, as well as open and honest discussion in
one's journal; failure to do these things could result

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41a

in a loss of points. (T. at 165, 262.) Patients also had
to have regular conversations with their "person in
charge" (usually nursing staff) about "why they are
there." 6. (Tat 157-58, 203, 223.) Over and above the
point system, patients were constantly encouraged to
open up and be honest with staff and with family about
their problems; frank exchanges "were considered
critical both to general treatment goals and to estab-
lishing a level of trust between staff and the patients.
(E.g., T. at 318-19.)
Because of her behavioral problems and her prob-
lems with mistrust of authority, D.F., in particular,
had a care plan specially designed to encourage her to
address anger issues by speaking frankly about the
abuse she had inflicted on other children. (Ex. 5-8; T.
at 266, 419.) For example, on December 31, 1992, she
was encouraged to discuss her abuse of smaller
children in her care; at the end of the session, she was
"encouraged to work on these issues and to write
more in her journal relating to these issues." (Ex. 6
at 2; T. at 267-68.) On January 1, 1993, she was given
an assignment "to make a list of people she has hurt."
(Ex. C-3, 7; T. at 225-26, 267-70, 415.) On January 18,
1993, she was asked whether she had ever murdered
anyone. (Ex. B-3; T. at 117, 287-88.) T.K., a member of
D.F.'s treatment team, stated in an interim note on
D.F.'s progress that exploration of D.F.'s physical
abuse of young children was "of utmost importance."
(Ex. 10 at 1; T. at 354-56.)
Occasionally, through negotiations with the juven-
ile justice system, staff at the Center were able to

___________________(footnotes)
                                             
6 In addition, when patients were on suicide watch (as D.F.
often was), they were further encouraged to open up and
discuss their problems. (T. at 403-404, 407.)

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42a

exert extra leverage on their patients. On March 2,
Mr. M. informed D.F. that she would not be prose-
cuted for her admitted assaults provided that she
continued to make treatment progress, and follow
treatment expectations. (Ex. B-5 T. at 327.) "Making
treatment progress" included avoiding going AWOL,
and "continuing to participate sincerely" in treat-
ment. (T. at 329) By- negotiating this arrangement
with Protective Services, and by communicating it to
D.F., Mr. M. sent two-very clear messages: (1) D.F.'s
frank disclosure of her past behavior would be
generously rewarded: and (2) she would likely be
granted leniency on any future disclosures.
Once a particular problem in D.F.'s past became
apparent, she was pushed even harder to discuss it.
For example, after April 5, when D.F. made her initial
disclosures, further discussion about her role in her
cousins' deaths was "encouraged; in fact, it became
part of her care plan. (Ex. F-1 at 1.) For example, on
two occasions, staff told her (1) to "tell the truth  . . . . 
tell them how you did it"; and (2) "these are the
reasons you're here, you need to talk about them and
get them resolved." (Ex. F-1, I-1; T. at 183-85, 206-07,)
While D.F. was at the Center, Mr. M. cooperated
with staff at Protective Services in [redacted] County
and [redacted] County. He provided information to
Protective Services about statements D.F. made
while at the Center. (T. at 290-93 He arranged for
D.F.'s records, which included admissions regarding
crimes, to be released to Protective Services. (T. at
292-93.) He also arranged for Protective Services to
question D.F.: [redacted] County staff questioned her
twice in January, (T. at 290-91); a worker from
[redacted] County spoke with D.F. on February 11.
(T. at 290, 325-26.)

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43a

For many staffers, this broad policy of "encour-
agement" appears to have been motivated solely by
treatment concerns. Encouraging D.F. to talk about
her past actions was part of her care plan, and was
universally seen as therapeutic and essential to any
recovery.  Some staff, however, took a more expan-
sive view of "therapy" and "recovery." Staffers sub-
scribing to this expanded view felt that D.F. would
not recover- unless and until she took responsibility
for her wrongs and was held accountable for them, in
a court of law if necessary. (T. at 162, 178, 192,
342-43.)
Mr. M. was informed in December 1992 that D.F.
was suspected in the deaths of her two cousins and in
the assaults of other cousins. 7. (R. at 4; Ex. B-2 at 2;
T. at 283.) Ms. K. learned about these suspicions
sometime before February 23, 1993. (Ex. A-1.) At
that time, both counselors felt that the Wisconsin
child abuse reporting requirements required them to
report any incriminating admissions made by D.F. to
law enforcement authorities. (R. at 4; T. at 41,.)
Consequently, Mr. M. warned D.F. that she should be
cautious about what she said, and that her counselors
would have to report any disclosures she made about
harming other children. (R, at 4.) He estimates that
he warned her in this way on approximately ten
occasions and recorded notes about his warnings in

___________________(footnotes)
                       
7 Obviously, the fact that Ms. N. M., the [redacted] County
employee who advised Ms. A. to admit D.F. to the Center, was
also feeding Mr. M. information about D.F.'s crimes doesn't
help the Government's argument that there was no law en-
forcement involvement here.

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44a

her chart about four times. (R. at 4.) Exhibits before
the court reflect two such warnings. (Ex. B4, A-l.) 8.
These warnings apparently had a mixed effect on
D.F. On one hand, several factors were working to
limit the effect of the warnings. At the same time
that Mr. M. was warning her about her disclosures,
the staff plan was to get her to open up, to disclose as
much as possible. (T. at 322-24.) Moreover, in his
"warnings" to D.F., Mr. M. never warned D.F. that
her statements might be used in court, or that she
could have a lawyer present. (T. at 321; cf. T. at 209.)
Additionally, the warnings were based on an admit-
tedly mistaken reading of the Wisconsin child abuse
reporting requirements. (T. at 321.) On the other
hand, the warnings did seem to have some effect. As
the discussion above supra pp. 1314-1315, demon-
strates, D.F. resisted the considerable pressure to
confess for several months.
On April 5, 1993, she broke down and confessed, At
a group meeting with Ms. K., eight to ten other
adolescents, and an "adult co-facilitator," D.F. admit-
ted to killing her two cousins. (R. at & T. at 45-49.) 9.
Ms. K memorialized D.F.'s confession that same
night, and informed Ms. A. about it. (T. at 51, 60.) She

___________________(footnotes)                               

8 Mr. M. started to question his initial reading of the report-
ing requirements sometime in the end of March. (T. at
299-300.) At a weekly meeting, team members discussed
whether not reporting D.F. admissions might be an option. (T.
at 301.)

9 In addition to the admissions mentioned below, D.F. also
repeated her admissions to staff on a number of occasions,
including April 14. (T. at 160-63.) She was not warned about
the consequences of disclosure before any of her subsequent
disclosures. (T. at 317.)

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45a

did not, however, consult with or inform Ms. A. or
D.F. about her decision to report it. (T. at 125-26.)
The next day, at the weekly team meeting, Ms. K.
informed the members of the team of D.F.'s con-
fession. (R. at 6.) D.V., a liaison from the Department
of Social Services, immediately went to the telephone
and reported D.F.'s disclosures to Protective Ser  -
vices. 10. (R. at 53.) As a result of this report, the F.B.I.
initiated the investigation that led to D.F.'s arrest.
(R. at 6.)
Later that day, Ms. K., Mr. M., and Dr. G. had
further discussions regarding whether D.F.'s state-
ments should have been disclosed. (R. at 7 Ex. A-3; T.
at 53-55.) Mr. M. expressed concerns regarding
whether the disclosures should have been made; Dr.
G., a psychiatrist at the Center for 25 years, was not
sure whether the disclosure should or could have been
made, and suggested that Mr. M. and Ms. K. seek
further professional advice about what to do next. (T.
at 54.)
On April 16, in responding to a call from the F.B.I
about D.F.'s admissions, Ms. K. expressed her
              
___________________(footnotes)
              
10 In light of the Department of Social Services  presence On
the treatment team, and the Center's close working relation-
ship with Protective Services and the juvenile court system, it
is difficult to tell exactly when D.F.'s statements technically
were "reported" for the purposes of the Wisconsin Reporting
Statutes or who reported them. Such determinations are not
necessary, however, for resolution of this motion. The
important fact is that D.F.'s statements were reported, direct-
ly or indirectly, to law enforcement.

The court notes, however, that in her testimony, Ms. K.
essentially assumes that she was the one who reported the
statements. She also admits that, when the information was
reported, she knew that it would likely lead to changes being
filed against D.F. (T. at 144-45.)

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46a

uncertainty regarding the propriety of the disclosure.
(T. at 62.) Later that day, she was informed for the
first time by administrators and counsel at the
Center that she had been permitted, but not required,
by the Wisconsin Child Abuse reporting provisions to
report D.F.'s statements. (R. at 7; T. at 64, 145-50.)
See Wis.Stat.Ann. 48.981. 11. She was also informed
that because she had warned D.F. of her reporting
requirements and reported in good faith, her per-
missive reporting was appropriate. (Ex. A-6 T. at
147.) They further advised. her to cooperate with the
F.B.I., and she decided to do so. (T. at 151.)
Sometime in April, 12. Ms. K., D.F., and several
nursing assistants met with Mr. F., an attorney from
[redacted] who had been appointed to" provide D.F.
with precharge representation. (T. at 66-67 F. Aff. at
2-3.) At that meeting, Mr. F. told D-F. not to speak to
any law enforcement agents or County Social Ser-
vices personnel. (R. at 7; T. at 66-67.) He warned her
that family and friends with information could be
forced to disclose it. (Ex. A-5 T, at 66-67.) At that

___________________(footnotes)        
      
11 In fact, advice from counsel may have been wrong. From
the court's reading, 48.981 does not permit or require Ms. K.
to disclose D.F.'s statements. In fact, it doesn't address D.F.'s
situation at all. Moreover, the court notes that if these dis-
closures had been made several months earlier, during D.F.'s
time in the Center's drug and alcohol, program (or if they had
been made by Mr. M.), they might have violated federal law.
See Ex. B-1; 42 U.S.C. 290ee-3.

12 Ms. K. states that the meeting took place on April 22;
however, Mr. F.'s affidavit regarding the meeting is dated
April 21. It appears, however, that the meeting did occur after
Ms. K.'s meeting with administrators and counsel for the
Center on April 16.

