# Lego v. Twomey/Dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Brennan
United States Supreme Court
404 U.S. 477
Don Richard LEGO, Petitioner, v. John TWOMEY, Warden.
Argued: Nov. 11, 1971. --- Decided: Jan 12, 1972
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
When the prosecution, state or federal, seeks to put in evidence an allegedly involuntary confession, its admissibility is determined by the command of the Fifth Amendment that '(n)o person . . . shall be compelled in any criminal case to be a witness against himself.' Davis v. North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761 (1966); Malloy v. Hogan, 378 U.S. 1, 7-8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964); Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). This right against compulsory self-incrimination is the 'essential mainstay' of our system of criminal prosecution, Malloy v. Hogan, supra, at 7, 84 S.Ct., at 1493 'a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth,' Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 739 (1961). What is thereby protected from governmental invasion is, quite simply, 'the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will.' Malloy v. Hogan, supra, at 8, 84 S.Ct., at 1493. Hence, a confession is involuntary and inadmissible unless it is 'the product of a rational intellect and a free will.' Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280 (1960); see Reck v. Pate, 367 U.S. 433, 440, 81 S.Ct. 1541, 1546, 6 L.Ed.2d 948 (1961).
Ideally, of course, a defendant's compelled utterance would never be admitted into evidence against him. As we said in Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774, 1780, (1964), it is 'axiomatic' that a criminal conviction cannot stand if it 'is founded, in whole or in part, upon an involuntary confession . . . even though there is ample evidence aside from the confession to support the conviction.' Yet I doubt that informed observers of the criminal process would deny that at least some compelled utterances slip through, even assuming scrupulous adherence to constitutional standards and the most rigorous procedural protections. Jackson was an attempt to move that reality somewhat closer to the ideal. We there rejected the New York rule because it 'did not afford a reliable determination of the voluntariness of the confession offered in evidence at the trial' and consequently 'did not adequately protect (a defendant's) right to be free of a conviction based upon a coerced confession.' Id., at 377, 84 S.Ct., at 1781. As the Court today points out, '(t)he procedure we established in Jackson was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances.' Ante, at 485.
There is no need to dwell upon the importance our American concept of justice attaches to preserving the integrity of the constitutional privilege. Both the rule that automatically reverses a conviction when an involuntary confession was admitted at trial and the procedure established in Jackson for determining whether a confession was voluntary are means to further the end that no utterance of a defendant not the product of his own free choice will be used against him. The Court today reaffirms what we held in Jackson: '(W)hen a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered.' Ante, at 489. But the Court goes on to hold that it follows from Jackson that 'the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary.' Ibid. I disagree. In my view, the rationale of Jackson requires the conclusion that the preponderance standard does not provide sufficient protection against the danger that involuntary confessions will be employed in criminal trials.
A Jackson hearing normally presents the factfinder with conflicting testimony from the defendant and law enforcement officers about what occurred during the officers' interrogation of the defendant. The factfinder's resolution of this conflict is often, as a practical matter, the final resolution of the voluntariness issue. Jackson, supra, at 390-391, 84 S.Ct., at 1788. This case is a typical example. Petitioner testified that he confessed because the police had beaten him; the police testified that there was no beating. As the Court notes, '(t)he trial judge resolved this credibility problem in favor of the police and ruled the confession admissible. Ante, at 480. When the question before the factfinder is whether to believe one or the other of two self-serving accounts of what has happened, it is apparent that the standard of persuasion will in many instances be of controlling significance. See Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 1341 1342, 2 L.Ed.2d, 1460 (1958). Although the Court suggests 'that federal rights have (not) suffered from determining admissibility by a preponderance of the evidence' and that there has been no showing 'that admissibility rulings have been unreliable . . . because not based on some higher standard,' ante, at 488, I do not think it can be denied, given the factual nature of the ordinary voluntariness determination, that permitting a lower standard of proof will necessarily result in the admission of more involuntary confessions than would be admitted were the prosecution required to meet a higher standard. The converse, of course, is also true. Requiring the higher standard means that some voluntary confessions will be excluded as involuntary even though they would have been found voluntary under the lower standard.
The standard of proof required for a criminal conviction presents a similar situation, yet we have held that guilt must be established by proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361-364, 90 S.Ct. 1068, 1070-1072 (1970); see id., at 370-372, 90 S.Ct., at 1075-1076 (Harlan, J., concurring.) Permitting proof by a preponderance of the evidence would necessarily result in the conviction of more defendants who are in fact innocent. Conversely, imposing the burden of proof beyond a reasonable doubt means that more defendants who are in fact guilty are found innocent. It seems to me that the same considerations that demand the reasonable-doubt standard when guilt or innocence is at stake also demand that standard when the question is the admissibility of an allegedly involuntary confession.
We permit proof by a preponderance of the evidence in civil litigation because 'we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor.' Id., at 371, 90 S.Ct., at 1076 (Harlan, J., concurring). We do not take that view in criminal cases. We said in Winship that the reasonable-doubt standard 'is a prime instrument for reducing the risk of conviction resting on factual error. The standard provides concrete substance for the presumption of innocence . . ..' Id., at 363, 90 S.Ct., at 1072. As Mr. Justice Harlan put it in his concurring opinion, the requirement of proof beyond a reasonable doubt is 'bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.' Id., at 372, 90 S.Ct., at 1076.
If we permit the prosecution to prove by a preponderance of the evidence that a confession was voluntary, then, to paraphrase Mr. Justice Harlan, we must be prepared to justify the view that it is no more serious in general to admit involuntary confessions than it is to exclude voluntary confessions. I am not prepared to justify that view. Compelled self-incrimination is so alien to the American sense of justice that I see no way that such a view could ever be justified. If we are to provide 'concrete substance' for the command of the Fifth Amendment that no person shall be compelled to condemn himself, we must insist, as we do at the trial of guilt or innocence, that the prosecution prove that the defendant's confession was voluntary beyond a reasonable doubt. In my judgment, to paraphrase Mr. Justice Harlan again, the command of the Fifth Amendment reflects the determination of our society that it is worse to permit involuntary self-condemnation than it is to deprive a jury of probative evidence. Just as we do not convict when there is a reasonable doubt of guilt, we should not permit the prosecution to introduce into evidence a defendant's confession when there is a reasonable doubt that it was the product of his free and rational choice.
I add only that the absolute bar against the admission of a defendant's compelled utterance at his criminal trial is fundamentally an expression of the American commitment to the moral worth of the individual. What we said in Winship bears repeating here. '(U)se of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.' Id., 397 U.S., at 364, 90 S.Ct., at 1072. I believe that it is just as critical to our system of criminal justice that when a person's words are used against him, no reasonable doubt remains that he spoke of his own free will.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse