Respondents Brief — Crane v. Kentucky

No. 85-5238

+

IN THI

OF THE UMTED STATES

r Term

SUPREME COURT

!

MAJOR CRANE Destin

tersas

COMMONWEALTH OF KENTUCKY Respondent

Wr j

i ck

BRIEF FOR RESPONDENT

"BEST AVAILABLE COPY AVAILABLE

In a criminal case, does a state trial court deny a de-

fendant’s Sixth and Fourteenth Amendment rights when,

after the trial court determines that the confession was

voluntarily made, and therefore constitutes admissible evi-

dence, it excludes from the jury's consideration evidence

relating to voluntariness which has little or no relationship

to any other issue’

TABLE OF CONTENTS

a

PAGE

COUNTERSTATEMENT OF QUESTION PRE-

er ee i

. [ ,{ 7a ii

TABLE OF AUTHORITIES ..................... iii

CR ED bccccccocccccccescoeenceosess 1

SEE noccoccensnessensensnenssaenan 1

CONSTITUTIONAL PROVISIONS INVOLVED _. 1

COUNTERSTATEMENT OF THE CASE ......... 2

SUMMARY OF THE ARGUMENT ............... 8

BREE ccocccccecsesesesensaesenaensnnnenes 11

ment Rights When, the Trial Court Deter-

mines That the Confession was Voluntarily Made,

and Therefore Constitutes Admissible Evidence,

on No Relationship to Any Other Issue ......... 12

A. In Light of Recent Developments in the Law

the Trial Court's Refusal to Allow Petitioner

to Introduce Irrelevant Evidence by Cross-Ex-

amination Did Not Deny Petitioner Due Proe-

ess of Law and His Right to Confront Wit-

SEEEED cccccecccet peccesesecess eeeueneene 12

nition That Different Evidence May Be Re-

quired to Decide a Question of Law Versus a

Question of Fact. The Rule Does Not Force

an Unconstitutional Choice Between the Exer-

cise of Individual Constitutional Rights ..... 30

CONCLUSION : 41

ili

TABLE OF AUTHORITIES

Cases PAGE

Brown v. Allen, 344 U.S. 443 (1953) ......... 16

Brown v. United States, 411 U. S. 223 (1973).. = 37

Burton vy. State, 107 Ala. 108, 18 So. 284 (1895) 13

Chambers v. Maroney, 399 U.S. 42 (1970).... 37

Chambers v. Mississippi, 410 U.S. 284 (1973). 20

Chapman v. California, 386 U.S. 18 (1967). . .36, 37

Coleman v. Alabama, 399 U.S. 1 (1970) ...... 37

Commonwealth v. Richardson, Ky., 674 8S. W.

EE 28

Crane v. Commonwealth, Ky., 690 S. W. 2d 753

EEE EE passim

Davis v. Alaska, 415 U.S. 308 (1974) ........ 21

Delaware v. Van Arsdall, No. 84-1279 (October

EE 37

Diehl v. Commonwealth, Ky., 673 S. W. 2d 711

een dnc ccsbseccsccccess 35

District of Columbia vy. Clawans, 300 U.S. 617

ee cnc c eps ecdccoccece 40

Duncan vy. Louisiana, 391 U.S. 145, (1968) ... 34

Fikes v. Alabama, 352 U.S. 191 (1957) ....... 32

Fletcher v. Weir, 455 U.S. 603 (1982) ........ 13

Gordon v. United States, 344 U.S. 414 (1953). 40

Haley v. Ohio, 332 U.S. 596 (1948) ......... 16

Harrington v. California, 395 U.S. 250 (1969) .37,40

Haynes v. Washington, 373 U.S. 503 (1963)... 17

Hopper v. Evans, 456 U.S. 605 (1982) ....... 37

Jackson V. Denno, 378 U.S. 368 (1964) ..... passim

Lego v. Twomey, 404 U.S. 477 (A972) ...... passim

Lisenba v. California, 314 U.S. 219 (1941) ... 16

Malinski v. New York, 324 U.S. 401 (1945) ... 17

Miller v. Fenton, No. 84-5786 (decided Dee. 3,

ET CC ecg Gdeeécceeesccccccccces passim

iv

Milton v. Wainwright, 407 U.S. 371 (1972) .. 37

Monks v. New Jersey, 398 U.S. 71 (1970) ... .22, 32

Moore v. Illinois, 434 U. 8. 220 (1977) ....... 37

Payne v. Arkansas, 356 U.S. 560 (1958) ...... 17

Rogers v. Richmond, 365 U.S. 534 (1961) ...15,17,

Rushen v. Spain, 464 U.S. 114 (1983) ....... 37

Schneble v. Florida, 405 U.S. 427 (1972) ..... 25

Stein v. New York, 346 U. 8. 156 (1953) ..... 13, 15

Stroble v. California, 343 U. S. 181 (1952) ... 17

Tabor v. Commonwealth, Ky., 613 8. W. 2d 133

ERED vecscenasdsccshesnsatadastsse ces 35

Townsend vy. Sain, 372 U. 8. 293 (1963) ...... 17

United States v. Hasting, 461 U. 8S. 499 (1983) = 37

Watkins v. Sowders, 449 U.S. 341 (1981) .... = 31

Watts v. Indiana, 338 U.S. 49 (1949) ........ 16

Constitutional Provisions

United States Constitution, Sixth Amend-

Dn 215. ees e ted acentvunedenaenene passim

United States Constitution, Fourteenth Amend-

ee re en re ie Chee passim

Statutes and Rules

Bh ee GS A GI cc cece cceccccsvcecses 22

Treatises, Texts, Articles

Comment: ‘‘Corroborating False Confessions:

An Empirical Analysis of Legal Safeguards

Against False Confessions,’’ 1984 Wis. L.

ts, SE es ves te certian nehdeenns as 13

Churchwell, ‘‘The Constitutional Right to Pre-

sent Evidence: Progeny of Chambers v.

Mississippi,’’ 19 Criminal Law Bulletin 131

SEED cacockhodude Jgdidaccesdeniaivands 20

Grano, ‘* Voluntariness, Free Will, and the Law

of Confessions,”’ 65 Virginia Law Review

SIT oc ii-osno4s0ce0cenaaarteanuer 17

PAGE

1 Louisell and Mueller, Federal Evidence

eta, EE ORES 25

Meltzer, “Involuntary Confessions: The Allo-

cation of Responsibility Between J udge and

Jury,” 21 U. Chi. L. Rev. 317 (1954) ..... 15

3 Wigmore, Evidence (3rd ed. 1940) ......... 14

SUPREME COURT OF THE UNITED STATES

October Term, 1985

No. 85-5238

MAJor CRANE, - - - - - Petitioner,

v.

COMMONWEALTH OF KENTUCKY, - Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

BRIEF FOR RESPONDENT

OPINIONS BELOW

Petitioner has correctly set forth the pertinent

opinions below.

JURISDICTION

Respondent accepts petitioner’s statement of the

jurisdictional facts,

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioner seeks relief before this Court under the

Sixth and Fourteenth Amendments to the United

States Constitution and accurately sets forth the rele-

vant provisions.

COUNTERSTATEMENT OF THE CASE

A. Procedural History

The procedural history is correctly set out in peti-

tioner’s brief.

B. Facts of the Crime

At approximately 10:40 p.m. on August 7, 1951,

Randall Todd, a clerk at Keg Liquors in Louisville,

Kentucky, was found dead. Apparently no money was

taken from the store (Transcript of Evidence, “*TE,”

Volume II, 33). A half-pint bottle of W. T. Samuels

whiskey was on the counter (TE II 11). A brown

paper sack was also discovered at the seene (TEIV 79).