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47a

time, D.F. signed an invocation of her Fifth Amend-
ment rights in Ms. K.'s presence. 13. (R. at 7, Ex. 12.)
Ms. K. did not inform Mr. F. at this meeting of her
current and future plans to cooperate with the F.B.I.
(T. at 359; F. Aff. at 2.) It does not appear that D.F.
had been informed of Ms. K.'s cooperation. (T. at
356-58, 338-39.) If Mr. F. had known of such coop-
eration, he would have taken steps to ensure that D.F.
did not talk to any Center staff and, ultimately, to
ensure that D.F. was removed from the Center. (F.
Aff. at 2-3.) Ms. K. told Mr. F. that therapy sessions
were "confidential," and did not tell him of the
Center's aforementioned position regarding the per-
missive reporting of statements made in these sup-
posedly "confidential" therapy sessions. (T. at 360.)
D.F. repeated her confession at family therapy
meetings on April 14, April 23 and May 10. 14. (R. at 7;
Ex. A-6, A-7, A-8, B-7 at 2 T. at 70-83.) Incredibly,
despite Ms. K.'s discussions with the F.B.I. and
                                           
___________________(footnotes)      
                   
13 The invocation reads as follows:
      
I, . . . [D.F.], hereby declare that I do not want to be
questioned by the police, sheriffs department, district
attorney, or any other law enforcement official con-
cerning the pending charge or any other matter without
my attorney being present. Therefore, I am invoking my
right to remain silent and right to counsel protected
under the Fifth Amendment of the United States
Constitution.
       
Ex. 12.
14 Ms. K. also recalls an April 9 meeting in which D.F.
recounted her role in her cousins' deaths. Presumably because
there were no notes taken of that meeting, however, the Magis-
trate did not credit Ms. K.'s testimony in his findings of fact.
A review of the transcript suggests that that was the correct
decision.

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48a

corporation counsel, and Mr. V.'s discussions with
Protective Services, Ms. K reassured the family and
D.F. of the confidentiality of the family therapy ses-
sions at the April 23 session. (R. at 7; Ex. A-6; T. at
55-56.) During the April 23 and May 10 sessions; she
asked "facilitating questions that were designed to
encourage a free discussion of D.F.'s actions. (T. at
362-63, 367-68.) Partially out of a concern that she
might be asked by law enforcement exactly what D.F.
had said, Ms. K. included in her notes of the May 10
meeting direct quotes from D.F. (T. at 368-69.)
After her initial disclosures on April 5, D.F. was
constantly "encouraged" to repeat and expand upon
those disclosures. (T. at 231-32,) In response to this
"encouragement," she made incriminating state-
ments on a number of other occasions. (Ex. E-3, E-4,
T. at 231-32, 382-86,) The Government seeks to use all
of these statements in its murder case against D.F.
        
DISCUSSION

Magistrate Goodstein recommended that the
statements made by D.F. during the course of her
psychotherapy be suppressed. This court's review of
that recommendation is de novo. 28 U.S.C. 
636(b)(1)(C). 15. The Magistrate based his recom-
      
___________________(footnotes)

15 As an initial matter, the Government  objected  to the
Magistrate's findings on the psychotherapist-patient privilege
issue because (1) that issue had not been raised by the parties
and (2) matters of nonconstitutional privilege are not properly
handled in the context of a motion to suppress. As a technical
matter, these procedural arguments may have some merit. At
this point, however, any procedural error is harmless, as the
factual record and legal briefing now before the court is
sufficient to decide the privilege issue. Certainly, neither the
interests of justice nor the interests of judicial economy would
be served if the court chose to deny the motion to suppress on

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mendation on the psychotherapist-patient privilege,
the starting point of my analysis.
          
I

The application of nonconstitutional privileges in
the federal courts is governed by the Rules of
Evidence:

Except as otherwise required by the Constitution
of the United States or provided by Act of Con-
gress or in rules prescribed by the Supreme
Court pursuant to statutory authority, the privi-
lege of a witness, person, government, State, or
political subdivision thereof shall be governed by
the principles of common law as they may be
interpreted by the courts of the United States in
light of reason and experience. However, in civil
actions and proceedings, with respect to an
element of a claim or defense as to which State
law supplies the rule of decision, the privilege of a
witness, person, government, State, or political
subdivision thereof shall be determined in accor-
dance with State law.

Fed.R.Evid. 501. Without the benefit of briefing from
the parties, the Magistrate, in applying Rule 501 to
the facts of this case, found that state law of noncon-
stitutional privilege should govern. (R. at 11.) The
parties argue, and the court agrees, that this finding
was in error, 16. and that the court must look instead to

___________________(footnotes)                         
                  
procedural grounds and then later adopt the Magistrate's
reasoning in response to a motion to exclude the statements on
evidentiary grounds.

16 "In nondiversity jurisdiction civil cases, federal privilege
law will generally apply . . . . As Justice Jackson has said:

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50a

federal law to determine the existence and scope of
any psychotherapist-patient  privilege. 17.
Congress has mandated that "principles of common
law. . . in light of reason and experience' govern the
application of nonconstitutional privileges.  See
Fed.R.Evid. 501.  The court recognizes that the
psychotherapist-patient privilege did not exist at
common law. 18. Note, Developments in the Law-
                
___________________(footnotes)

A federal court sitting in a non-diversity case such as this
does not sit as a local tribunal. In some cases it may see fit
for special reasons to give the law of a particular state
highly persuasive or even controlling effect, but in the last
analysis its decision turns upon the law of the United
States, not that of any state.

D'Oench, Duhme & Co. v. Federal Deposit Insurance Corp., 315
U.S. 447, 471, 62 S. Ct. 676, 686, 86 L.Ed. 956 (1942) (Jackson,
J, concurring)." Conference Report No. 93-1597, 93d Con-
gress, 2d Session 4 (1974), reprinted in 1974 U.S.C.C.A.N. 7098,
7101.

Note also that the court is not convinced that D.F.'s
statements would be protected under the Wisconsin psycho-
therapist-patient privilege. See Wis.Stat.Ann. 905.04. Under
Wisconsin law, "[t]here is no privilege in trials for homicide
when the disclosure relates directly to the facts or immediate
circumstances of the homicide." Wis.Stat.Ann.  905.04 (4)(d).
what little case law there is on the homicide trial exception
suggests that it would apply to the facts of this case. See, e.g.,
State v. Jenkins, 80 Wis.2d 426, 259 N.W.2d 1092,113 (1977).

17 Federal juvenile proceedings such as this one are tech-
nically classified as "civil" in nature. Nevertheless, because
substantive federal law will govern in this action, Rule 501
clearly provides that federal common law govern with respect
to nonconstitutional privileges.

18 Where the privilege exists, it was created by statute. See
In re Grand Jury Proceedings, 867 F.2d 562, 565 (9th Cir.
1989), cert. denied, 493 U.S. 906, 110 S.Ct. 265, 107 L.Ed.12d 214
(1989).

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Privileged Communications, 98 Harv.L.Rev. 1450,
1539 (1985). Several circuit courts have held that that
recognition precludes further analysis under Rule
501. See In re Grand Jury Proceedings, 867 F.2d 562,
565 (9th Cir.) ("[because our discretion under Rule
501 is limited to the development of privileges extant
in the common law, we affirm the district court's
denial of the motion to quash subpoenas of Doe's
psychiatric records. . . . we decline to reach the
merits of the efficacy of the psychotherapist-patient
privilege by this holding, but we do opine that if such
a privilege is to be recognized in federal criminal
proceedings, it is up to Congress to define it, not this
court"), cert. denied, 493 U.S. 906, 110 S. Ct. 265, 107
L. Ed.2d 214 (1989); United States v. Corona, 849 F.2d
562, 567 (11th Cir. 1988) ("evidentiary privileges in
federal criminal cases are governed by common law
. . . neither common law nor statutory law provides for
any type of physician-patient privilege"), cert. denied,
489 U.S. 1084,109 S. Ct. 1542,103 L.Ed.2d 846 (1989).
This approach appears too rigid. Although Con-
gress in Rule 501 makes reference to the common
law, that does not mean that it intended to arbitrarily
freeze privilege law in its 1974 state. To the
contrary, the Supreme Court has found, and the legis-
lative history suggests, that Congress enacted Rule
501 to allow the courts maximum flexibility in addres-
sing privilege questions on a case-by-case basis. See
United States v. Gillock, 445 U.S. 360, 367, 100 S. Ct.
1185, 1190-91, 63 L.Ed.2d 454 (1980) 19. ; Statement by

___________________(footnotes)
                                     
19 The Court in Gillock also suggested that inclusion of a
particular privilege in the Judicial Conference's proposed draft
of enumerated privileges weighed in favor of recognizing the
privilege under Rule 501.

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the Honorable William L. Hungate, Chairman of the
House Judiciary Subcommittee" on Criminal Justice,
Upon Presenting the Conference Report on H.R. 5463
to the House for Final Consideration 3 (December 18,
1974) ("Rule 501 is not intended to freeze the law of
privilege as it now exists. . . [it] is intended to provide
the courts with the `flexibility to develop rules of
privilege on a ease-by-case basis"), reprinted in 1974
U.S.C.C.A.N. 7108, 7110. In fact, the legislative
history suggests that, when it decided not to include
a specifically enumerated psychotherapist-patient
privilege, Congress recognized and " approved of
the application of such a privilege under certain
circumstances:

 . . . It should be clearly understood that, in
approving this general rule as to privileges, the
action of Congress should not be understood as
disapproving any recognition of a psychiatrist-
patient, or husband-wife, or any other of the
enumerated privileges contained in the Supreme
Court rules. Rather, our action should be under-
stood as: reflecting the view that the recognition
of a privilege based on a confidential relationship
and other privileges should be determined on a
case-by-case basis.

