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NCJ Number: 65066 Find in a Library
Title: VOLUNTARINESS, FREE WILL, AND THE LAW OF CONFESSIONS
Journal: VIRGINIA LAW REVIEW  Volume:65  Issue:5  Dated:(JUNE 1979)  Pages:859-946
Author(s): J D GRANO
Corporate Author: Virginia Law Review Assoc
University of Virginia
School of Law
United States of America
Date Published: 1979
Page Count: 87
Sponsoring Agency: Virginia Law Review Assoc
Charlottesville, VA 22901
Format: Article
Language: English
Country: United States of America
Annotation: THE LAW OF CONFESSIONS SHOULD REVERT TO A NEW DUE PROCESS VOLUNTARINESS TEST WHICH PRESERVES A CERTAIN DEGREE OF MENTAL FREEDOM AND PROTECTS AGAINST FUNDAMENTALLY UNFAIR INFLUENCE.
Abstract: CERTAIN CONSTITUTIONAL CONSIDERATIONS ARE RELEVANT IN THE CONFESSION CONTEXT. THE MENTAL FREEDOM COMPONENT OF THE DUE PROCESS VOLUNTARINESS DOCTRINE SHOULD RENDER INADMISSIBLE ANY CONFESSION PRODUCED BY INTERROGATION PRESSURES THAT A PERSON OF RESONABLE FIRMNESS, WITH SOME OF THE DEFENDANT'S PHYSICAL AND MENTAL CHARACTERISTICS, COULD NOT RESIST. BEGINNING WITH ITS FIRST CONFESSION CASE, HOPT. V. UTAH (1884), THE SUPREME COURT HAS PREMISED VOLUNTARINESS DOCTRINE ON A POSTULATE OF FREE WILL. SUBSEQUENT COURT DECISIONS, PREMISED ON THE CONCEPTS OF 'OVERBORNE' WILLS AND PROPELLED OR INDUCED WILLS, HAVE NOT PROVEN HELPFUL IN SOLVING CONCRETE CASES BECAUSE OF DEFINITIONAL PROBLEMS. THE CONCEPTS HAVE CREATED AMBIVALENCE REFLECTED IN THE COURT'S ADHERENCE TO TWO OPPOSING SETS OF VALUES UNDERLYING THE LAW OF CONFESSIONS AND POLICE INTERROGATION. AN ALTERNATIVE TO VOLUNTARINESS TERMINOLOGY IS THEREFORE PROPOSED WITH A TEST IS SIMILAR TO THE MODEL PENAL CODE'S DURESS DEFENSE. THE MENTAL FREEDOM COMPONENT OF THIS DUE PROCESS VOLUNTARINESS TEST SHOULD CONSIDER THE UNIQUE CHARACTERISTICS OF THE DEFENDANT IN DETERMINING HIS ABILITY TO RESIST OVERBEARING INTERROGATION. THE VOLUNTARINESS DOCTRINE SEEKS TO ACCOMMODATE THE DESIRE FOR SUCCESSFUL POLICE INTERROGATION ON THE ONE HAND AND FUNDAMENTAL MORAL PRECEPTS ON THE OTHER. AS SUCH, IT IS REALLY THREE DOCTRINES. THE FIRST PROHIBITS UNDUE IMPAIRMENT OF MENTAL FREEDOM. THE SECOND PROHIBITS THE POLICE FROM TAKING UNDUE ADVANTAGE OF THE ACCUSED. THE THIRD PROHIBITS THE POLICE FROM CREATING AN UNNECESSARY RISK OF A FALSE CONFESSION. THE DOCTRINE ENCOMPASSES THE ONLY CONSTITUTIONAL RESTRAINTS THAT ARE WARRANTED IN THE CONTEXT OF INTERROGATION. WHILE THE FIFTH AMENDMENT PROTECTION AGAINST COMPULSORY SELF-INCRIMINATION MAY APPLY, IT MERELY DUPLICATES THE PROTECTION PROVIDED BY THE MENTAL FREEDOM COMPONENT. THE SIXTH AMENDEMENT RIGHT TO COUNSEL SHOULD NOT APPLY TO POLICE INTERROGATION THAT OCCURS BEFORE THE START OF FORMAL JUDICIAL PROCEEDINGS. EXTENSIVE CASE LAW IS CITED, AND FOOTNOTES ARE PROVIDED. (LWM)
Index Term(s): Coercive persuasion of offenders; Confessions; Constitutional Rights/Civil Liberties; Defendants; Judicial decisions; Right against self incrimination; Right to counsel; Right to Due Process; Suspect interrogation; US Supreme Court
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=65066

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