C. The Suppression Hearing

A week after the murder, police received a tip that

implicated Major Crane in a gas station burglary

(Transcript of Suppression Hearing **TH”’ 6-7; Joint

Appendix, “‘JA,”’ 2-3). Crane was arrested and taken

to a police sub-station. He was immediately informed

of bis Miranda rights. Petitioner replied: ** :

[Y]eah, I know, I have been through this before”’

(JA 3). Crane’s aunt was contacted at once and told

police that she and petitioner’s mother would come to

the detention center within an hour (JA 4).

While police were typing an arrest slip petitioner

spontaneously said, “*I confess.’ The officer ignored

Crane until he began to detail cases which the officer

knew were unsolved (/d.).

Because of petitioner’s admissions, the officer de-

cided to take him to the Youth Bureau at City Head-

quarters to allow county officers to question Crane.

On the way, petitioner was asked if he knew about the

Keg Liquors robbery. Petitioner denied any knowl-

edge and the matter was dropped (JA 5).

Petitioner was processed at the Youth Bureau until

6:59 p.m. He was then taken to the detention center,

arriving at 7:08 p.m. Police again called Crane’s home

but got no answer.' Only then was Crane tiken to an

interrogation room and questioned about the liquor

store (JA 6).

Petitioner initially stated that he fired a shot during

the robbery of a specific hardware store. When police

pointed out that no one was shot in that robbery, Crane

explained :

No, I am talking about Keg Liquors. . . . That is

where I am talking about is at Keg Liquors where

that guy got killed.

(JA 7)

Police then took a tape recorded statement (Jd.). The

statement began at 7:50 p.m. and coneluded at 8:40

p.m. (JA 11).

At the hearing petitioner was permitted to fully

cross-examine the arresting officers about the length of

the detention and when and where questioning occurred

(JA 8-9). Crane elicited testimony that two officers

were in the room with him at all times. One other

‘In fact police made ten attempts to contact Crane's family

during the evening (JA 7).

4

officer was present during most of the time. Two others

were in and out of the room during the questioning.

Never were all five in the room at the same time (JA 9).

Petitioner also demonstrated that he spoke to no one

but police officers until after the confession. One offi-

cer said Crane did not ask to use the telephone (JA 11).

In his own behalf, petitioner called his social worker,

Charles Burton, as a witness. Burton said Crane had a

third or fourth grade academic achievement level in

1981 (TH 37). Burton acknowledged that Crane was

already familiar with the juvenile justice system and

had a criminal record in juvenile court at the time of

the crime. He also said Crane had been evaluated as a

sophisticated delinquent (TH 39-40).”

Crane testified police asked him repeatedly about a

number of crimes (JA 17). He said they threatened

to knock his head off if he did not sign a waiver of

rights (JA 19). He said he was kept in a windowless

room with ‘‘about six’’ policemen during the question-

ing and that he said be repeatedly asked to call his

mother but was refused permission (JA 18-19). Crane

testified that some of his confession consisted of things

police told him to say and some was simply made up

(TH 58, 61, 68).

Crane admitted he knew that he had the right to

remain silent and that police are not permitted to strike

a suspect (TH 54). He also knew that a coerced state-

ment is inadmissible (TH 64). On cross-examination

Crane could not specify any additional threats (TH

2Crane did not present any testimony about his intelligence on

avowal or in hw Kentucky Supreme Court brief.

53). He admitted police did not strike him but insisted

that one officer pushed Crane’s head (TH 54). Crane’s

motion to suppress was denied. The trial court found

that the statement was admissible and said:

The Court again points to the.fact that it is not

involved at this juncture in making a determina-

tion as to the truth of the statements, the contents

of the statements, oral or recorded, which were

given but as to the admissibility which would go

towards a protection of the defendant's righis

prior to giving statements and the Court has found

that his rights were protected. (TH 74)

The court specifically stated that (1) there was no

sweating or coercion; (2) there was no overreaching

by officers of the Louisville Police Department; (3)

there was no delay in taking the petitioner to the Youth

Detention Center; (4) in comparing the conflicting

testimony between petitioner and the police officers the

eredibility ‘‘lies entirely with the police’; and (5)

petitioner has had numerous dealings with the law, is

“street wise’’ and understood his rights (JA 21-22).

D. The Trial

Petitioner in his opening statement claimed that

the circumstances surrounding the confession, speciti-

eally, the length of the questioning and the fact that

petitioner was alone with five officers, showed that the

statement was not credible (JA 23-24). Counsel also

detailed at length the inconsistences in the statement

(JA 24-26).

After the defense opening statement was concluded

the prosecution brought a motion in limine to prevent

the defense from re-examining the issue of voluntari-

ness (JA 27). The court ruled that the defense could

not attack the voluntariness of the statement but could

bring up any inconsistencies in the statement. The

court specifically ruled that the defense could not intro-

duce evidence about the length of the detention or that

Crane was alone with the police (JA 28).*

The eourt permitted an avowal as to any matters the

defense believed were improperly excluded (JA 29).

At trial the evidence on behalf of the prosecution

which incriminated petitioner consisted of two state-

ments Crane made to friends and family, the statement

ef a co-defendant and Crane’s own confession.

Petitioner’s mother told police that Crane said he

robbed the store and shot the victim (TE IV 62).

Orane also told a friend he robbed a liquor store (TE

II 57).

The confession of petitioner's co-defendant was also

in evidence. His detailed confession accused Crane of

the robbery and murder. This statement resolved any

inconsistencies regarding the caliber of the weapon and

why no money was taken (TE II 28-34; TE IV 8-9).

Crane has not challenged the admissibility of his

confession, which contained facts only the killer could

know. Orane knew there was a half pint of whiskey

*In fact, the jury did hear evidence about the length of the

detention (JA 31-32). They also learned that Crane was alone

with four officers during the questioning (TE II 45).

7

on the counter at the time of the killing (JA 36-37;

TE IV 47). Crane took a brown paper bag to the

store for loot (TE II 21). Sueh a bag was found at

the seene (TE IV 53, 78-79).

As petitioner acknowledges, he was permitted to

question the police about his confession. He cross-ex-

amined the arresting officer extensively on the numer-

ous factual mistakes in the confession, sueh as those

relating to the time of the crime, whether any money

was taken, and whether the store had an alarm system

(JA 41-43). He also questioned police about a éor-

rection made by Crane as to the actual caliber of the

murder weapon (TE II 47-48). Petitioner elicited

from the firearms examiner the fact that the caliber

mentioned in the taped statement was ineorrect (TE

Il 66).

On avowal petitioner introduced evidence concern-

ing the length of the detention. He also elicited that

the room was either ten or twelve feet square and had

no windows. Even that testimony was weakened be-

cause the only officer who was asked refused to rule

out the possibility that the door was left open. He also

showed that four or five po'icemen were present dur-

ing the questioning (JA 45-..).

In response the Commonwealth showed that Crane

was calm and was permitted to use the restroom. Offi-

cers also asked him if he wanted food or drink (JA

48-49). One officer apparently made more than one

trip to get Crane various snacks (JA 50).

E. The Appeal

On appeal the Kentucky Supreme Court affirmed.

Crane v. Commonwealth, Ky., 690 8. W. 2d 753 (1985).

The court held that the evidence Crane sought to intro-

duce related solely to voluntariness. The court stated

that under the orthodox rule followed in the Common-

wealth, voluntariness is conclusively determined by the

trial court. Kentucky Rule of Criminal Procedure

(RCr) 9.78. The court stated that a defendant may

introduce any competent evidence relative to the au-

thenticity, reliability or credibility of a confession.

SUMMARY OF THE ARGUMENT

The States follow one of two procedures for deter-

mining the voluntariness of a confession. The Wig-

more orthodox rule, followed by the majority of states,

including Kentucky, holds that the pre-trial determin-

ation of the judge on the issue of voluntariness is con-

elusive and binding upon the jury. At trial the jury

is normally instructed that it shall weigh all the evi-

dence, but is not given the option of rejecting the con-

fession as involuntary. Under the Massachusetts rule

the trial court makes an initial voluntariness deter-

mination; if voluntary the confession is admitted into

evidence but the jury is presented the circumstances

surrounding its procurement and is instructed that

they may reject the confession as evidence entirely if

they find it was given involuntarily. The Court has

given at least tacit approval to both procedures in

Jackson v. Denno, 378 U. 8. 368 (1964) and Lego v.