S.Rep. No. 93-1277, 93d Congress, 2d Session 9(1974),
reprinted in 1974 U.S.C.C.AN. 7051, 7059.
In the abstract, "in light of reason and experience,"
I am convinced that "a psychotherapist-patient privil-
ege of some form furthers sufficiently important and
overriding interests so that recognition of the privil-
ege is appropriate under Rule 501." in re Grand
Jury Subpoena, 710 F.Supp. 999 (D.N.J.1989), aff'd,
879 F.2d 861 (3d Cir. June 27, 1989). Recognition of

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53a

such a privilege would serve at least two important
interests: effective psychiatric treatment 20. and pri-
                     
___________________(footnotes)
          
20 The most common articulation of the effective treatment,
or utilitarian, justification for the privilege was quoted by the
Sixth Circuit in the primary case recognizing the privilege:

Among physician, the psychiatrist has a special need to
maintain confidentiality. His capacity to help his patients
is completely dependent upon their willingness and ability
to talk freely. This makes it difficult if not impossible for
him to function without being able to assure his patients of
exceptions to this general rule . . . there is wide agreement
that confidentiality is a sine qua non for successful psych-
iatric treatment. The relationship may well be likened to
that of the priest-penitent or the lawyer-client. Psychia-
trists not only explore the very depths of their patients'
conscious, but their unconscious feelings and attitudes as
well. Therapeutic effectiveness necessitates going beyond
a patient's awareness and, in order to do this, it must be
possible to communicate freely. A threat to secrecy blocks
successful treatment.

Report No. 45, Group for the Advancement of Psychia-
try 92 (1960), quoted in Advisory Committee's Notes to
Proposed Rules, 56 F.R.D. at 242.

In re Zuniga, 714 F.2d 632,638 (6th Cir.), cert. denied, 464 U.S.
983, 104 S. Ct. 426, 78 L.Ed.2d 361 (1983); see also In re Grand
Jury Subpoena, 710 F.Supp. 999, 1006-07 (D.N.J. 1989), aff'd,
879 F.2d 861 (3d Cir. June 27, 1989).

Some Commentators have questioned the empirical basis
for this justification, which "derives from an essentially
Freudian model of psychoanalysis." Note, Developments in the
Law-Privileged Communications, 98 Harv.L.Rev. 1450, 1542-
44 (1985); cf. Shuman and Weiner, The Privilege Study: An
Empirical Examination of the Psychotherapist Privilege, 60
N.C.L.Rev. 893, 919-20 (1982). Moreover, it is clear that
Congress' decision to pass Rule 501 rather than the Advisory
Committee's version (which included specifically enumerated
privileges of specifically articulated scope), as well as its sug-
gestion that the rules of privilege be adopted on a "case-by-

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54a

vacy. 21. At the same time, it would impair the truth-
seeking process by shielding potentially relevant
evidence from the fact-finder, and ultimately limit the
effectiveness of federal prosecutions. 1 am persuaded
by the courts and commentators that have argued
that in some cases, the former interests outweigh the
latter. See, e.g., In re Doe, 964 F.2d 1325, 1328 (2d
Cir.1992); In re Zuniga, 714 F.2d 632, 639 (6th Cir.),
cert. denied, 464 U.S. 983, 104 S. Ct. 426, 78 L.Ed.2d
361 (1983); Grand Jury Subpoena, 710 F.Supp. at
1012; Cunningham v. Southlake Center for Mental
Health, Inc., 125 F.R.D 474,477 (N.13. Ind. 1989) ("[i]t
seems clear that the Seventh Circuit would recognize
a psychotherapist-patient [privilege] in the pre-
sent case because the information sought regarding
Cooper's sessions with Dopson and her alleged
              
___________________(footnotes)

case" basis, undermines any utilitarian justification for the
privilege. Individuals undergoing therapy are not as likely to
rely on the existence of a psychotherapist-patient privilege
when its application and scope varies from case to case and
from district to district.

Notwithstanding these reservations, I do believe that the
utilitarian justification holds some intuitive appeal. The reser-
vations are important to keep in mind, however, when apply-
ing the privilege in any individual case.

21 The cases reference two aspects of the Constitutional
protection of privacy:

One is the individual interest in avoiding disclosure of
personal matters, and another is the interest. in indepen-
dence in making certain kinds of important decisions.

Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51
L.Ed.2d 64 (1977), cited with approval in In re Grand Jury
Subpoena, 710 F.Supp. 999, 1008 (D.N.J), aff'd, 879 F.2d 861
(3d Cir. June 27, 1989). Both aspects are implicated when
statement made to a psychotherapist are disclosed, See Grand
Jury Subpoena, 710 F.Supp. at 1008-09.

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55a

revelations to Dopson involve substantial accounts of
therapy sessions'") (citing In re Pebsworth, 705 F.2d
261, 263 (7th Cir. 1983)); Jack B. Weinstein and
Margaret A. Berger, Weinstein's Evidence 504-21-
504-23 (1993); Note, Developments in the Law-
Privileged Communications, 98 Harv.L.Rev. 1450,
1548-55 (1985). Thus, the court will recognize the
psychotherapist-patient privilege.
The decision to recognize the psychotherapist-
patient privilege does not end the court's inquiry,
however. Privileges judicially created or recognized
under Rule 501 are not absolute. This is especially
true with respect to the psychotherapist-patient
privilege, which has been treated (by those courts
that have recognized it) as "highly qualified." See In
re Doe, 964 F.2d at 1328 ("[i]ndeed, the privilege
amounts only to a requirement that a court give
consideration to a witness's privacy interests as an
important factor to be weighed in the balance in
considering the admissibility of psychiatric histories
or diagnoses"). Cf. Zuniga, 714 F.2d at 640; Grand
Jury Subpoena, 710 F. Supp. at 1013-14; Cunning-
ham, 125 F.R.D. at 476-77 (all recognizing the
privilege in the abstract, but declining to apply it to
preclude discovery or admissibility). Consistent with
the case-by-case approach mandated by Rule 501, the
court must now consider whether, in the instant case,
the privilege should apply to D.F.'s statements.
Courts applying the privilege have limited its scope
in at least two ways. Some courts have applied an
interest-balancing  analysis, while others "have
displayed a definitional analysis. 22. Under both ap-

___________________(footnotes)
                                                 
22 Under what I have called a "definitional" analysis, the
court adopts and applies to the individual factual situation a

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56a

preaches, the focus, as I have described above, has
been on limiting, or "qualifying," the scope of the
privilege. These limits present serious difficulties
for D.F.'s invocation of the privilege.

___________________(footnotes)

certain definition of privileged communications and a set of
exceptions to the privilege.  See Cunningham v. Southlake
Center for Mental Health, Inc., 125 F.R.D. 474, 477 (N.D. Ind.
1989); "of. In re Grand Jury Subpoena, 710 F. Supp. 999, 1013
(D.N.J.1989) ([i]ndeed, this case suggests the need to expand
the range of exceptions to the privilege beyond those contained
Proposed Rule 504"), aff'd, 879 F.2d 861 (3d Cir. June 27,
1989). For most courts, such an analysis will differ little
an interest-balancing analysis, as the contours of the definition
of privileged communications and the scope of the exceptions
will be based on a balancing of the interests at stake. See, e.g.,
Grand Jury Subpoena, 710 F. Supp. at 1013-15 (creating an
exception to the Advisory Committee's Proposed Rule 504
based on the weight of the interests at stake).

In my discussion below, I apply an interest-balancing analy-
sis, and arrive at the conclusion that the privilege should not be
applied in this case. It is worth noting, however, that the
result would be no different under a definitional approach.
D.F. would have difficulty showing that her statements (1)
were confidential (2) were made to medical personnel covered
by the privilege; and (3) "would not be excepted from the
privilege (a) based on a criminal trial exception, (b) based on a
homicide trial exception, (c) based on a child abuse exception
or (d) based on an exception for individuals posing dangers to
others. See generally Proposed Rule 604, reprinted in Jack B.
Weinstein and Margaret A. Berger, Weinstein's Evidence 504-1,
5041-2 (1992); Cunningham v. Southlake Center for Mental
Health, Inc., 125 F.R.D  474, 477 (N.D. Ind. 1989) (absent
showing of close supervision, extension of privilege to commun-
ications with social worker is unwarranted); Brian Domb, I
Shot the Sheriff, but Only My Analyst Knows: Shrinking
the Psychotherapist-Patient Privilege, 5 J.L. & Health 209
(1990/91) (discussing the scope of the privilege and of the
various exceptions).

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57a

Under an interest-balancing approach, the court
must consider the extent to which the justifications
for the privilege-the interests in effective therapy
and in privacy-are promoted under these facts, and
whether those interests outweigh the Government's
(and, indeed, the system's) need for the information.
Several aspects of this case suggest that the
utilitarian gains from the privilege would be minimal.
First, the interest in effective therapy will only be
served to the extent that D.F., a fourteen year-old
girl, understood the implications of disclosure. Al-
though she had had some experience in the justice
system, it is not clear that D.F. realized the serious
consequences a charge of murder would bring.
Second, to the extent that she did understand the
consequences of disclosure, there is evidence in the
record to suggest that she believed that the staff at
the Center was required to disclose her statements,
i.e., that the privilege would not protect her
statements. To the extent that that is the case, the
privilege would have been irrelevant; it would not
have served any utilitarian purpose. Third, to the
extent that D.F.'s "therapy" at the Center was
compelled or coerced (see discussion below), the
existence of the privilege likely provided only
marginal utilitarian gains.
Application of the privilege in this case would do
very little to promote privacy interests. The facts of
this case suggest that, regardless of whether this
court finds that D.F.'s statements were privileged,
her personal privacy has already been seriously
compromised.  The statements have already been
widely disseminated amongst both governmental
officials and other patients. Moreover, any residual

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58a

privacy concerns the court might have are tempered
by the private nature of this juvenile proceeding. 23.
Under the facts of this case, application of a
psychotherapist-patient privilege would also do very
little to promote personal autonomy. Because D.F. is
a juvenile, her decisional independence in matters of
physical and mental health is limited anyway many of
these decisions will be made by parents, relatives, or
guardians. Moreover, D.F. didn't appear to have any
chance to exercise what little decisional independence
she did have she was admitted to the Center as a
direct result of her involvement with the criminal
justice system. 24.
On the other hand, the interests weighing against
the privilege in this case are considerable., The
Government believes that the two infants involved
were murdered. D.F.'s statements are clearly rele-
vant to that charge. In fact, the Government has sug-
gested that that charge cannot be sustained without
that evidence. 25. Thus, nondisclosure would signifi-
cantly impair both law enforcement interests and a
general interest in the truth-seeking process.
In sum, disclosure of D.F.'s statements would not
significantly impact utilitarian or privacy interests.

