Amicus Curiae Brief — Colorado v. Connelly

Supreme Court, U.S,

| FILED

No. 85-660 MAR 25 1968

NIOL, JR.

In The CLERK

Supreme Court of the United States

October Term, 1985

— '

UV

THE STATE OF COLORADO,

Petitioner,

v.

FRANCIS BARRY CONNELLY,

Respondent.

ty

Vv

BRIEF AMICI CURIAE IN

SUPPORT OF THE PETITIONER

BY THE COLORADO ATTORNEY GENERAL AND THE

35 AMICI THAT APPEAR ON THE INSIDE COVER

ra’

Vv

Duane WooparpD

Attorney General

Caries B. Howe

Deputy Attorney General

Ricuarn H. Forman

Solicitor General

Eric PerryMANn

Assistant Attorney General

Counsel of Record

1525 Sherman Street, 3d Floor

Denver, Colorado 80203

Telephone: (303) 866-3549

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

Alabama by Charles A. Graddick, Attorney General

California by John Van de Kamp, Attorney General

Connecticut by John J. Kelly, Chief State’s Attorney

Delaware by Charles M. Oberly, Attorney General

Florida by Jim Smith, Attorney General

Guam by Richard Opper, Attorney General

idaho by Jim Jones, Attorney General

Illinois by Neil P. Hartigan, Attorney General

Indiana by Linley E. Pearson, Attorney General

lowa by Thomas J. Miller, Attorney General

Kentucky by David L. Armstrong, Attorney General

Louisiana by William J. Guste, Jr., Attorney General

Michigan by Frank J. Kelley, Attorney General

Minnesota by Hubert H. Humphrey, III, Attorney General

Mississippi by Edwin L. Pittman, Attorney General

Missouri by William L. Webster, Attorney General

Montana by Mike Greely, Attorney General

Nevada by Brian McKay, Attorney General

New Hampshire by Stephen E. Merrill, Attorney General

New Jersey by W. Cary Edwards, Attorney General

North Carolina by Lacy H. Thornburg, Attorney General

North Dakota by Nicholas J. Spaeth, Attorney General

Ohio by Anthony J. Celebrezze, Jr., Attorney General

Oklahoma by Michael Turpen, Attorney General

Oregon by David Frohnmayer, Attorney General

South Carolina by Travis Medlock, Attorney General

Tennessee by W. }. Michael Cody, Attorney General

Texas by Jim Mattox, Attorney Ceneral

Utah by David L. Wilkinson, Attorney General

Vermont by jeffrey L. Amestoy, Attorney General

Virgin 4slands by Leroy A. Mercer, Attorney General

Virginia by Mary Sue Terry, Attorney General

Washington by Kenneth O. Eikenberry, Attorney General

Wyoming by Archie G. McClintock, Attorney General

Colorado District Attorneys Council

QUESTIONS PRESENTED FOR REVIEW

1. Does the due process clause of the fourteenth

amendment require suppression of a confession as ‘‘invol-

untary’’ absent any action by the police to elicit the con-

fession?

2. Where a suspect is advised of his Miranda rights

and admittedly understands them, is his waiver of rights

involuntary solely because he psychotically believed that

he had no choice but to confess?

TABLE OF CONTENTS

Pages

QUESTION PRESENTED FOR REVIEW ............... i

OOP Fle lt > ili

STATEMENT OF THE AMICI CURIAE ................ 1

STATEMENT OF THE CASE, nn ncccccccccceceescessceseeeeen 1

SUMMARY OF ARGUMENT .cccccccccececccseesseesseeeennenetnnee 5

ARGUMENT 6

I. THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT DOES NOT

REQUIRE SUPPRESSION OF A CONFES-

SION AS “INVOLUNTARY”? ABSENT ANY

ACTION BY THE POLICE TO ELICIT THE

CONFESSION. 6

Il. WHERE A SUSPECT IS ADVISED OF HIS

MIRANDA RIGHTS AND ADMITTEDLY UN-

DERSTANDS THEM, HIS WAIVER OF

RIGHTS IS VOLUNTARY IN THE AB-

SENCE OF POLICE ACTION TO INDUCE

THE WAIVER. ......... 10

OO UE, Se 15

iil

TABLE OF AUTHORITIES

Pages

CaSsEs

Asheraft v. Tennessee, 322 U.S. 143 (1944) ................ 6, 8, 10

Bank of Columbia v. Okely, 4 Wheat. 235 (1819) Pe

Beecher v. Alabama, 389 U.S. 35 (1967) .....ccccccccccccnene 9

Beecher v. Alabama, 408 U.S. 234 (1972) ........ccccccccceen 8

Berkemer v. McCarty, 104 S. Ct. 3138 (1984) 11,13

Blackburn v. Alabama, 361 U.S. 199 (1960) ........... ae 7,9

Brooks v. Florida, 389 U.S. 413 (1967) ccc i)

