The Future of Confession Law: Toward Rules for the Voluntariness Test

Confession law is in a state of collapse. Fifty years ago, three different doctrines imposed constitutional limits on the admissibility of confessions in criminal cases: Miranda doctrine under the Fifth Amendment, Massiah doctrine under the Sixth Amendment, and voluntariness doctrine under the Due Process Clauses of the Fifth and Fourteenth Amendments. But in recent years, the Supreme Court has gutted Miranda and Massiah, effectively leaving suspects with only voluntariness doctrine to protect them during police interrogations. The voluntariness test is a notoriously vague case-by-case standard. In this Article, I argue that if voluntariness is going to be the framework for confession law going forward, courts will need to disentangle the complex of values that is discussed under that heading and then use their clarified understanding as the basis for a judicially administrable rubric for regulating interrogation practices.As a matter of history and current practice, I argue that there are two different strands within voluntariness doctrine-one deontological strand that focuses on the offensiveness of the police methods used and one consequentialist strand that is concerned with the problem of false confessions. Courts could profit from disentangling those strands and creating different tests for each. Once the two strands are separated, voluntariness doctrine can move toward rules that are tailored to the distinctive values animating each strand. Toward that end, I propose different tests for determining the voluntariness of confessions going forward depending on which of the two strands is implicated in a given case.INTRODUCTIONConstitutional regulation of police interrogation is in a state of collapse. Half a century ago, three different doctrines imposed limits on the admissibility of confessions in criminal cases: Miranda doctrine under the Fifth Amendment,1 Massiah doctrine under the Sixth Amendment,2 and voluntariness doctrine under the Due Process Clauses of the Fifth and Fourteenth Amendments. Of the three, voluntariness was always the most amorphous. Justices and commentators alike described the voluntariness test as a "forgiving and vague,"3 case-by-case standard with no definite shape4 that, in practice, almost always resulted in the admission of suspects' confessions.5 In contrast, Miranda and Massiah supplied more definite rules, and courts relied on them to do the heavy lifting in regulating police interrogation practices.In the last decade, however, the Roberts Court has gutted criminal suspects' Miranda and Massiah protections.6 As a result, where there used to be three different constitutional doctrines to protect suspects during a police interrogation, there is now effectively one: voluntariness. And the voluntariness doctrine remains as hazy and unfocused as ever, bouncing among various concerns about confessions and almost always arriving at the conclusion that what the police did was, all things considered, acceptable. If voluntariness is going to be the framework for confession law, courts will need to disentangle the complex of values that is discussed under that heading and then use their clarified understanding as the basis of a judicially administrable rubric for regulating interrogation practices. In this Article, I begin that process and offer suggestions for ways to put rule-like contours on the morass that is voluntariness doctrine.Some may quarrel with the premise of this Article, arguing that courts have no incentive to clarify and hone voluntariness doctrine.7 After all, courts have gutted Miranda and Massiah to ease restrictions on police interrogation practices. Judges know that the police need confessions to obtain criminal convictions,8 and they don't want to appear soft on crime by freeing confessed criminals.9 The amorphous nature of the current voluntariness standard permits the admission of most confessions while still being flexible enough to allow courts to step in when particularly egregious problems arise. …