Court approved voluntariness jury instruction applying to several confessions, two of which were offered solely to impeach
How later courts described this case
- Court approved voluntariness jury instruction applying to several confessions, two of which were offered solely to impeach
- “poisonous tree” doctrine did not bar admission of knife where confession was found to be voluntary
Written by the judges who cited it.
The opinion
McGRAW, Justice,
dissenting:
I dissent for the reason that article 3, section 5 of the Constitution of the State of West Virginia provides: “No person shall ... be compelled to be a witness against himself ...” and the Fifth Amendment to the Constitution of the United States provides: “No person shall ... be compelled in any criminal case to be a witness against himself ...” The test for the voluntariness of a confession under the language of these constitutional provisions ought to be whether or not the defendant agrees at trial to the use of the words from his own mouth against him. By approaching these constitutional provisions with fidelity, we could lessen the number of appeals flowing from the abuse of this plain language.
It is undisputed that the appellant requested a lawyer at his arraignment on January 20, 1979, and that a “confession” was elicited prior to the fulfillment of that request. Under article 3, section 5 of the West Virginia Constitution, this incriminating statement should not have been used at trial for any purpose, irrespective of the trial court’s determination that the statement was “voluntary.” See State v. Bradley, 163 W.Va. 148 , 255 S.E.2d 356 (1979); State v. McNeal, 162 W.Va. 550 , 251 S.E.2d 484 (1978). See also, Harris v. New York, 401 U.S. 222 , 91 S.Ct. 643 , 28 L.Ed.2d 1 (1971) (Brennan, J., dissenting); People v. Disbrow, 16 Cal.3d 101 , 127 Cal.Rptr. 360 , 545 P.2d 272 (1976); State v. Santiago, 53 Haw. 254 , 492 P.2d 657 (1972).
I am authorized to state that Justice Harshbarger joins me in this dissenting opinion.