___________________(footnotes)

23 Although the Magistrate has granted media access to the
proceedings, that access is subject to strict limitations.

24 As I discussed earlier, D.F. did have some control over her
status as a patient at the Center. Moreover, she also had some
control over the extent to which she would cooperate with staff
and participate in treatment. Nevertheless, her overall de-
cisional independence was very limited.

25 "This action [the Magistrate's suppression of D.F.'s  state-
ments], if upheld, would result in the termination of the
government's case." Government's objection to Magistrate's
Recommendation at 2. 

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59a

On the other hand, nondisclosure would seriously
impact Government law enforcement interests as well
as the truth-seeking process that is an integral part
of our justice system.
Ultimately, this case should not be decided on
nonconstitutional grounds. Absent the constitutional
dimension of this case, I would be extremely reluctant
to suppress D.F.'s statements. If D.F. were a critical
defense witness in a murder case, and the Govern-
ment could not impeach her without her statements
to her psychotherapist, I would not hesitate to order
or allow disclosure. This case is only difficult
because D.F.'s statements amounted to a confession
of murder. A confession made under circumstances
such as those present here inherently raises consti-
tutional concerns. This case should be decided based
on those concerns.
          
II

In his recommendation, the Magistrate found no
violation of the Fifth Amendment's protections
against self-incrimination. D.F. objected to this
aspect of the recommendation.
The Fifth Amendment provides an absolute priv-
ilege against self-incrimination in a criminal trial:
"nor shall any person. . . be compelled in any criminal
case to be a witness against himself". Although the
question has never been clearly addressed by the
Supreme Court, there seems to be little doubt that
the privilege applies in juvenile proceedings. See In
re Gault, 387 U.S. 1, 30- 31, 87 S. Ct. 1428, 1445, 18
L.Ed.2d 527 (1967); Fare v. Michael C., 442 U.S. 707,
717-18, 99 S. Ct. 2560, 2567-68, 61 L.Ed.2d 197 (1979);
United States v. Fowler, 476 F.2d 1091, 1092 (7th Cir.
1973).

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60a

As a general matter, the Fifth Amendment priv-
ilege against compelled self-incrimination is not self-
executing; "it may not be relied upon unless it is
invoked in a timely fashion." Roberts v. United
States, 445 U.S. 552, 559, 100 S.Ct. 1358, 1364, 63
L.Ed.2d 622 (1980). The Miranda warning of the
right to remain silent is a limited exception to this
general rule; it doesn't "apply outside the context of
the inherently coercive. custodial interrogations for
which it was designed." Id. at 560, 100 S.Ct. at 1364.
D.F. did not invoke her privilege against self-
incrimination. 26. On the other hand, she was not
provided with any Miranda warnings. Thus, D.F.'s
privilege against self-incrimination was violated if
and only "if she was subjected to "custodial
interrogation" for the purposes of Miranda.
D.F. makes a strong argument both that she was in
custody and that the "therapy" to which she was
subjected was the functional equivalent of interro-
gation. Clearly, her freedom of action was curtailed
in a significant way. Miranda v. Arizona, 384 U.S.
436, 467, 86 S. Ct. 1602, 1624, 16 L.d.2d 694 (1966).
Moreover, it could be argued that she was subject to
the functional equivalent of express questioning
during her therapy sessions. Rhode Island v. Innis,
446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90, 64
L.Ed.2d 297 (1980). Certainly, the staff at the center
should have known that their practices were "reason-
ably likely to elicit an incriminating response" from
D.F. Id. at 301, 100 S.Ct. at 1689.   

___________________(footnotes)
                       
26 D.F. did invoke her privilege against self-incrimination on
April 22. (Ex. 12.) Any statements made after that time could
be suppressed on that basis.

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The Court in Miranda was concerned with chang-
ing police procedures. It described its concerns over
atmospheres that are "police-dominated". Miranda,
384 U.S. at 456, 86 S. Ct. at 1618. It illustrated the
problem it was addressing through extensive refer-
ence to police manuals. Id. at 448-55, 86 S. Ct. at 1614-
17. Most importantly, it created a bright-line rule
that could be easily translated to police manuals and
police training sessions." Id. at 479, 86 S.Ct.. at 1630.
Courts have been reluctant to expand the Miranda
requirements to questioning by officials outside the
law enforcement community. 27. Whether this reluc-
tance is explained in agency terms, see, e.g., United
States v. Eide, 875 F.2d 1429, 1433-44 (9th Cir. 1989);
                                               
___________________(footnotes)                                    

 27  At  first glance, the logic behind the Supreme Court's
opinion in Estelle v. Smith, 451 U.S. 454, 466-67, 101 S.Ct. 1866,
1874-75, 68 L.Ed.2d 359 (1981), would appear to apply equally
to the instant case. In that case the Court held that the results
of a court-ordered psychiatric examination could not be used as
affirmative evidence to persuade a jury to return a sentence of
death. Id. As in Estelle, during therapy sessions, D.F. was
clearly "not in the presence of [a] perso[n] acting solely in  . . . . 
[her] interest."  Id. at 467, 101 S. Ct. at 1875 (citing Miranda
v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 1625, 16 L. Ed.2d
694 (1966)). I am reluctant to apply Estelle here, however, for
at least three reasons: first, in Estelle, the defendant was
clearly in custody (he was in prison); second, the psychiatrist in
Estelle was working directly for law enforcement; third, as a
practical matter, because of the direct law enforcement in-
volvement in Estelle, requiring warnings still served the
fundamental purpose of Miranda (albeit in a new context).
The court notes, however, that in a case similar to the one at
bar, a juvenile counselor who was required. to report any
confessions to the police was considered "an instrument of the
police," and thus, a juvenile who had confessed to him was
entitled to Miranda warnings.  See Commonwealth v. A
Juvenile, 402 Mass, 275, 521 N.E.2d 1368, 1370-72 (1988).

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United States v. Webb, 755 F.2d 382, 391-92 (5th
Cir. 1985);  United States  v. Capra., 501 F.2d 267, 282 n.
4 (2d Cir. 1974), cert. denied, 420 U.S. 990, 95 S. Ct.
1424, 43 L.Ed.2d 670 (1975); United States v.
Antonelli 434 F.2d 335, 336-37 (2d Cir. 1970); Corn-
gold v. United States, 367 F.2d 1, 5 (9th Cir. 1966), in
custody terms, see, e.g., United States v. Rucker, 435
F.2d 950 (8th Cir. 1971); Wayne R. LaFave and Jerold
H. Israel, Criminal Procedure 6.10(C) (1984 and
Supp. 1991) (suggesting that most of the agency cases
could also be explained in terms of custody), or in
interrogation terms, See, e.g., United States v.
Morales, 834 F.2d 35, 38 (2d Cir. 1987), it ultimately
comes down to a reluctance to apply a bright-line
prophylactic rule to situations where there is no
direct law enforcement involvement.
Imposing a Miranda requirement on the staff at
the Center would be inconsistent with the motiva-
tions behind Miranda's essentially inculcative
approach. 28. The history of abuse that motivated the
Court in Miranda is conspicuously absent here. The
court is not aware any widespread pattern of
overreaching by mental health officials seeking to
elicit confessions. Moreover, any requirement that
 the court might fashion here would be anything but
bright-line. Thus, the court will not decide this case
on Miranda grounds.

___________________(footnotes)
                    
28  At least with respect to the admissions that D.F. "made to
Ms. K. on April 5. It is possible that such Miranda warnings
should have been given after April 16, when Ms. K. began
"cooperating" with the F.B.I. Given the nature of the court's
holding in Part III, I need not decide that issue.

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III

D.F. also argues that use of her statements against
her would violate the Due Process Clause of the Fifth
Amendment. In his recommendation, the Magistrate
did not address this aspect of D.F.'s motion.
The Due Process Clause of the Fifth Amendment
provides that no person shall "be deprived of life,
liberty, or property, without due process of law." The
guarantees of due process apply to juvenile proceed-
ings. Gault, 387 U.S. at 30, 87 S. Ct. at 1445. The
admission of involuntary confessions violates due
process. See, e.g., Miller v. Fenton, 474 U.S. 104,
109-10, 106 S. Ct. 445, 449-50, 88 L.Ed.2d 405 (1985).
"[AI confession will be adjudged 'voluntary' if the
government demonstrates that under the totality of
the circumstances and by a preponderance of the
evidence that it was not secured through psycho-
logical or physical intimidation but rather was the
'product of a rational intellect and free will.'" United
States v. Montgomery, 14 F.3d 1189, 1194 (7th Cir.
1994). Cf. Blackburn  v. Alabama, 361 U.S. 199, 208, 80
S. Ct. 274, 280, 4 L.Ed.2d 242 (1960); Rogers v.
Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 741, 5
L.Ed.2d 760 (1961). 29. The "crucial question" is
whether the defendant's will was overborne at the
time he confessed, "and the answer lies in whether
the authorities obtained the statement through coer-
        
___________________(footnotes)

29 "Its essence is the requirement that the State which
proposes to convict and punish an individual produce the evi-
dence against him by the independent labor of its officers, not
by the simple, cruel expedient of forcing it from his own lips."
Culombe  v. Connecticut, 367 U.S. 568, 582, 81 S.Ct. 1860, 1867, 6
L.Ed.2d 1037 (1961) (citing, among other authorities, Black-
burn W. Alabama, 361 U.S. 199, 80 S. Ct. 274, 4 L.Ed.2d 242
(1960)).