Twomey, 404 U. 8. 477 (1972), and other cases.

As originally applied throughout the states, and as

expounded by Wigmore, the purpose of excluding a

coerced confession was related to that confession’s pre-

sumed unreliability; coerced confessions were, Wig-

more said, testimonially untrustworthy. Due to the

narrow focus of the admissibility inquiry, the trial

court was encouraged, indeed, required, to utilize in-

dicia of reliability in making the threshold determina-

tion of admissibility. This determination was purely

an evidentiary question. The trial court could believe

a confession beaten out of a suspect was true and admit

it into evidence. The jury would then re-examine all

evidence — the circumstances of the confession (the

beating) versus the credibility of the statement — and

assign it the weight they believed it deserved The trial

court's determination was truly ‘‘threshold’’ because

the court determined admissibility by gauging relia-

bility — then the jury was given the facts and told to

do the same thing.

This explains repeated references in the case law to

the practice of presenting to the jury the circumstances

of the confession under the orthodox rule. However,

as the Kentucky Supreme Court has recognized, the

voluntariness inquiry is no longer concerned with re-

liability. In fact, this Court has specifically forbidden

the trial court to consider indicia of reliability in mak-

ing its pre-trial voluntariness determination. That

determination is now concerned with police misconduct

and otherwise insuring that the confession represents

the ‘‘free and voluntary”’ choice of the confessor. The

functions of judge and jury no longer overlap under

the orthodox rule because the judge determines volun-

tariness (excluding credibility) while the jury deter-

mines credibility (excluding voluntariness).

This Court's movement of the law away from allow-

ing coerced but reliable confessions into evidence is the

foundation for the Kentucky Supreme Court's rule in

Crane. The rule provides that the trial court can ex-

clude from the jury's consideration evidence relating

solely to voluntariness (having little or no relation to

any other issue) while permitting the introduction of

any competent evidence relating to authenticity, relia-

bility, or credibility. It is based upon the validity of

the constitutional safeguards provided by the Court and

the States in developing strict standards of voluntari-

ness, requiring a pre-trial suppression hearing to fully

resolve the issue, and providing for appellate and

habeas corpus review.

Petitioner has provided no constitutional basis for

a holding by the Court that all circumstances of all

confessions are inherently related to credibility and

therefore must be admitted before a jury which has no

power to reject the confession as evidence on the basis

of voluntariness. Although petitioner attacks the fact

that the voluntariness of the confession is not re-sub-

mitted to the jury (as under the Massachusetts rule),

that issue was not raised below.

There are also strong policy considerations for the

Kentucky Supreme Court's rule in Crene. It rein-

forces the importance of the judge's independent de-

ll

termination of voluntariness at the pre-trial suppres-

sion hearing. It places subtle distinctions between

voluntariness and credibility in the hands of the judge,

not the jury. It prevents the interjection of conclu-

sively settled preliminary issues into the trial in chief.

Finally, it keeps the jury from hearing only one side

of the voluntariness issue, since the defendant’s prior

experience with the law and with police interrogation

will be excluded unless the defendant takes the stand.

The rule in Crane is a logical extension of the orthodox

rule based firmly upon the Court’s expansion of the

voluntariness inquiry. Because the functions of judge

and jury no longer overlap, the Kentucky Supreme

Court may limit the evidence each may hear to that

relevant to the distinct function of each.

Finally, even if the Kentucky trial court erred by

limiting the admission of evidence, reversal is not re-

quired. Almost ali of the facts elicited on avowa!l were

presented to the jury. If error occurred, the case

should be remanded to the Kentucky Supreme Court

for a determination of prejudice.

ARGUMENT

In his brief, petitioner divides his single argument

into four sub-arguments numbered I through IV. Re-

spondent has designated sub-headings by letter and has

combined petitioner’s sub-arguments I and IJ in re-

spondent’s Argument I.A. and petitioner’s sub-argu-

ments III and IV in respondent’s Argument L.B.

12

I,

IN A CRIMINAL CASE, A STATE TRIAL COURT DOES

NOT DENY A DEFENDANT'S SIXTH AND FOUR-

TEENTH AMENDMENT RIGHTS WHEN, AFTER

THE TRIAL COURT DETERMINES THAT THE

CONFESSION WAS VOLUNTARILY MADE, AND

THEREFORE CONSTITUTES ADMISSIBLE EVI-

DENCE, IT EXCLUDES FROM THE JURY'S CON-

SIDERATION EVIDENCE RELATING TO VOLUN.

TARINESS WHICH HAS LITTLE OR NO RELA-

TIONSHIP TO ANY OTHER ISSUE.

A. In Light of Recent Developments in the Law the Trial

Court’s Refusal to Allow Petitioner to Introduce Ir-

relevant Evidence by Cross-Examination Did Not Deny

Petitioner Due Process of Law and His Right to Con-

front Witnesr s.

The petitioner asks the Court to hold that a criminal

defendant has a constitutional right to present to the

jury all the circumstances surrounding the taking of

the confession after the trial judge has conclusively

determined, as a matter of constitutional law, that the

confession was given voluntarily. This claim is sup-

ported neither by logic nor by case law. It proposes a

per se constitutional rule which is unnecessary and

burdensome. Recent developments in the law of con-

fessions provide a constitutional foundation for the

rule of the Kentucky Supreme Court in Crane v. Com-

monwealth, Ky., 690 8. W. 2d 753 (1985); (JA 68-78),

that evidence irrelevant to the issue of credibility need

not be given to the jury. The rule in Crane is a logical

extension of Wigmore’s orthodox rule, in use in over

half the States, and is a constitutional exercise of a

state’s power to delineate between the functions of

judge and jury.‘

Early state and federal court decisions stressed, as

did Wigmore, that the question of the admissibility of

a confession was for the judge and its weight was for

the jury. Implicit within this concept was that when

the jury considered the confessions they ‘“‘must take

into consideration all the circumstances surrounding

them, and under which they were made, including those

under which the court declared, as matter of law, they

were voluntary.’ However, the original formulation

of the orthodox principle also embodied this result :

‘The states have broad powers to establish rules relating to

confessions. This Court stated in Stein v. New York, 346 U. 8.

156, 179 (1953) :

The states are free to allocate functions between judge and

jury as they see fit.

That statement vas reiterated in Jackson v. Denno, 378 U. 8.

368, 391, n. 19 (1964), wherein this Court stated:

Whether the trial judge, another judge, or another jury, but

not the convicting jury, fully resolves the issue of voluntariness

is not a matter of concern here. To this extent we agree with

Stein that the States are free to allocate functions between

judge and jury as they see fit.

See Pletcher v. Weir, 455 U. 8. 603 (1982).

Consider also the requirement that a confession be corroborated

before being admitted into evidence. A finding of corroboration is

a question of law because it determines admissibility; in some

jurisdictions the question is resubmitted to the jury, while in others

it is not. Comment: ‘‘Corroborating False Confessions: An Em-

pirical Analysis of Legal Safeguards Against False Confessions,’’

1984 Wis. L. Rev. 1121, 1140 (1984).

"Burton v. State, 107 Ala. 108, 130-131, 18 So. 284, 290-291

(1895), still cited in Wigmore as illustrative of the orthodox rule.

3 Wigmore, Evidence § 861 (Chadbourn rev, 1970), at 571,

14

It follows that, although the jury may come to the

conclusion that the confessions were not voluntary,

yet if, from extrinsic evidence, or from their char-

acter and circumstances, the jury are sati that

they are true, the jury should act upon them ... .”

