Before the Miranda case, courts evaluated confessions under the totality of the circumstances to determine if they were so coerced by official pressure as to be considered “involuntary” in violation of the Due Process Clause of the Fourteenth Amendment. Miranda warnings were intended to prevent pressure tactics. Confessions are seldom found to be involuntary when the police have obeyed Miranda. However, Miranda did not supplant the law prohibiting involuntary confessions.

Totality of the circumstances

The U.S. Constitution forbids not only physical torture, but use of more subtle psychological devices to elicit a confession against a defendant’s will. The question is whether the behavior of law enforcement officials was such as to overbear the defendant’s will to resist and bring about confessions that were not freely self-determined. To determine whether a confession is voluntary, the court must assess the totality of all the surrounding circumstances—both the characteristics of the defendant and the details of the interrogation. Factors to be considered include:

• The defendant’s lack of education.
• The defendant’s age.
• The defendant’s mental health and emotional instability.
• The defendant’s low intelligence and mental deficiency.
• The lack of counsel or advice regarding constitutional rights.
• The absence of family.
• The length of detention.
• The repeated and prolonged nature of the questioning.
• The use of physical punishment, such as the deprivation of food or sleep.
• Police threats, promises, or other trickery.
• The defendant’s familiarity with the judicial system.

Threats or appeals to friendship

False threats to the suspect’s family, such as the suspect would lose her children or her government benefits if she did not confess, have invalidated a confession. Similarly when the interrogating officer and the arrestee were friends, an appeal to confess to prevent the officer from losing his job or suffering other adverse consequences has invalided a confession.

Weakened defendants

For a confession to be ruled involuntary, there must be some action by state officials causally related to the confession. An unsolicited confession, even if from a mentally ill defendant, will typically be considered voluntary. A defendant’s mental condition is not in itself sufficient to make a confession involuntary. However, the analysis of involuntariness must consider the effect of the interrogation techniques as applied to the unique characteristics of a particular suspect. Thus, some courts have decided that confessions were involuntary when the police used relatively mild tactics on defendants weakened by injury, retardation, sedation, alcohol or drugs.

Police misrepresentations

The following do not invalidate a confession:

• Threats to inform the prosecution and courts of the suspect’s refusal to cooperate.
• Promises to inform them of cooperation.
• Exaggerations and outright lies about the evidence against a suspect defendant.

Fabricated evidence

While police misrepresentations do not doom a confession to inadmissibility, several state courts have held that use of police-fabricated evidence does.

Standard of proof

Federal law imposes on the prosecution the burden of proving that a confession was voluntary by a preponderance of the evidence. Some states set the standard at beyond a reasonable doubt.

The common law rule of unreliability

Under constitutional law, a court may not consider the truthfulness of a confession in deciding whether it is admissible. But under common law, a confession is inadmissible if rendered under circumstances making it likely to have been unreliable. Unlike the constitutional rules on coerced confessions, the common law rule applies to statements obtained by private as well as official action. The common law may exclude statements made by mentally ill or intoxicated defendants whether or not the police played a role in eliciting the confession. Especially in cases of mentally retarded and juvenile defendants, courts must consider reliability and credibility of confession to guard against danger of false confessions. Some state statutes preclude use of involuntary statements regardless of who elicited the statement.