Brown v. Mississippi, 297 U.S. 278 (1936) 6, 7,10

Canty v. Alabama, 309 U.S. 629 (1940) : 10

Chambers v. Florida, 309 U.S. 227 (1940) ...ccccccccccceeesssensee 10

Clewis v. Texas, 386 U.S. 707 (1967) a 9

Culombe v. Connecticut, 367 U.S. 568 (1961) 8,9

Daniels v. Williams, 106 S. Ct. 662 (1986) 6

Darwin v. Connecticut, 391 U.S. 346 (1968) ...... shanna i)

Davis v. North Carolina, 384 U.S. 737 (1966) ..............9, 14

Edwards v. Arizona, 451 U.S. 477 (1980) 2... 11,12

Fare v. Michael C., 442 U.S. 707 (1979) 02cm 8, 14

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

Gallegos v. Colorado, 370 U.S. 49 (1962) cco y

Gallegos v. Nebraska, 342 U.S. 55 (1951) .)

Greenwald v. Wisconsin, 390 U.S. 519 (1968) ......... y

Haley v. Ohio, 332 U.S. 596 (1948) nnn anecrcveccnevneenenenenenen 10

Harris v. South Carolina, 338 U.S. 68 (1949) 9

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

iv

TABLE OF AUTHORITIES—Continued

Pages

Hurtado v. California, 110 U.S. 516 (1884) ............. 6

Jackson v. Denno, 378 U.S. 368 (1904) no. eee 7

Johnson v. Zerbst, 304 U.S. 458 (1988) ncn 13

Lee v. Mississippi, 332 U.S. 742 (1948) n-ne 10

Leyra v. Denno, 347 U.S. 556 (1904) 0.0m 9

Lisenba v. California, 314 U.S. 219 (1941) ............... 7,10

Lomax v. Texas, 313 U.S. 544 (1940) nnn ceeccccecceencenernencnnnnne 10

Lynumn v. Illinois, 372 U.S. 528 II osiiptuicacliniaialiabmesbuigash )