The Chadbourn revision of Wigmore continués to

utilize this 1895 case as a fair presentation of the

‘orthodox principle.’’ Nonetheless, it is elsewhere

recognized that the foundation of Wigmore’s original

orthodox rule has been quietly swept away by this

Court’s more recent rulings that involuntary confes-

sions are primarily excluded not because they are un-

reliable, but because exclusion protects a defendant’s

right to a fair trial and deters police misconduct.

Under common law it was well-established that

coerced confessions were excluded because the cireum-

stances of their coercion made them “‘testimonially

untrustworthy.”” Wigmore, Evidence §822 (3rd Ed.

1940).". In §823 of the same edition Wigmore con-

cluded that:

(a) A confession is not excluded because of any

breach of confidence or of good faith. ...(b) A

confession is not excluded because of any illegality

in the method of obtaining it.... (¢) ... [A] con-

fession is not rejected because of any connection

with the privilege against self-crimination.

Id., at 249; Emphasis in original."

*Id.

TChadbourn states this thesis was supported by copious docu-

mentation. Part of the now exercised test appears in 3 Wigmore,

Evidence § 822, n. 1, at 329 (Chadbourn rev. 1970); (Emphasis

in original ).

*Reproduced by Chadbourn, /d., at 330.

15

For this reason the early version of the orthodox

rule laid a much broader foundation for admitting a

confession into evidence than would be possible today.

The scope of inquiry was by definition based upon the

reliability or trustworthiness of the confession. Review

was focused upon whether police actions were of suffi-

cient force or effect so as to produce a false confession.’

Inherent in this review was the now constitutionally

impermissible practice of allowing the trial court to

consider the probable reliability of the confession as a

strong factor in determining its voluntariness. See

Rogers v. Richmond, 365 U. 8. 534, 542-544 (1961).

Under this division of function between judge and

jury it is clear that the admissibility of the confession

was a threshold issue in the sense that the judge would

necessarily use the same evidence as the jury — the

*Id., at 335. The Court has noted that this same false premise

led to the wrong conclusion in Stein v. New York, 346 U. 8. 156

(1953) :

The failure to inquire into the reliability of the jury's

resolution of disputed factual considerations underlying its

conclusion as to voluntariness — findings which were afforded

decisive weight by the Court in Stein — was not a mere over-

sight but stemmed from the premise underlying the Stein opin-

ion that the exclusion of involuntary confessions is constitu-

tionally required solely because of the inherent untrustworthi-

ness of 4 coerced confession. It followed from this premise

that a reliable or true confession need not be rejected as in-

voluntary and that evidence corroborating th. truth or falsity

of the confession and the guilt or innocence of the accused is

indeed pertinent to the determination of the coercion issue.

Jackson v. Denno, 378 U. 8S. at 383-384. See also Meltzer, ‘‘In-

voluntary Confessions: The Allocation of Responsibility Between

Judge and Jury,’’ 21 U. Chi. L. Rew. 317 (1954).

probable reliability of the confession — in reaching the

evidentiary conclusion. The jury would naturally re-

ceive the same evidence of the circumstances surround-

ing the confession because this would also be weighed

in the finding of guilt. The jury would then get a

second chance at the confession because although the

admissibility of the confession was not a jury issue, the

circumstances would be presented to the jury so that

the trier of fact could weigh the impact of threats or

beatings as tending to produce an untrustworthy state-

ment versus other evidence tending to show that its

contents were true.

The foregoing demonstrates that the original limi-

tations of the exclusionary rule regarding confessions

presented an entirely different division of labor be-

tween judge and jury. Because the judge was con-

cerned with admissibility as a factor of reliability —

an obvious concern of the trier of fact — there was a

natural and unpreventable overlap which justified re-

peating for the jury the evidence presented as part of

the motion to suppress. That justification no longer

exists.

In a series of cases the Court gradually expanded

the view that the legal question of the admissibility of

a confession did not depend upon mere reliability."

See Lisenda v. California, 314 U. S. 219, 236 (1941) (Purpose

of due process ‘‘is not to exclude presumptively false evidence,

but to prevent fundamental unfairness in the use of evidence,

whether true or false."’); Haley v. Ohio, 332 U. 8S. 596, (1948) ;

Watts v. Indiana, 338 U. S. 49 (1949); Brown v. Allen, 344 U. 8.

443, 475 (1953) (‘When the facts admitted by the state show

(Footnote Continued on Next Page)

17

This process has been developed to the point where it

is obvious that to say that a confession is‘‘involuntary”’

(and therefore inadmissible as evidence) is to invoke

a complex legal standard."' This standard now has

focused on the Due Process Clause and upon two un-

derlying values (rather than merely reliability) which

govern the propriety of the admissibility of this evi-

dence. These underlying values are:

First, confessions obtained by offensive police prac-

tices will be excluded even though the reliability of the

confession itself is unquestioned. Rogers v. Richmond,

365 U. S. 534 (1961). Reliable confessions will be

excluded even where there is ample evidence apart from

the confession to support the conviction. Malinski v.

New York, 324 U. 8. 401 (1945) ; Stroble v. California,

343 U.S. 181 (1952) ; Payne v. Arkansas, 356 U. 8. 560

(1958) ; Jackson v. Denno, 378 U. 8S. at 386.

Secondly, confessions obtained under circumstances

in which a defendant's free choice is impaired are in-

admissible, even if the police do not resort to offensive

practices. Townsend v. Sain, 372 U. 8S. 293 (1963).

The application of the rule of Due Process voluntari-

ness requires an examination of the ‘‘totality of cir-

cumstances,’’ Haynes v. Washington, 373 U. S. 508

(1963) where the overpowering of a defendant's free

(Pootnote Continued From Preceding Page)

coercion . . ., & conviction will be set aside as violative of due

process. . . . This is true even though the evidence apart from

the confessions might have been sufficient to sustain the jury's

verdict. ’’).

See Grano, ‘‘Voluntariness, Free Will, and the Law of Con-

fessions,’’ 65 Virginia Lc > Review 859 (1979).

18

and voluntary choice is alleged. Miller v. Fenton,

No. 84-5786 (December 3, 1985), slip op., at 13.

The rule of the Kentucky Supreme Court in Crane

does not represent a startling departure from the ortho-

dox rule; it is, rather, a logical extension of it. The

orthodox rule need not, and in some jurisdictions does

not, permit the exclusion of evidence relevant only to

voluntariness. Nevertheless, to permit this exclusion

under limited circumstances and subject it to the pro-

tection of state and federal review, as the Kentucky Su-

preme Court does, is the better practice. This may be

amply demonstrated by considering just exactly what

it is that petitioner wanted to accomplish in the instant

case.

Under the application of the orthodox rule urged

by petitioner, once the trial judge admitted the con-

fession into evidence a defendant would have the right

to present to the jury all the ‘“‘cireumstances”’ sur-

rounding its procurement. The fiction petitioner asks

the Court to adopt is that this evidence is always admis-

sible, as a matter of constitutional law, because there is

no distinction between evidence relevant to voluntari-

ness and evidence relevant to credibility.

What petitioner wants to do is to relitigate the issue

of voluntariness before the jury, even though, under

the orthodox rule, the jury does not have the option to

reject the confession as involuntary. He wants the

jury to reject the confession not because they believe

that an impressionable child ‘‘made up’’ a story to

please the police, but because they believe (or at least

suspect) that the police beat the confession out of him.

19

He wants to throw upon the police the onus of miscon-

duct when that issue has already been settled in a

Jackson hearing and where, because of evidentiary

rules protecting the defendant from being prejudiced

by his past criminal experience, the police are unable

to adequately respond. He wants to inject into the jury

trial a settled issue which will contribute nothing to the

jury’s determination of guilt or innocence, since, in-

deed, the rule in Crane specifically provides that no

competent evidence relating to the ‘‘authenticity, re-

liability or credibility’ of the confession is to be ex-

cluded (JA 72). Absent from petitioner’s argument

is any explanation of how the circumstances of his con-

fession relate to credibility.