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cive means."  Montgomery, 14 F.3d at 1194. In
deciding this question, the court must consider both
"the characteristics of the accused and the details of
the interrogation in determining whether a reason-
able person would feel coerced." Id. at 1194-95. In
reviewing the totality of the circumstances, the court
may look at a number of factors, including "the age of
the defendant, his lack of education or low intelli-
gence, the lack of any advice to him of his consti-
tutional rights, the length of his detention, the re-
peated and prolonged nature of the questioning, and
the use of physical punishment." Id. at 1194-95.
The Government argues that, as a threshold
matter, D.F.'s statements were not involuntary
because there is no evidence that they were brought
about by police overreaching.  In Colorado v.
Connally, the Supreme Court, in reversing the Colo-
rado courts suppression of a confession as involun-
tary, held that "coercive police activity is a necessary
predicate to the finding that a confession is not
`voluntary' within the meaning of the Due Process
Clause of the Fourteenth Amendment." 479 U.S. 157,
167, 107 S.Ct. 515, 521-22, 93 L.Ed.2d 473 (1986). The
Government argues that, because the police were not
directly or indirectly involved in eliciting D.F.'s
statements, those statements cannot be considered
involuntary under Connelly. 
This narrow reading of Connelly misses the point.
At first blush, the language of the opinion appears to
suggest a narrow police or law enforcement focus.
See Connelly, 479 U.S. at 163-65, 107 S.Ct. at 519-20.
Upon closer scrutiny, however, the opinion and facts
of the case suggest otherwise. In Connelly, the
Colorado Supreme Court had found that, because of
the defendant's mental state at the time, his confes-
        
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65a

sion had not been "the product of a rational intellect
and free will." Id. at 162, 107 S. Ct. at 519. As a result,
the confession was deemed "involuntary," notwiths-
tanding the fact that the case involved no govern-
ment wrongdoing or coercion, Id. The Supreme
Court reversed, holding that government coercion or
overreaching was a necessary prerequisite to an
involuntariness  finding:

The difficulty with the approach of the Supreme
Court of Colorado is that it fails to recognize the
essential link between the coercive activity of the
State, on the one hand, and a resulting confession
by a defendant, on the other. The flaw in
respondent's constitutional argument is that it
would expand our previous line of 'voluntariness'
cases into a far-ranging requirement that courts
must divine a defendant's motivation for speaking
or acting as he did even though there be no claim
that the governmental conduct coerced his
decision.

Id. at 165-66,107 S. Ct. at 521. The Court in Connelly
simply wanted to make it clear that confessions un-
affected by outside governmental coercion or coerced
by private citizens should not be suppressed as
involuntary.
The Government's reading of Connelly would, in
this court's view, lead to absurd results. State
legislators could enlist government employers, wel-
fare workers, and mental health workers as surrogate
interrogators by setting up mandatory reporting

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requirements. 30. As long as the police had no involve-
ment in this enlistment, Due Process protections
would not bar the use of any incriminating state-
ments. Such an approach simply does not pass muster
in today's world. Just as the courts have recognized
that the Constitution protects against psychological,
as well as physical coercion, 31. so must they recognize
that in this day of extensive government involvement
in people's lives, State coercion is not the exclusive
province of the police department. 32.
I do not mean to suggest that Connelly does not
require a threshold inquiry "into State coercion. I
only suggest that that inquiry can go beyond the
actions of traditional "law enforcement" personnel 33.
to the actions of the juvenile court system, the legis-
lature, other government officials, and the reasonable
feelings of the defendant.
In the instant case, that inquiry reveals the neces-
sary official coercion, "the essential link between the
coercive activity of the State, on the one hand, and a

___________________(footnotes)
                      
30 In fact, under the Government's reading Connelly would
bar an involuntariness finding in the instant case even if the
Wisconsin reporting requirements were mandatory.

31 See Spano v. New York, 360 U.S. 315, 321, 79 S.Ct. 1202,
1206, 3 L. Ed.2d 1265 (1959).

32 This is not  inconsistent with the court's  reluctance to find
the necessary official action here to trigger Miranda. See
supra Part II. Given the history and motivation behind the
Miranda warnings, certain State action can trigger due pro-
cess protections without triggering Miranda protections. See,
e.g., United States v. Goldberger, 837 F.Supp. 447, 452-53
(D.D.C.1993) (no Miranda required because no custody, but
confession found involuntary).

33 I.e. police, other criminal investigators, and prosecutors.

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resulting confession by a defendant, on the other." 34.
Connelly, 479 U.S. at 165, 107 S.Ct. at 520-21.
Clearly, this case involves coercion-indeed, a bit of
overreaching-by government  officials. Staff
members at the Center were either enlisted or
volunteered 35. to act as law enforcement surrogates in
eliciting confessions from troubled teens. There is
extensive evidence in the record of the close
relationship  between staff at the Center and
Protective Services, the juvenile court system, and
the F.B.I. There is also evidence that many of the
staff at the center saw themselves as an arm of law
enforcement. Moreover, it would be totally reasonable
for a child of D.F.'s age, intelligence, and mental state
to believe that she  was being "encouraged" to talk
by, effectively, law enforcement personnel.
As a result, I must consider whether D.F.'s
confession was "voluntary." As I noted above, that
determination must be made based on the totality of
the circumstances, including the characteristics of
the accused and the details of the interrogation.
Montgomery, 14 F.3d at 1194-95. Ultimately, the
court must determine whether D.F.'s will was
overborne at the time she confessed.  Id. at 1194.
     
___________________(footnotes)         
       
34 Initially, the court notes that given the dose relationship
between staff at the Center and Protective Services, the
juvenile court system, and the F.B.I., the agency relationship
that the Government reads into Connelly may in fact exist.
Given the foregoing analysis, however, the court need not
decide that question.

35 Whether one thinks the staff members were enlisted by
the state or volunteered depends upon one's reading of the
Wisconsin reporting provisions. As I discussed earlier, I am not
convinced that the Wisconsin reporting provisions permit dis-
closure of confessions such as D.F.'s.

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Because D.F. was a" juvenile at the time of her
confession, the court must exercise "great care . . . to
insure the voluntariness" of her confession. Woods v.
Clusen, 794 F.2d 293, 298 (7th Cir. 1986) (citing Haley
v. Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 304, 92 L.Ed.
224 (1948)); cf. Gault, 387 U.S. at 55, 87 S.Ct. at 1458.
D.F., a, deeply disturbed girl of 13, was admitted
against her will into a program at a locked facility in
[redacted] County. She suffered from a pervasive
mistrust of authority figures. Staff at the Center
went to great lengths to encourage arid develop her
trust. They also employed a wide range of tactics to
"encourage" her to "talk about the crimes she had
committed. Privileges were accorded based on, among
other things, frank admission of crimes. Criminal
admissions were forgiven subject to continued
cooperation and disclosure. Individual staff ques-
tioned D.F. directly about her past crimes.
Protective Services Staff were provided with infor-
mation about her dries, and were allowed to ques-
tion her about further crimes.
Staff at the Center were aware that D.F. was
suspected of playing a role in her cousins' deaths.
They felt that she needed to talk about her involve-
ment, both for therapeutic and punitive reasons.
Consequently, they "encouraged" her to talk about it.
D.F. "resisted this "encouragement" for four
months. This may" or may not have been due to the
statements of certain staff, who warned D.F. that
they might have to "report" any incriminating state-
ments she made. There is no evidence, however, that
D.F. was ever fully warned of the consequences of a
confession. Moreover, the evidence suggests that the
warnings were minimal, and that, in any event, they

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never included any mention of D.F.'s Fifth Amend-
ment privilege of self-incrimination.
Finally, in April 1993, D.F. confessed to killing her
two young cousins. Staff immediately reported the
confession to Protective Services, and later coop-
erated with the F.B.I.'s investigation. At the same
time, staff pressured D.F. to repeat and expand upon
her confession, even after she had retained an attor-
ney and invoked her Fifth Amendment privilege
against self-incrimination. As a result, D.F. made a
number of additional incriminating statements in the
ensuing weeks.
After considering the totality of the circumstances,
I conclude that D.F.'s inculpatory statements were
secured through psychological coercion and were not
the "product of a rational intellect and free will."
Blackburn, 361 U.S. at 208,80 S.Ct. at 280. Given the
circumstances under which they were employed, the
various "encouragement" techniques employed by the
staff were highly coercive. A reasonable person of
D.F.'s age, intellect, and mental state would have felt
coerced In sum, D.F.'s confession was not "volun-
tary" within the meaning of the Due Process Clause
of the Fifth Amendment.

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CONCLUSION

For the reasons set forth above, the court finds that
Government use at trial of statements made by
D.F. in the course of her therapy would violate
the Due Process Clause of the Fifth Amendment.
Accordingly,
IT IS ORDERED that D.F.'s motion to suppress
evidence be and the same is hereby GRANTED. All
statements, made to any counselor, therapist, or treat-
ment worker at the [redacted] County Mental Health
Center are hereby suppressed.

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APPENDIX C

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

Case No. 93-Cr-202

UNITED STATES OF AMERICA, PLAINTIFF

v.

D.F., DEFENDANT
      
[Filed: Apr. 13, 1994]
        
RECOMMENDATION TO THE HONORABLE
J. P. STADTMUELLER AND ORDER
                                      
Two infant children, sisters, were tragically found
dead in their parents' house six days apart. The
medical examiner attributed the first death to Sudden
Infant Death Syndrome and the second death to influ-
enza. A subsequent opinion offered by a different
medical examiner found both deaths to be consistent
with suffocation. On November 17, 1993, the United
States filed a two count information charging D.F., a
juvenile, in each count with murder in the second
degree, in violation of 18 U.S.C. 1111, 1153 and 5031.
D.F. made an initial appearance before this court on
November 18, 1993.  A delinquency hearing is
scheduled before Judge J.P. Stadtmueller on April 25,

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1994, with a final prehearing conference to be con-
ducted on April 20, 1994. Currently pending before
the court are D.F.'s. motions to suppress evidence,
motion for a jury trial and motion for notice of un-
charged misconduct evidence. The motions have been
fully briefed and are ready for resolution.
    