The question before the Court is whether the rule

established by the Kentucky Supreme Court in Crane

is constitutional. Petitioner states in his brief, at 42,

that there is a need for a definitive statement of law

from the Court. In Lego v. Twomey, 404 U. 8. 477,

485-486 (1972), the Court said:

Nothing in Jackson questioned the province or

capacity of juries to assess the truthfulness of con-

fessions. Nothing in that opinion took from the

jury any evidence relating to the accuracy or

weight of confessions admitted into evidence. A

defendant has been as free since Jackson as he was

before to familiarize a jury with circumstances

that attend the taking of his confession, including

facts bearing upon its weight and voluntariness.

(Emphasis added).

20

Lego affirmed that the states are free to establish their

own procedures so long as these comport with Jackson

and the U. S. Constitution. The passing reference to

‘*voluntariness’’ above does not, as petitioner believes,

require the issue of voluntariness and its underlying

facts be tried again before the jury. Rather, this is a

reference to the fact that the Court has found both the

Massachusetts rule (retrying voluntariness) and the

orthodox rule (leaving the determination to the judge)

constitutionally acceptable. Jackson v. Denno, 378

U. S. at 378-379. There is nothing in either Jackson or

Lego which leads to the conclusion that the rule of the

Kentucky Supreme Court in Crane is unconstitutional.

a. There Can Be No Prejudicial Restriction of Petitioner’s

Sixth Amendment Rights in Theory.

Petitioner reasons that any restriction of his oppor-

tunity to cross-examine is unconstitutional, citing

Chambers v. Mississippi, 410 U. 8. 284 (1973). How-

ever, the Court in Chambers emphasized that its hold-

ing did not ‘‘signal any diminution in the respect

traditionally accorded to the States in the establish-

ment and implementation of their own criminal trial

rules and procedures”’ (/d., at 302-303). See Church-

well, ‘‘The Constitutional Right to Present Evidence:

Progeny of Chambers v. Mississippi,’’ 19 Criminal Law

Bulletin 131, 137 (1983). Petitioner forgets that not

only do the states have an interest in establishing their

own procedures but that even when focused upon a -

relevant issue cross-examination is ‘‘[s]ubject always

to the broad discretion of a trial judge to preclude

Ti caaceceeeemnaidiaiaaiiniaiinaaait

21

repetitive and unduly harassing interrogation ... .”’

Davis v. Alaska, 415 U. 8. 308, 316 (1974). It is axio-

matie, of course, that no criminal defendant has a right

to cross-examine regarding a matter which is irre-

levant, as a matter of law, to the issue before the trier

of fact.

The rule of the Kentucky Supreme Court in Crane

cannot be unconstitutional in theory because it specifi-

cally allows for the presentation, by cross-examination

or otherwise, of all evidence relating to the ‘‘authen-

ticity, reliability, or credibility of the confession.”

Crane, JA 72. In other words, all relevant evidence is

to be presented to the jury.

Throughout his brief petitioner consistently mis-

represents this aspect of the rule in Crane. Petitioner

acts as though the Kentucky Supreme Court has held

that the circumstances of a confession are never ad-

missible. See, e.g., petitioner’s appendices, where Ken-

tucky is stuck out all alone under the heading ‘*Ortho-

dox Rule — Circumstances Inadmissible,’’ at 7a. What

the Kentucky court actually held was that ‘‘there was

no error in excluding from the jury the circumstances

[of the confession] relating solely to voluntariness.”’

Crane, JA 71. It was the further opinion of the Ken-

tucky court that the proffered evidence did relate

solely to voluntariness. Id. Under Crane, any de-

| fendant who could actually show that the circumstances

of his confession were relevant to credibility would be

entitled to introduce evidence about the taking of the

confession.

etter

22

There is no question that the issue of voluntariness

is one which may constitutionally be left to the trial

judge alone.’* Jackson v. Denno, 378 U. 8S. at 378;

Lego v. Twomey, 404 U.S. at 490. In those states fol-

lowing the orthodox rule this issue is not submitted to

the jury and the trial court’s findings are binding and

conclusive. Kentucky Rule of Criminal Procedure 9.78.

Evidence relating solely to this issue is, by definition,

irrelevant to the determination of a defendant’s guilt

or innocence and the defendant has no right to the

introduction of such evidence. The rule of the Ken-

tucky Supreme Court in Crane merely clarifies, for

the area of confessions, the oldest law on the books.

Evidence, to be admissible, must be relevant.

b. Petitioner is Protected Against Any Prejudicial Restriction

of His Sixth Amendment Right in Practice.

Because the rule of the Kentucky Supreme Court in

Crane only sanctions the exclusion of evidence relating

to voluntariness when that evidence has ‘“‘little or no

relationship to any other issue’’ (JA 72), it is not pos-

sible for the rule to be a constitutional violation of the

defendant’s rights in theory. Respondent further

submits that it is unlikely to present a constitutional

violation in practice.

The cornerstone of petitioner’s argument must be

that the rule in Crane cannot be constitutionally ap-

plied. Petitioner reasons that this is so because the

12Petitioner in fact argues this issue even though the consti-

tutionality of the orthodox rule was not raised below. Brief for

Petitioner, at 41. This issue is not before the Court. Monks v.

New Jersey, 398 U. 8S. 71 (1970).

23

determination of voluntariness is a ‘‘threshold’’ issue

and because there ‘‘is no articulable distinction between

evidence relative to voluntariness and evidence relevant

to credibility.” Crane, supra at 755 (Leibson, J., dis-

senting); JA 73.

At first glance this position is appealing. The Ken-

tucky Supreme Court acknowledged in Crane that the

separation of factors of voluntariness and credibility

may be difficult (JA 71-72).’* The inherent flaw in

this formulation, however, is that it necessarily leads

to the erroneous idea that the ‘‘judge’s decision about

coercion does not preempt the jury’s need to consider

evidence about coercion in deciding guilt.’’ Crane,

supra, at 755 (Liebson, J., dissenting, emphasis added) ;

JA 74. Any issue of coercion, however, is decided

by the trial court as a matter of law; the issue must be

fully resolved before the confession is admitted. Miller

v. Fenton, supra, at 11; Jackson, 378 U. 8. at 387. To

argue that the jury needs to consider coercion in de-

ciding guilt is asking the jury to consider, for example,

that the defendant’s voluntary confession is not true

because the police tortured the defendant for days to

obtain it!

This Court’s voluntariness standard, focusing on

factors other than reliability, makes it unlikely that a

criminal defendant’s Sixth Amendment or Due Process

rights will be unduly restricted by the Crane rule. This

18That has not prevented this Court, however, from prohibiting

the trial judge from considering indicia of reliability in his or her

determination of the voluntariness of the confession at the sup-

pression hearing. Rogers v. Richmond, 365 U. S. 534, 545 (1961).

24

is so for two reasons. First, the divided functions of

judge and jury no longer overlap. The Court has

made it clear that its legal standard of voluntariness

is to be applied in as broad a manner as possible and

may relate to the specific, individual weaknesses of

that particular criminal defendant. Miller, supra, at

12. There is no longer any reason for the jury to

weigh the circumstances of the confession which relate

solely to voluntariness and have little or no relation-

ship to any other issue. Second, the Court in Jackson

v. Denno, 378 U.S. at 380, held that a ‘‘defendant ob-

jecting to the admission of a confession is entitled to

a fair hearing in which both the underlying factual

issues and the voluntariness of his confession are ac-

tually and reliably determined.’’ This hearing and

any exclusion of evidence during the trial in chief

would be fully reviewable at the state and federal levels.

This protects the defendant from an erroneous restric-

tion of rights based upon a trial court’s mistaken ap-

plication of the Crane doctrine as surely as similar

review protects a defendant’s established constitutional

rights in any event.

c. The Rule in Crane is Supported by Sound

Policy Considerations.

First, the rule enhances the likelihood of a correct

determination of voluntariness as a matter of law. If

petitioner’s approach were constitutionally required,

all circumstances surrounding all ¢onfessions would be

submitted to the jury. The only difference between

the orthodox and Massachusetts rule would then be that

25

with the Massachusetts procedure the jury is charged

that they can exclude the confession if they find it was

not voluntary. Although petitioner argues that the

Court should declare the orthodox rule unconstitu-

tional, an issue not raised below," it is the Massachu-

setts rule which is the more constitutionally suspect of

the two. As one commentator has noted, the ‘‘second-

guessing”’ of the trial judges’ voluntariness ruling, in-

herent in the Massachuetts rule,

gives rise to some problems. Since the trial judge

need only satisfy himself that the confession is ad-

missible on the basis of a preponderance of the

evidence and he knows that, whenever he decides

to admit the confession, the defendant may insist

that the issue also be tried to the jury, there may

develop a tendency to allow the confession to be

received, thus undermining to some extent the pro-

tection which Jackson sought to insure. Moreover,

where the issue of voluntariness is tried to the jury,

a conviction thereafter raises the same difficulty

of review which Jackson sought to obviate — the

difficulty of deciding whether a possibly involun-

tary confession affected the jury’s verdict.”

1 Louisell and Mueller, Federal Evidence § 34, at

251-252 (1977).

14See respondent’s Argument I.B., infra.

15In Schneble v. Florida, 405 U. S. 427 (1972) the Court split

over the harmlessness of a Bruton error where the issue of volun-

tariness was presented to the jury. The majority assumed the

jury must have found the confession voluntary because if they had

rejected it, there would have been insufficient evidence to convict.

The dissent, drawing all reasonable inferences in favor of the de-

fendant, assumed the confession was deemed involuntary by the

jury, but that they convicted anyway.

26

If petitioner has his way, and all the circumstances

of the confession bearing on voluntariness are routinely

presented to the jury without the instruction, the same

results will occur. It does not take much analysis to

determine that where a jury is presented, on one hand,

with a confession to the crime, and on the other, a one-

sided inference that the confession was beaten out of

the defendant, they will be discussing the effects of this

‘‘eoercion’’ in the jury room with or without the in-

struction. Because the trial court is fully aware that

this ‘‘second guessing’’ is going to occur in any event,

the temptation will be to pass the confession along to

the jury pro forma, undermining the injunction of

Jackson, 378 U. S. at 391, that a criminal defendant

is entitled to ‘‘a reliable and clear-cut determination

of the voluntariness of the confession. . . .”’ By em-

phasizing the crucial role of the trial judge in the de-

termination of voluntariness, the rule in Crane avoids

this limitation of the Massachusetts rule. As the Court

said in Lego v. Twomey, 404 U. S. at 490, speaking of

the Massachusetts rule, ‘‘[w]le are not disposed to im-

pose as a constitutional requirement a procedure we

have found wanting merely to afford petitioner a

second forum for litigating his claim.”’

Second, the Kentucky Supreme Court recognized

in Crane that there may be difficulty in the separation

of factors relating to voluntariness and credibility and

felt this ‘‘separation is best vested in the hands of the

trial judge and not in the minds of the jurors’’ (690

S. W. 2d at 755); (JA 72). This Court has previously

a i a tt

27

noted a ‘‘failure to distinguish between the discrete

issues of voluntariness and eredibility. . . .’’ Jack-

son, 378 U.S. at 387, n. 13. The issue is better left to

the trial court.

Third, also recognized by the Kentucky Court in

Crane, is the fact that the issue of voluntariness is a

settled issue, no longer debatable except on appeal (690

S. W. 2d at 755); (JA 72). This consideration has

been fully explored. Where the evidence is irrelevant

to the jury’s task, what constitutional purpose is served

by its presentation to them?

Finally, the Kentucky Supreme Court recognized

that during the ‘‘retrial’’ of a voluntariness hearing,

were the defendant allowed to present to the jury ‘‘all’’

the circumstances surrounding the procurement of his

confession, only some of the circumstances would ac-

tually be presented. Said the court:

. . . the evidence offered is usually selective when

the defendant fails to take the stand, so his pre-

vious experiences with the law, his knowledge of

interrogating procedures, his familiarity with Mi-

randa rights, ete. are excluded.

Crane, 690 8. W. 2d at 755; JA 72

Even when the defendant takes the stand the scope of

the State’s inquiry may be limited. Petitioner, how-

ever, states that this danger is ‘‘ unlikely to occur in any

ease’ because the prosecution could rebut any infer-

ence of inexperience with evidence of prior convictions

(Brief for Petitioner, at 33).

28

Petitioner is certain'y correct in implying that the

only way a prosecutor could demonstrate a defendant’s

familiarity and experience with the criminal justice

system would be through a showing that a defendant

had been arrested and/or interrogated and/or convicted

previously. However, the rule in Kentucky is that no

evidence of prior arrest, questioning, or conviction may

be admitted where the witness does not testify. The

narrowly drawn exception to this rule occurs where the

prior conviction or other police activity is intrinsically

linked to the case then being tried; as, for example,

when a defendant has been previously convicted of the

terroristic threatening of a murder victim. If a de-

fendant in Kentucky does take the stand he may be

asked only if he has been previously convicted of a

felony. If his answer is ‘‘ Yes,’’ that is the end of it.’®

The Kentucky Supreme Court was correct; there is no

fair way to litigate the voluntariness of the confession

of an experienced criminal before the jury. Yet this

fact may play a crucial role in the voluntariness

determination.

Finally, has petitioner really demonstrated the need

for a rule of constitutional law requiring that all the

circumstances (whatever the word ‘‘circumstances’’

may mean) of all confessions must be admitted because

they are always, as a matter of constitutional law, rele-

vant to the credibility of the confession? Consider the

following hypothetical. A criminal defendant gives a

16See Commonwealth v. Richardson, Ky., 674 8S. W. 2d 515

(1984).

29

detailed point-by-point description of a murder. It is

known that there were no accomplices. There are only

two possibilities. Either the defendant is:

1) the killer, or

2) an innocent party coached by police on the de-

tails of the crime.

Kentucky has no hesitation in stating that even if the

police coached an innocent person anxious to confess

to any crime, for psychological reasons, no Court

would hold the confession voluntary. If the police

forced the innocent party to repeat the details of the

crime the answer is equally obvious. If the trial court

rules the confession voluntary and admits it into evi-

dence, none of the circumstances surrounding its pro-

curement are relevant to credibility. To hold that a

jury which, by law, must consider the confession as

evidence is constitutionally required to consider the

‘‘circumstances”’ as bearing on credibility is, it appears

to respondent, to challenge the adequacy of the sup-

pression hearing and all appellate review. Only if pe-

titioner shows that the mechanism of the suppression

hearing and further review is inadequate can he demon-

strate the need for a per se rule. What rights of the

defendant are harmed in the above scenario? Peti-

tioner has failed to provide a logical reason for the

Court to support his claim. The decision of the Ken-

tucky Supreme Court should be affirmed.

30

B. The Rule in Crane is Based Upon the Recognition That

Different Evidence May Be Required to Decide a Ques-

tion of Law Versus a Question of Fact. The Rule Does

Not Force an Unconstitutional Choice Between the

Exercise of Individual Constitutional Rights.

Petitioner is quite right when he states that the

Crane rule recognizes a substantial distinction between

the role of the jury in confession cases as opposed to

some other types of cases. Respondent submits that

the distinction is logical and proper.

Unlike other evidence, admissibility of a confession

has nothing to do with its probative value. As this

Court has stated:

Our decisions . . . have made clear that convic-

tions following the admission into evidence of con-

fessions which are involuntary, i.e., the product of

coercion, either physical or psychological, cannot

stand. This is so not because such confessions are

unlikely to be true but because the methods used

to extract them offend an underlying principle in

the enforcement of our criminal law: that ours is

an accusatorial and not an inquisitorial system —

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. 8S. 534, at 540-541.