Motion to Suppress Statements

D.F. moves to suppress all statements which were
made to any counselor, therapist or treatment worker
attributed to D.F. while she was confined in the [-]
Mental Health Center.  The court conducted an
evidentiary hearing regarding this motion commenc-
ing February 3, 1994: Testifying at the hearing were
treatment counselors B[-] K[-] and R[-]
M[-], registered nurse P[-] S[-] [-], and
nursing assistants L[-] B[-], S[-] A[-],
D[-][-],S[-] V[-] and D[-]
M[-]. All of these witnesses were employed by
the[-] Mental Health Center during the period of
D.F.'s treatment.
The parties have agreed upon many of the under-
lying facts, and the court commends the parties for
their extensive efforts in this regard. The court
would further note that the testimony presented few,
if any, factual disputes, Rather, the dispute between
the parties focuses upon the significance of the events
which transpired. The court makes the following
findings of fact:
At all times relevant to the suppression motion,
D.F. was a juvenile, thirteen to fourteen years of age.
On December 4, 1992 D.F. was admitted to the locked
adolescent unit of the [-] Mental Health Center
where she resided at all times relevant to the sup-
pression motion. Her admission was  voluntary, al-

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though she was under court supervision at the time,
and a condition of her supervision was that she coop-
erate with recommended counseling, had she not been
voluntarily admitted, she may have been ordered into
treatment.
The conditions of confinement have certain simil-
arities to a low security custodial setting. The
clients are not permitted to leave the adolescent unit
freely, although they may generally move about with-
in the unit. The clients are outside of the unit on
many occasions, including visits to the main dining
room and the school. At the age of thirteen, D.F.'s
guardian could sign her out for up to four hours if
approved; after turning fourteen on March 17, 1993,
D.F. could sign herself out for this period, if approved.
A client can leave permanently, but only after a forty-
eight hour waiting period which allows the medical
director an opportunity to seek involuntary place-
ment under Wisconsin law. After returning from a
pass, clients are subjected to strip searches for con-
traband. At various times, a client might be confined
to her room for disciplinary reasons or, when suicide
prevention is a concern, may not be allowed out of the
unit unescorted.
R[-] M[-] is an Alcohol and Drug Abuse
Counselor at the facility. On December 11, 1992, M
[-] met with D.F. and explained the rules the pro-
cedures regarding matters of confidentiality. At the
time of D.F.'s admission, the [-] Mental Health
Center was developing its policies with regard to
informing patients of matters relating to child abuse
which would not be kept confidential. M[-] ex-
plained to D.F. that "any information about suspected
child abuse or neglect . . ." was not protected by
confidentiality. D.F. acknowledged this in writing

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and M[-] testified that D.F. did not appear to have
any difficulty understanding this explanation.  See
Exhibit B-1.
During the next week, M[-] was in contact with
N[-]M[-], a caseworker from the [-] County
Department of Human Services, regarding D.F.'s
sexual activity with adult men. During their discus-
sions, M[-] told M [-] that D.F. was suspected in
the death of two of her cousins and that there were
also concerns of D.F. being violent toward other
cousins, breaking arms or legs. M[-] was advised
that nothing had ever been proven and the deaths
were attributed to Sudden Infant Death Syndrome or
influenza. Exhibit B-2.
M[-] testified that this information caused him
to have a heightened sensitivity to the issues of
confidentiality and reporting. At this point in time,
M[-] believed that any information concerning the
abuse of a juvenile, either a juvenile patient who was
the subject of abuse or a patient who caused the abuse
of a juvenile, had to be reported to the authorities,
Consequently, M[-] made a point of telling D.F.
that any disclosures about hurting or killing a child
would have to be reported to Protective Services and
ultimately to law enforcement. To this end, M[-]
told D.F. that she should be cautious about what she
said, and that it was her choice to not speak about any
incidents. M[-] estimated that he warned D.F.
approximately ten times and recorded notes about his
warnings in her chart about four times. See, e.g.,
Exhibits A-1, B-4.
D.F. was aware that her admissions would be
reported and for several months she avoided dis-
closing her actions. On January 7, 1993, for instance,
D.F. was asked if she had ever murdered anyone and

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responded, "I  can't answer that." Defense Exhibit 11.
On January 8, 1993, D.F. was asked if she had ever
murdered anyone and she did not respond. Exhibit B-
3. Around the same time, she told staff members that
if they knew all the people she had hurt it would get
her in trouble. Tr. 239. Another time she. told her
aunt that if everything she had done were disclosed
she would have to go to jail for a long time.  Exhibit B-
4. On March 17, 1993 D.F. told a staff member, when
encouraged to talk with staff, "I can't. You have to
report what I say." Exhibit C-5. 
Despite D.F.'s reluctance to discuss her past
actions, the staff continued its efforts to have D.F.
truthfully verbalize her past conduct. Ultimately,
over a period of time, D.F. made limited disclosures
about her past conduct and alluded to the severity of
her conduct. For instance, on January 1, 1993, D.F.
was instructed by a Person In Charge ("PIC") for a
particular shift to make a list of all the people she had
hurt in the past, which was embodied in Exhibit C-3.
See also Exhibit D-1. After D.F. disclosed that she
broke her cousin's arm, D.F. was told, on March 2,
1993, that a tentative" decision had been reached by the
[-] County Human Services Department to refrain
from charging D.F. for this act of violence toward her
cousin if D.F. continued to make treatment progress.
On April 5, 1993, she made a specific statement
regarding her fatally assaultive behavior toward her
two [-]. This was followed by several similar
disclosures over the next several weeks. D.F.'s
disclosures regarding her [-] appear to have been a
culminating response to continuing urging and
encouragement she was given as part of her treat-
ment by the hospital staff to fully disclose the wrongs
of her past.

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D.F.'s treatment program had several express
objectives, including to develop trust and avoid telling
lies. To this end, the clients are given a variety of
incentives to discuss personal matters. For instance,
each client is instructed to have at least one contact
with the PIC for a particular shift. Failure to initiate
a contact or to follow instructions could result in
either the loss of points or the award of fewer points
under a point based incentive system. Likewise, the
clients were awarded or assessed points for their
participation in group sessions. The loss of points
could lead to the loss of various privileges, or to
disciplinary measures such as "Base O," in which the
client was confined to her room for a period of time,
had to dress in her, hospital robe and complete a
particular reading and writing assignment.
D.F.'s disclosure on April 5, 1993 occurred while
D.F. was participating in a group session with other
juveniles, led by B[-] K[-]. The juveniles in the
group were discussing serious things they had done
in their lives. One of the group was discussing an
incident and the others in the group were telling him
that he should be more honest. D.F. responded by
saying words to the effect of "Oh, you think what you
did is bad, let me tell YOU what I did . . . . " D.F. pro-
ceeded to disclose details of the events surrounding
the two deaths.
On April 6, 1993, the staff conducted a meeting in
which K[-] told persons present about D.F.'s dis-
 clousures. D[-] V[-], a liaison from the Depart-
ment of Social Services, went, without any staff
discussion, to the telephone and reported D.F.'s dis-
closures to Protective Services. The matter made its
way through various channels and ultimately, the
F.B.I. initiated an investigation.

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Meanwhile, there were ongoing discussions
amongst the staff as to whether this matter should
have been reported, in what fashion and what level of
cooperation was appropriate. Initially it was believed
that there was no choice under Wisconsin law but to
report D.F.'s disclosures. Around April 16, 1993,
however, K[-] learned that the confidentiality and
reporting law, Sec. 48.981, Wis. Stat. does not
mandate, but may permit, reporting when a juvenile
discloses that she was the perpetrator of abuse.
Reporting is only mandatory to the extent that a
juvenile admits being the victim of abuse.
In the days and weeks which followed, D.F. con-
tinued to discuss the deaths with the treatment staff
on various occasions. On April 22, 1993, K[-] was
contacted by an attorney in [-] who had been
appointed to be D.F.'s public defender, K[-] was
present when the attorney spoke with D.F. and told
D.F. not to speak with anyone about the case-either
law enforcement or tribal authorities. D.F. signed a
statement indicating that she did not want to speak
with anyone unless her attorney was present. Defen-
dant's Exhibit 12.
The infants' deaths were the topic of discussion
between K[-] and D.F.'s family on April 23, 1993
and again on May 10, 1993. Exhibit A-6, A-8. As of
April 23, 1993, K[-] was considering the appro-
priate level of cooperation with the F.B.I. and advised
the family to "keep discussions of the death confined
to the session, so that they could be protected by
confidentiality."

Analysis

The parties focus upon the issue of whether the
admission of D.F.'s statements would be in violation

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of the Fifth Amendment and her rights under
Miranda v. Arizona, 384 U.S. 436, 479 (1966). D.F.
contends that over the course of her treatment she
was not free to leave, that the treatment staff were
acting as agents of the police in memorializing and
reporting incriminating statements and that the
course of her treatment constituted interrogation
intending to get her to make inculpatory admissions.
The government contends that her statements were
voluntary disclosures. made free from any coercive
effects and that, although D.F. was never advised of
her Miranda rights, she was not subjected to
custodial interrogation by law enforcement which
would invoke the protections of Miranda and the
sanctions of the exclusionary rule.
A person in custody must be informed, prior to
interrogation, of her right to remain silent and to
have a lawyer present. Miranda v. Arizona, 384 U.S.
436, 479 (1966). In a Conventional context, Miranda
deals with the interrogation of an accused, alone in an
investigator's office, in which the "atmosphere sug-
gests the invincibility of the forces of the law." 384
U.S. at 449-50. 
The present case is not the conventional context of
interrogation. However, the juvenile contends that
the entire five month course of her residential treat-
ment in the locked adolescent unit of the Mental
Health Complex was equivalent to custodial interro-
gation and therefore, the safeguards of Miranda
apply.
This is a case about privilege; the privilege of
communications which may arise between a patient
and a psychotherapist, and in a related sense, the
privilege against self-incrimination. Unquestionably,
this case presents a tragic situation. Two infants are

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dead, and their family grieves. D.F.'s background and
present circumstances are also tragic. At a mini-
mum, she has very serious emotional and psychologi-
cal problems. From a legal standpoint, the case im-
plicates rights which are the very foundation of our
constitution. As stated in Miranda, 484 U.S. at 460
(citations and internal quotations omitted), the priv-
ilege against self-incrimination,

developed as one which groped for the proper
scope of governmental power over the citizen . . . 
the privilege has come rightfully to be recognized
in part as an individual's substantive right, a
right to a private enclave where he may lead a
private life. . . . [T]he constitutional foundation
underlying the privilege is the respect a govern-
ment-state or federal-must accord to the
dignity and integrity of its citizens. To maintain
a fair state-individual balance, to require the
government to shoulder the entire load . . . to
respect the inviolability of the human
personality, our accusatory system of criminal
justice demands that the government seeking to
punish an individual produce the evidence against
him by its own independent labors, rather than by
the cruel simple expedient of compelling it from
his own mouth.

D.F. was in treatment because she had demon-
strated significant problems in her psychological
development. Communications between a patient and
a psychotherapist in a treatment setting typically
involve far more intensely personal information than
communications to other kinds of doctors, Doe v.
Diamond, 964 F.2d 1325, 1328 (2d Cir. 1992), delving
into matters at the core of the human personality. It

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is notable that Miranda was principally directed
toward the use of psychological, not physical, factors
involved in an interrogation, toward protecting the
"inviolability of the human personality." Miranda,
484 U.S. at 460. This unique case presents an
unusual convergence  between the privilege against
self incrimination and the privilege of communi-
cations between a psychotherapist and patient.
The parties focus solely upon the privilege against
self incrimination. At the outset of the hearing,
counsel for the juvenile indicated that the privilege
question would be reserved for a motion in limine, but
the facts elicited at the evidentiary hearing compel
the court to start with the question of a psycho-
therapist-patient privilege. The court regrets that it
does not have the benefit of the parties' briefing as to
this issue, but given the unusual interplay of privil-
eges and the facts of this case, the court must address
the matter at this juncture.
Rule 501, Fed. R. Evid., provides that "the privilege
of a witness [or] person . . . shall be governed by the
principles of common law as they maybe interpreted
by the courts of the United States in light of reason
and experience. However, in civil actions and pro-
ceedings, with respect to an element of a claim or
defense as to which State law supplies the rule of
decision, the privilege of a witness [or] person . . .
shall be determined in accordance with State law."
Although a juvenile is protected by many safe-
guards found in the criminal justice system, a
juvenile proceedings is generally regarded as civil,
not criminal in nature. United States v. Parker, 956
F.2d 169, 171 (8th Cir. 1992); United States v. Furey,
600 F.2d 338, 343 (2nd Cir. 1974). On this basis alone,
and taking into account issues of comity as well as

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the much greater experience of state courts in
juvenile matters, the court believes that state law
appropriately provides the rule of decision. See
generally, Memorial Hospital for McHenry Co, v.
Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981) ("A strong
policy of comity between state and federal sovereign-
ties impels federal courts to recognize state privil-
eges"); United States v. Juvenile, 599 F. Supp. 1126,
1130 (D.Or. 1984) (federal court system is ill equipped
to meet the needs of juvenile offenders and deference
to the state courts is appropriate).
Parenthetically, in the context of criminal proceed-
ings, the Seventh Circuit has said that a court must
decide, "in the light of reason and experience," wheth-
er any privilege applies to a particular case. United
States v. Wilson, 960 F.2d 48, 50 (7th Cir. 1992). If
this were regarded as a criminal case, to determine
whether to recognize the privilege the court must
balance, on a case by case basis, the purpose the
privilege is meant to serve against the federal inter-
ests served by allowing the government to use the
evidence. Id. United States v. Diamond, 964 F.2d
1325, 1328 (2d Cir. 1992) (finding a psychotherapist-
patient privilege may exist on a case by case basis,
collecting cases and noting that forty-nine states
have adopted some form of a psychotherapist-patient
privilege); United. States v. Burtrum, [17 F.3d 1299,
1302] , 1994 WL 56508, *3 (10th Cir. 1994) (denying
privilege on policy grounds).
Applying state law as the rule of decision as it
exists in Wisconsin, Sec. 905.04(2), Wis. Stats., pro-
vides that "[a] patient has a privilege to refuse to
disclose and to prevent any other person from dis-
closing confidential communications made or informa-
tion obtained or disseminated for purposes of  . . . . 

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diagnosis or treatment of the patient's physical,
mental or emotional condition, among the patient . . . . 
the patient's psychologist, the patient's social work-
er, the patient's marriage and family therapist, the
patient's professional counselor or persons, including
members of the patient's family, who are participating
in the . . . diagnosis or treatment under the direction
of the physician, registered nurse . . . psychologist,
social worker, marriage and family therapist or
professional counselor."
Section 905.04(I)(b), [Wis.] Stats., provides: A
communication . . . is "confidential" if not intended to
be disclosed to third persons other than those present
to further the interest of the patient . . . or persons
who are participating in the diagnosis and treatment
under the direction of the physician, registered nurse
. . . psychologist, social worker, marriage and family
therapist or professional counselor, including the
members of the patient's family."
D.F. was working on several goals in therapy,
including to develop trust and avoid telling lies. To
this end, D.F. was encouraged to make full dis-
closures to the treatment staff of the matters with
which she had difficulties. Although D.F. had been
cautioned that certain information regarding abuse
would be reported, this does not equate to a voluntary
intent, or even acquiescence, that it be reported. The
government has argued that the disclosures were
made not in response to interrogation by staff, but
rather as part of therapy. Accepting this as true, it is
clear that D.F.'s intent was similarly therapeutic, not
to have the information conveyed to the police, but to
demonstrate to the staff that she was developing a
trust in them by making certain disclosures. In fact,
K[-] testified that D.F.'s statements were con-

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fidential client statements and advised the family to
"keep discussions of the death confined to the session,
so that they could be protected by confidentiality."
See also, Exhibit F-1 ("upset about peer's lack of
keeping her confidentiality from group last week
. . . ").
The court is aware of an unreported Wisconsin
Court of Appeals case which is factually very similar
to the present case. State v. Todd F. M., [178 Wis. 2nd
877], 506 N.W.2d 427, 1993 WL 322491 (Wis. Ct. App.
August 26, 1993). Although it is of no precedental
value, the reasoning is sound and provides insight
into the workings of the relevant Wisconsin Statutes.
In Todd, a juvenile was being treated for sexual
contacts he had with other juveniles. During treat-
ment he was encouraged to accept responsibility for
his behavior and to be forthright about his conduct.
During the course of treatment he disclosed other
sexual contacts with children and wrote a number of
letters admitting these contacts. The government
sought to introduce these admissions against Todd,
but the trial court suppressed them as privileged
communications. The Court of Appeals upheld the
trial court's decision in an unpublished decision.
The court in Todd notes that Section 905.04(4)(e),
Wis. Stats. provides for an exception to what would
otherwise be privileged communications where "the
examination of an abused or injured child creates a
reasonable ground for an opinion . . . that the con-
dition was other than accidentally caused or inflicted
by another." This exception conforms to the manda-
tory reporting requirement under Sec. 48.981(2), Wis.
Stats. which requires the reporting of victims of
abuse. As the court in Todd notes, "it is clear that
the abused or injured child exception applies

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to victims of abuse and not to perpetrators. The
statute's intent is to facilitate reporting of child
sexual abuse for the benefit of sexual abuse victims by
identifying incidents of abuse and initiating inter-
vention." State v. Todd F. M., [178 Wis.2d 877, 506
N.W. 2d 427], 1993 WL 322491 **3. This court concurs
with the reasoning in Todd, that the perpetrator's
communications are not excepted from the privilege
under Section 905.04(4)(3), Wis. Stats. The court
therefore concludes. that D.F.'s communications are
privileged.
The treatment staff acknowledges that they were
under the erroneous impression that the Wisconsin
Statutes required them to report abuse when the
"child seen in the course of professional duties," is
the perpetrator of the abuse. Sec. 48.981(2), Wis.
Stats. Even if the statute, Sec. 48.981 Wis. Stats.,
permitted the treatment staff to report abuse to a
child, the report is for the benefit of the victim of
abuse.  Neither Sec. 905.04(4)(e), Wis. Stats. nor
Sec. 49.981 Wis. Stats. contain any express pro-
vision for waiving the perpetrator's privilege of
communications.
Moreover, without limitations on the use of the
information, a requirement that the psychotherapy
treatment staff provide law enforcement with a
confession made by a juvenile perpetrator of abuse
would, in effect, conscript all treatment workers into
service as skilled agents of law enforcement, capable
of obtaining confessions  through psychological
means. This is, in effect, what occurred in this case.
In fact, B[-] K[-] testified that she carefully
documented D.F.'s disclosures, at least in part,
because she thought she might have to testify as to
these statements in court. Likewise, when D[-]

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V[-] placed the telephone call to report D.F.'s
confession, there was no advance discussion as to
whether this would be proper or in D.F.'s best
interest. Since the abuse victims were deceased, the
ostensible reason in reporting appears to have been to
serve law enforcement purposes.  In fact, M[-]
testified that some members of the treatment staff
believed that D.F. would not be capable of real healing
until she went through the catharsis of court
proceedings.
It thus appears that the treatment staff had a dual
purpose; the purifying act of D.F. first admitting to
her ill deeds and then accepting and suffering the
consequence of her acts. In this sense, the treatment
staff acted as if they were agents of law enforcement.
See generally, United  States v. McAllister, [18 F.3d
1412, 1417-18], 1994 WL 85655, *5 (7th Cir. 1994) (For
fourth amendment purposes, whether a person was
acting as a government agent depends initially upon
"whether the government knew of and acquiesced in
the intrusive conduct," and secondly "whether the
private party's purpose . . . was to assist law
enforcement efforts or to further his own ends.");
quoting, United States v. Feffer, 831 F.2d 734, 739
(7th Cir. 1987); see also, Estelle v. Smith, 451 U.S. 454
(1981) (statements made by a defendant during a state
ordered psychiatric examination not admissible with-
out Miranda warnings).
The court notes that D.F. was given very mixed,
and seemingly conflicting, signals about her dis-
closures. She was told that abuse she disclosed had to
be reported, but she was also told that her com-
munications were confidential. She was encouraged
to be forthright in her disclosures and when she
disclosed non-lethal violent acts toward some of her

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cousins, she was told no charges would be brought if
she continued her therapy. There is no question that
the treatment staff believed, from a therapeutic
standpoint, that it was necessary for D.F. to admit
her wrongdoings. To this end, the staff facilitated and
encouraged her to make disclosures, such as the list,
Exhibit C-3, of all the people she had hurt or the
inquiry, cm January 8, 1993, as to whether D.F. had
ever murdered anyone. Exhibit B-3. In this sense,
D.F. was subjected to interrogation. Rhode Island v.
Innis, 446 U.S. 291, 301 (1980) (interrogation includes
"any words or actions . . . reasonably likely to elicit
an incriminating response from the suspect").
Undoubtedly to D.F.'s therapeutic benefit, this was
an effective setting in which to wear down her resis-
tance and gain her confidence. While most con-
fessions may be therapeutic, an individual still re-
tains a constitutional right to be free from self
incrimination. D.T.'s progress notes are telling:
  
12/22/92-[D.F.] stated "I just have a real
problem trusting people enough to tell them what
my problems are." Writer reassured client that
maybe she should try [to] trust staff. (Def. Exh. 8)
  
1/9/93-Still talked about not trusting or
getting close to people because when you trust
people you end up getting hurt. (Def. Exh. 2)
  
4/17/93-[D.F.] asked writer, "you know I'm
going to court, right?" I stated yes. She then
asked what am-T going to say when they ask[] me
why I did it? I told her just to tell the truth and
explain exactly how you felt and exactly how you
did it."