This fundamental distinction is at the heart of the

Jackson v. Denno concern that a jury cannot be relied

upon to disregard trustworthy evidence and reject a

coerced, albeit undeniably true, confession. Jackson,

378 U.S. at 382.

31

Miller v. Fenton, supra (decided Dee. 3, 1985),

again underscored the uniqueness of confession cases

and held that voluntariness is a question of law and

that the subsidiary fact questions of credibility and de-

meanor are not crucial to the proper resolution of the

ultimate issue of voluntariness.

The foregoing demonstrates the error in petitioner’s

hypothetical about a defendant who wishes to show that

he did not possess contraband discovered in a search.

Crane would not prohibit a defendant from relitigating

the fact of possession to the jury. The claim in the

hypothetical is similar to the fundamental question in

a eonfession case of whether the confession was made

at all. Crane permits a defendant to introduce evi-

dence *“*. . . relating to authenticity, reliability or

eredibility of the confession’? (Crane, supra, at 755) ;

(JA 72). When a defendant denies possessing con-

traband or making a confession attributed to him an

issue of authenticity and credibility is raised. Crane

specifically leaves such issues for the jury.

The same is true of petitioner’s argument relating

to identification questions. This Court has previously

distinguished between confession and identification

eases in Watkins v. Sowders, 449 U. S. 341 (1981).

Unlike a confession, ‘‘[i]t is the reliability of identi-

fication evidence that primarily determines its admis-

sibility. . . . (Citations omitted).’”’ Id. at 347. In

such eases the trial judge and jury are both making

the same determination, i.e., the reliability o1 the iden-

tification. As respondent has explained, the question

32

of voluntariness has little or nothing to do with eredi-

bility. Binding the jury on the subsidiary facts in-

volved in the voluntariness determination does not deny

a defendant due process of law. Miller v. Fenton,

supra.

Petitioner next complains that there is no distine-

tion between facts relating to credibility and facts re-

lating to voluntariness. The questions of location and

length of detention and the defendant’s character and

background have been held material te voluntariness.

Fikes v. Alabama, 352 U.S. 191 (1957). Factors such

as the size of the room and number of police officers

present at the interrogation have no relation to de-

meanor or credibility. What is there in the forego-

ing that relates to credibility? How do any of these

factors contribute to an inaccurate confession? There

was no dispute about those factors. Petitioner did

not say that he was somehow misled in his statement

by the sheer number of policemen or dimensions of the

room.

As for his supposed low mentality, it was uncon-

troverted that the only deficiency related to academic

standing (TH 36-37). Petitioner is a sophisticated

delinquent (TH 39-40)."

17Petitioner’s oft repeated assertion that he was functioning

at a third or fourth grade level (Brief for Petitioner 6, 7, 38) was

not presented on avowal. It was not discussed as a factor relating

to credibility when the trial court ruled (TE II 3-7; JA 27-30).

Nor was the mentality of petitioner even mentioned in his state

court brief. The issue is not properly before this Court, Monks v.

New Jersey, 398 U. 8S. 71 (1970).

33

His only proven psychological aberration was a

tendency to tell lies in order to appear important (TH

41-42). That facet of petitioner’s character does relate

to credibility and was fully explored during cross-ex-

amination of the officers through illumination of incon-

sistencies and errors in the statement.

The Kentucky Supreme Court stated the rationale

behind the Crane rule as follows:

The dangers inherent in admitting evidence before

the jury concerning the circumstances attendant to

taking the confession are obvious. We have previ-

ously spoken of the difficulty in separation of

those factors relating to voluntariness and those

relating to credibility, and feel this separation is

best vested in the hands of the trial judge and not

in the minds of the jurors. Second, the issue of

voluntariness is a settled issue, no longer debatable

except on appeal. Third, the evidence offered is

usually selective when the defendant fails to take

the stand, so his previous experiences with the law,

his knowledge of interrogating procedures, his

familiarity with Miranda rights, etc, are excluded.

Crane, supra, at 755; JA 71-72.

The policies for insulating voluntariness from re-

view by the jury stated above are reasonable. The rule

serves the important goal of separation of the responsi-

bilities of the trial court and jury. Miller, supra, holds

that voluntariness is a question of law, and because it

is a question of law the trial court’s conclusion is en-

titled to no special deference even in federal court.

Id., at 8. A defendant’s rights are fully protected by

34

the appellate process. Resubmitting the issue to the

jury, therefore, is an exercise in futility. This Court

has stated:

Duncan v. Louisiana, 391 U. 8. 145, (1968), which

made the Sixth Amendment right to trial by jury

applicable to the States, did not purport to change

the normal rule that the admissibility of evidence

is a question for the court rather than the jury.

Nor did that decision require that both judge and

jury pass upon the admissibility of evidence when

constitutional grounds are asserted for excluding

it. We are not disposed to impose as a constitu-

tional requirement a procedure we have found

wanting merely to afford petitioner a second forum

for litigating his claim.

Lego v. Twomey, 404 U.S. at 490.

The fact that some states permit a defendant to argue

voluntariness to the jury does not mean that Ken-

tucky’s refusal to do so is constitutional error.

Petitioner begins by arguing that the excluded testi-

mony, preserved on avowal, was probative to the credi-

bility of his confession. By the end of his brief peti-

tioner is arguing that it was error not to submit the

voluntariness issue to the jury (Brief for Petitioner,

at 40). By this petitioner attacks the orthodox rule

itself, not just Kentucky’s interpretation of it. Such

a result is not possible in this case since the issue was

raised neither at trial nor on appeal. The Kentucky

Supreme Court was never asked to adopt the Massa-

chusetts rule, which requires a voluntariness instruc-

tion to the jury. See, Crane v. Commonwealth, Ky.,

690 S. W. 2d 753 (1985) ; JA 68-72.

35

This is not the only example of petitioner’s streteh-

ing the appealable issue in the case at bar. Also argued

is the constitutionality of the Kentucky Supreme

Court’s holding in Crane that the trial judge’s deter-

mination of voluntariness is conclusive and binding on

the jury. Petitioner states that this ruling ‘‘insulates

the issue of voluntariness from application of the rea-

sonable doubt standard by the jury at trial and there-

fore violates the Due Process Clause of the Fourteenth

Amendment.’"* Brief for Petitioner, at 41. Again,

the issue is not before the Court, not having been raised

below. It is the identical issue raised and decided by

the Court in Lego v. Twomey, 404 U. 8. 477, 489 (1972).

Petitioner’s final argument is that the Crane rule

requires him to choose between rights. He claims that

Kentucky law would permit a defendant who waives

complaints about voluntariness to present all evidence

surrounding procurement of the confession. Petitioner

misunderstands Kentucky law.

In Dieh! v. Commonwealth, Ky., 673 8S. W. 2d 711

(1984), the defendant claimed a consent to search given

by his wife was not voluntary. She was permitted to

testify at trial but was precluded from testifying about

the voluntariness of her consent. Jd., at 712. Based

upon Diehl, whether or not a defendant challenges the

voluntariness of his confession at a suppression hear-

ing he will be permitted to present any and all evidence

18Kentucky adopted a preponderance of the evidence standard

for the voluntariness determination at the suppression hearing in

Tabor v. Commonwealth, Ky., 613 8. W. 2d 133 (1981). The

burden, of course, is on the prosecution.

36

relating to any issue except voluntariness. There is

no dilemma involved.

Petitioner’s own conflicting claims merely confuse

the issue. The only question presented by this case

concerns the propriety of the trial court’s restriction

of the evidence sought to be introduced by the peti-

tioner when, in the judgment of the trial court, that

evidence was irrelevant to the determination of peti-

tioner’s guilt or innocence. Crane v. Commonwealth,

690 8S. W. 2d at 755; JA 71. As respondent has demon-

strated, this distinction is justifiable where, at little or

no cost to the criminal defendant, important State in-

terests are served. The judgment of the Supreme

Court of Kentucky should be affirmed.

II. IF KENTUCKY ERRED BY LIMITING THE AD.

MISSION OF EVIDENCE, THE ERROR WAS

HARMLESS BEYOND A REASONABLE DOUBT.

Should the Court decide that Kentucky violated

Major Crane’s constitutional rights by the restriction

of defense counsel’s cross-examination of the interro-

gating officers, summary reversal of Crane’s conviction

is not required. Instead, this case should be remanded

to the Kentucky Supreme Court for a determination of

prejudice.

In Chapman v. California, 386 U.S. 18 (1967), the

Court firmly rejected the argument that all federal

constitutional errors, regardless of significance to the

specific case, must be considered inherently harmful.

The Court reasoned that in the context of a particular

case the perceived error may have had very little in-

37

fluence (if any) on the jury’s verdict at trial, and that

where a reviewing court may confidently say that no

such effect occurred, the reversal of the conviction pro-

vides an unjustified windfall for the defendant. Id.

at 21-24; United States v. Hasting, 461 U. 8. 499, 508-

509 (1983). Since Chapman, the Court has repeatedly

reaffirmed the principle that an otherwise valid con-

viction will not be set aside if the constitutional error

that occurred before or during trial was harmless.”

Even a coerced coufession may be harmless. Harring-

ton v. California, 395 U. 8. 250 (1969) ; Milton v. Wain-

wright, 407 U. 8. 871 (1972).

Petitioner is left, therefore, with the notion that the

error in this case was (and is) so egregious that it

19The Court has before it the question of whether an erroneous

restriction upon a defendant’s opportunity to impeach an adverse

witness can ever be harmless. Delaware v. Van Arsdall, No. 84-1279

(October term 1985). In the recent past the Court has applied the

harmless error doctrine in Rushen v. Spain, 464 U. 8S. 114 (1983)

(right to be present at trial); United States v. Hasting, supra,

(improper comment on defendant's silence at trial, in viclation of

Self-Incrimination Clause) ; Hopper v. Evans, 456 U. 8. 605, 613-

614 (1982) (statute improperly forbidding court from giving a

jury instruction on a lesser included offense in a capital case, in

violation of Due Process Clause) ; Moore v. Illinois, 434 U. S. 220,

232 (1977) (admission of identification in violation of Sixth Amend-

ment Counsel Clause) ; Brown v. United States, 411 U. 8. 223, 231-

232 (1973) (admission of out-of-court statement in violation of

Sixth Amendment Confrontation Clause); Milton v. Wainwright,

407 U. 8. 371 (1972) (admission of confession in violation of Sixth

Amendment Counsel Clause) ; Chambers v. Maroney, 399 U. 8. 42,

52-53 (1970) (admission of evidence obtained in violation of Fourth

Amendment) ; Coleman v. Alabama, 399 U. S. 1 (1970) (denial of

right to counsel at a preliminary hearing in violation of Sixth

Amendment Counsel Clause).

38

strikes at the very heart of the concept of a fair trial

and effectively eliminates all confidence in the verdict

of that trial. This situation is not presented by the

ease at bar. Petitioner contends only that the trial

court’s ruling prevented him from developing for the

jury the following circumstances: ‘‘to wit, evidence of

the number of police officers who interrogated the peti-

tioner; the length of the interrogation and the dimen-

sions of the room in which the interrogation was con-

ducted.’’”°

In fact, the jury heard testimony about the length

of detention prior to the confession. During his open-

ing statement petitioner told the jury he would intro-

duce evidence concerning the circumstances of the

arrest and questioning which would show that the con-

fession was not credible (JA 23-24).

At the trial evidence was introduced showing that

Detective Branham was informed of the arrest at 6:15

p-m. He said he took the taped statement beginning at

7:50 p.m. (JA 31).”" The foregoing evidence was more

favorable to Crane than the actual facts warranted

because it initially appeared that Crane might have

been questioned during the entire hour and forty-five

*°Brief for Petitioner, at 7. The avowal testimony of the in-

terrogating officers, during which petitioner was able to ask all the

questions he would have asked before the jury, appears at JA 45-52.

"Branham also said the confession began at 8:50 p.m. (JA

32). That time is undoubtedly a mistake. All witnesses repeatedly

said the actual time was 7:50 p.m. (JA 6, 11, 46). Crane was

handed over to social workers at 8:45 (JA 13). Any belief by

the jury that questioning lasted an extra hour merely strengthens

the harmless error argument.

39

minutes. In fact, Crane was arrested at 5:52 p.m. No

questions were even asked until 6:08 p.m. (JA 3-4).

Next, some twenty-five minutes were consumed by pro-

cessing at the police station (JA 49). There were some

questions on the way to the Youth Bureau. Another

twenty-one minutes were required for paper work at

the bureau. Burbrink said he did not finish processing

Crane until 6:59 (JA 5). Based on the record Crane

was questioned for less than an hour prior to the taped

confession.

Evidence was also introduced showing that the only

people present during the questioning were Crane and

four other officers. Again the evidence presented to

the jury was more favorable than the actual facts.

There was no police plot to isolate Crane.

Uncontroverted evidence proved that police in-

formed Crane’s family at once of the arrest. An aunt

told police at 5:52 p.m. that she and Crane’s mother

were on their way (JA 4). Testimony showed that

police made numerous attempts to contact the family

all evening (JA 7, 50-51).

Petitioner was also permitted to examine witnesses

on the inconsistencies in the confession.** Discrepancies

relating to whether money was taken (JA 33, 41-42;

TE IV 54), whether it was possible for Crane to have

heard or seen the victim trigger an alarm (JA 33, 41-

43), the time of the crime (JA 38, 41) and the caliber

of the murder weapon (Jd.) were all discussed at

22The voluntariness and admissibility of this confession, as a

matter of law, is not contested. The confession will be used against

Major Crane at any retrial.

40

length. Vigorous defense arguments on these same

points were made to the jury (TE VI 19-26).

The evidence aside from Crane’s confession, such as

his admission to his mother and the co-defendant’s -

confession, thoroughly incriminated Crane. The avowal

testimony on the size of the room was the only sup-

posedly relevant evidence which the jury had not

already heard.

In view of the amount of evidence that Crane was

permitted to introduce and in view of the overwhelming

evidence, the limits placed on defense evidence did not

deny Crane a fair trial. District of Columbia v.

Clawans, 300 U. 8S. 617 (1937); Gordon v. United

States, 344 U.S. 414 (1953) ; Harrington v. California,

supra.

When this issue was first raised in the Kentucky

Supreme Court the respondent argued harmless error.”*

However, because the Kentucky Supreme Court found

that no error had been committed, it did not reach that

issue in its opinion.** Nonetheless, should the Court

decide that constitutional error has been committed, it

should remand this ease back to the Kentucky Supreme

Court for a determination of prejudice.

23Crane v. Commonwealth, Kentucky Supreme Court, No. 84-

SC-407-MR, Brief for Appellee (June 20, 1984), at 15.

24Crane v. Commonwealth, Ky., 690 8S. W. 2d 753 (1985).

41

CONCLUSION

For all the foregoing reasons the judgment of the

Supreme Court of Kentucky should be affirmed, or, in

the alternative, the case should be remanded to that

Court for a determination of prejudice.

Respectfully submitted,

Davip L. ARMSTRONG

Attorney General of

Kentucky

Joun S. GILLia

Assistant Attorney General

of Kentucky

Virart W. Wess III

Assistant Attorney General

of Kentucky

116 Capitol Building

Frankfort, Kentucky 40601-3494

Telephone : (502) 654-7600

Counsel for Respondent