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It is clear that over time, D.F. grew to trust
members of the treatment staff and confide in them.
There is no question that D.F.'s trust was essential
from a therapeutic standpoint and D.F. revealed
many, if not all, of her darkest secrets in therapy.
Some of the secrets revealed pertain to the current
charges.
In describing the psychological factors contribut-
ing to a successful interrogation, the Court in
Miranda specifically noted that the objective of the
police is to "persuade, trick, or cajole [the subject] out
of exercising his constitutional rights." Miranda,
384 U.S. at 455. The method was described:

"To be alone with the subject is essential to
prevent distraction and to deprive him of any
outside support. The aura of confidence in his
guilt undermines his will to resist. He merely
confirms the preconceived story the police seek
to have him describe. Patience and persistence,
at times relentless questioning, are employed. To
obtain a confession, the interrogator must
patiently maneuver himself or his quarry into
a position from which the desired objective may
be attained.' When normal procedures fail to
produce the needed result, the police may resort
to deceptive stratagems such as giving false legal
advice. It is important to keep the subject off
balance, for example, by trading on his inse-
curity about himself or his surroundings . . . . 
[T]he interrogation should take place in the
investigator's office or at least in a room of his
own choice. The subject should be deprived of
every psychological advantage. In his own home
he may be confident, indignant, or recalcitrant.

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88a

He is more keenly aware of his rights and more
reluctant to tell of his indiscretions or criminal
behavior within the walls of his home. Moreover,
his family and other friends are nearby, their
presence lending" moral support."

Miranda, 384 U.S. at-449-50 (emphasis added)

The facial similarities between inpatient psycho-
therapy and the interrogation tactics discussed above
give this court pause. In this sense, this ease be-
comes most disturbing when considering D.F.'s
statements on April 23, 1993 and again on May 10,
1993, in which K[-] advised the family to "keep
discussions of the death confined to the session, so
that they could be protected by confidentiality."
Regardless of whether K[-] intended to be decep-
tive, the government now seeks to introduce these
statements' against D.F. Notably, these statements
were made following D.F.'s written invocation of her
Miranda rights.
The court does not mean to ascribe any ill faith to
the treatment staff. Rather, the court means to
highlight the fine line, at least in this case, between
D.F.'s Fifth Amendment privilege against self in-
crimination and her privilege of communications be-
tween psychotherapist and patient.
As stated at the outset of this discussion, this case
does not present the conventional context of interro-
gation. Specifically, Miranda and its exclusionary
sanctions are to be applied when an accused is in
custody or otherwise deprived of her freedom of action
in any significant way. Miranda, 384 U.S. at 444.
The courts which have considered situations amount-
ing to custody low at such factors as the duration of
the confinement, the familiarity of the setting and the

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control exercised by the accused. See United States
v. Hocking, 860 F.2d 772 (interview conducted at
home); United States v. Willoughby, 860 F.2d 15,23-24
(2d Cir. 1988) (inmate not in "custody" when the
inmate initiated the meeting, initiated conversations
about crime, could terminate interview and no evi-
dence of compulsion beyond the fact of confinement).
Schiro v. Clark, 963 F.2d 962, 974 (7th Cir. 1992)
(halfway house setting not custodial); Minnesota v.
Murphy, 465 U.S. 420 (1984) (routine meeting be-
tween defendant and his parole officer not considered
to be custodial interrogation),
D.F. was only fourteen at the time of her ad-
missions, and had spent several months in the treat-
ment setting where counselors worked with her to
establish trust and feel comfortable revealing her
inner most secrets. Her surroundings were undoubt-
edly familiar and D.F. had the ability to leave for
limited periods of time. Nevertheless, she had signif-
icant restrictions on her freedom D.F. knew that she
would not be allowed to live at home unless she
completed treatment with some degree of success and
would be, in effect, penalized for keeping to herself
and not opening up. The one time D.F. tried to sign
herself out she was persuaded not to prior to the lapse
of the 48 hour waiting period. It was essentially
beyond D.F.'s ability to terminate her treatment and,
to a fourteen year old, the restraints on D.F.'s
freedom undoubtedly seemed significant.
Nevertheless, "juveniles, unlike adults, are always
in some form of custody." Schall v. Martin, 467 U.S.
253, 265 (1984). Typically, a juvenile would be in the
"custody" of her parents, bound to submit to the
authority of a parent. If the court takes a broad view
of D.F.'s confinement, she was subjected to a loss of

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liberties and terms  of confinement for an extended
period of time, and made to submit, in a sense, to the
authority of the treatment itself.  This court is
unwilling to say, however, that she was in custody in
the traditional context of Miranda simply by virtue
of her placement in an adolescent wing. In fact, each
statement was elicited in a familiar setting, com-
fortable enough that D.F. felt willing to "open up" to
the staff.
The pervasive aspect of this case is the psych-
ological treatment; treatment structured to elicit
confession-like responses. For that reason, the court
believes that this case is most properly decided as a
question of psychotherapist-patient privilege, al-
though the privilege takes on added importance be-
cause of the Fifth Amendment underpinnings. This
court declines to recommend that the statements be
suppressed on the basis of Miranda v. Arizona, but
finds that permitting the introduction of D.F.'s
statements in evidence against her would violate the
psychotherapist-patient privilege. It is therefore
recommended that the statements made by D.F. to the
treatment staff be suppressed.
      
Motion for a Jury Trial

D.F. has requested a jury trial on the two delin-
quency charges.  The Sixth Amendment provides
criminal defendants the right to trial by an impartial
jury. However, in McKeiver v. Pennsylvania, 403
U.S. 528 (1971) a plurality of the Court found that a
juvenile did not have a Sixth Amendment right to a
jury in a juvenile delinquency adjudication. D.F. now
asks this court to find that she is entitled to a trial by
jury.

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91a

D.F. observes that juveniles are increasingly the
perpetrators of serious crimes. Society has re-
sponded with juvenile detention facilities which
have become more prison-like in character and the
possibility of terms of incarceration extending past
the age of majority. The government points out that
much of the original reasoning of the Court in
McKeiver v. Pennsylvania, as to why there was not
a right to a jury trial in a juvenile matter, remains
sound. Specifically, the government points to factors
such as the informal, protective character of a
juvenile proceeding and the limit on confinement in
this case to the age of twenty-one. See McKeiver v.
Pennsylvania, 403 U.S. at 545, 550-53. The govern-
ment also observed the many types of cases in which
there is no right to a jury trial, most notably perhaps
are military trials.
This case will likely pose some difficult factual
issues, particularly in the face of what appears to be a
factual dispute concerning the cause of the two
infants' death. The overarching concern is, of course,
that the juvenile receive a fair adjudication in the
juvenile's best interest. These proceedings will be
delicate and the court is not convinced that the larger
venue of a jury trial will further the juvenile's best
interests or make for a more fair adjudication of the
issues. The decision in McKeiver v. Pennsylvania,
403 U.S. at 528, may only have been a plurality
decision and may be subject to reconsideration, but it
is still a binding pronouncement by the Supreme
Court on the issue. The court therefore concludes
that D.F. does not have a constitutional fight to a
jury trial. It is Judge Stadtmueller's province to
decide whether he might otherwise be amenable to the

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use of a jury, and D.F.'s motion for a jury trial is     
therefore denied, without prejudice.

Motion for Notice of Uncharged Misconduct        

D.F. seeks reasonable notice of any uncharged
misconduct which the government intends to
introduce at her delinquency hearing. The govern-
ment agrees to provide reasonable notice and the
motion is therefore denied as moot.             
IT IS THEREFORE ORDERED that:
1. D.F.'s motion for a jury trial is denied, without
prejudice, D.F. may renew her motion before Judge
Stadtmueller.
2. D.F.'s motion for notice of uncharged miscon-
duct evidence is denied as moot.
IT IS THEREFORE RECOMMENDED that
D.F.'s motion to suppress evidence be granted, and
her statements made in the course of psychotherapy
be suppressed.
Any objection to this order and recommendation
must be filed with the Clerk of Court in duplicate      
prior to the final prehearing conference, which is
scheduled to be held April 20, 1994. Failure to file an
objection within the specified time waives the right to
appeal the district court's order on all factual and
legal issues.
Dated at Milwaukee, Wisconsin, this 13th day of   
April, 1994.                       
        
/s/ AARON E. GOODSTEIN
AARON E. GOODSTEIN
U.S. MAGISTRATE JUDGE        

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APPENDIX D
        
UNITED STATES COURT OF APPEALS   
SEVENTH CIRCUIT

No. 94-2900              
No. 93 CR 202  
J. P. Stadtmueller, Judge

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

v.

D.F., DEFENDANT-APPELLEE                  
                                      
APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF WISCONSIN            

[ Filed :Nov. 17, 1995]              
                         
ORDER

Before: Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. ROBERT L. MILLER, District Judge*

On consideration of the petition for rehearing and
suggestion for rehearing en banc filed on October 10,
1995 by the plaintiff-appellant, no judge in active  
        
___________________(footnotes)        

* The Honorable Robert L. Miller, District Judge for the
Northern District of Indiana, sitting by designation.

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service has requested a vote thereon, and all the       
judges on the original panel, have voted to deny the
petition. Accordingly,

IT IS ORDERED that the petition for rehearing
and suggestion for rehearing en banc be, and the same
is here by, DENIED

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