Lyons v. Oklahoma, 322 U.S. 596 (1944) ....... aE Pea 10

Malinski v. New York, 324 U.S. 401 (1945) 10

Malloy v. Hogan, 378 U.S. 1 (1964) —.......... eladicailaidl 14

Michigan v. Mosley, 423 U.S. 96 es 12

Michigan v. Tucker, 417 U.S. 433 ( ee

Miller v. Fenton, 106 S. Ct. 445 (1985) cee 7

Mincey v. Arizona, 437 U.S. 385 (1978)... 8

Miranda v. Arizona, 384 U.S. 436 (1966) ...... unas 2, 4, 5, 10,

11, 12, 13, 14

Moran v. Burbine, 54 U.S.L.W. 4265 (U.S. March

OS 12,15

North Carolina v. Butler, 441 U.S. 369 (1979) 11, 12

Oregon v. Bradshaw, 103 S. Ct. 2830 I i cnieicnbeni 11

Oregon v. Elstad, 105 S. Ct. 1285 (1985) ............ 12, 14, 15

Payne v. Arkansas, 356 U.S. 560 re 9

People v. Connelly, 702 P.2d 722 (Colo. 1985) 0. 4,9

Procunier v. Atchley, 440 U.s. 446 (1971)... aoe

Reck v. Pate, 367 U.S. 433 (VIG) ) nn eeeecceccocenseeneeernneenenmnnenne 9

TABLE OF AUTHORITIES—-Continued

Pages

Rhode Island v. Innis, 446 U.S. 291 (1980) 20000, 13

Rogers v. Richmond, 365 U.S. 534 (1961) .000. 7,9

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) 0... 7

Spano v. New York, 360 U.S. 315 (1959) 0. 9

Tague v. Louisiana, 444 U.S. 469 (1980) —... snniabiaa 11

Townsend v. Sain, 372 U.S. 293 (1963) eee «=D

Turner v. Pennsylvania, 338 U.S. 62 (1949) 000. 9

United States v. Washington, 431 U.S. 181 (1977) .....14, 15

Vernon v. Alabama, 313 U.S. 547 (1941) .._._. 10

Ward v. Texas, 316 U.S. S47 (1942) nnn nnnneeeeceneceneeeneeenee 10

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

White v. Texas, 309 U.S. GBL (1940) cence eceeeceeeneeeneensee 10

Wyrick v. Fields, 459 U.S. 42 (1982) —

STATUTES

Colo. Rev. Stat. 16-12-102 (1978) 4

Colo. Rev. Stat. 18-3-103(1) (a) (1978) necccceeccccsnseeensceenneee 3

CoNSTITUTIONAL PROVISIONS

U.S. Const. amend. V 10, 11, 14

U.S. Const. amend XIV 5, 6,7

OTHER AUTHORITIES

Dix, Mistake, Ignorance,, Expectation of Benefit, \

and the Modern Law of Confessions, 1975 Wash.

U.L.Q. 275 y- 10

Vi

TABLE OF AUTHORITIES—Continued

Dix, Waiver in Criminal Procedure: A Brief for

more Careful Analysis, 55 Tex. L. Rev. 193 (1977

Grano, Voluntariness, Free Wil, and the Law of

Confessions, 65 Va. L. Rev. 859 (1979) cadeeia

McCormick on Evidence, § 153 (E. Cleary 3d ed.

1984)

=

Schulhofer, Confessions and the Court, 79 Mich L.

Rev. 865 (1961) —————___

Tigar, Foreword: Waiver of Constitutional

Rights: Disquiet in the Citadel, 84 Harv. L.

Rev. 1 (1970)

3 J. Wigmore, Evidence § 826(c) (J. Chadbourn,

rev. 1970) .

. 1,8

ee e

STATEMENT OF THE AMICI CURIAE

The amici curiae are officers or organizations of of-

ficers who have law enforcement responsibilities in their

jurisdictions. Having obtained the written consent of the

parties to the case, they file this brief in support of the

petitioner pursuant to Sup. Ct. R. 36.2.

—_ *

Ww

STATEMENT OF THE CASE

On August 18, 1983, Francis Connelly walked up to

a uniformed, off-duty police officer in downtown Denver

and said: ‘‘I . . . murdered someone and I want| |

to turn myself in’’ (J.A. 2-4). The officer initially sus-

pected Connelly was a ‘‘crackpot’’ (J.A. 4), but Connelly’s

dress and demeanor suggested to the officer that he was

neither mentally unstable nor under the influence of drugs

or alcohol (J.A. 5). The officer then gave Connelly

Miranda' warnings and asked if he understood them (J.A.

6). Connelly said he did (J.A. 6) and told the officer

that in late 1982 he had killed a young girl near West

Mississippi Avenue in southwest Denver (J.A. 37).

The officer handeuffed the respondent, searched him

eursorily (J.A. 6), and took him into a nearby newsstand

where he checked Connelly’s driver’s license for identifica-

tion (R., v.2 » 11). The officer then called the Denver

Police Department for information to corroborate the

respondent’s story (R., v. 2, p. 12). A detective told the

officer to keep Connelly there until the detective arrived

(R., v. 2, p. 12).

IMiranda v. Arizona, 384 U.S. 436 (1966).

1

The officer then again told Connelly that he did not

have to talk (J.A. 7). Connelly responded ‘‘that it was all

right, that he would talk to [the officer] because his con-

science had been bothering him. . .”’ (R., v. 2, p. 16).

The officer asked him if he had been drinking or using

drugs (J.A. 7). Connelly said no (J.A. 7). The officer

then asked if he had ever been treated for any mental

disorders (J.A. 7). Connelly said he had been in several

mental hospitals (J.A. 7).

The detective arrived about 15 minutes after the

officer called (R., v. 2, p. 15). He ordered the handcuffs

taken off, placed Connelly in the police car, repeated the

Miranda warnings, and asked him what was on his mind

(J.A. 11-12). Connelly told the detective that he had

returned to Colorado from Boston because he wanted to

confess to the murder of a young Indian girl, Mary Anne

Junta (J.A. 12; R., v. 2, p. 25). The detective drove

Connelly to police headquarters where records revealed

that in April 1983 an unidentified female body had been

discovered in the area Connelly described (J.A. 13-14).

Upon the detective’s request, Connelly repeated to a

police sergeant the story he had told the detective (J.A.

15). Connelly said the murder occurred in southwest

Denver, somewhere near Mississippi Avenue, he thought,

but he was not positive (R., v. 5, p. 27). He ‘‘openly came

out and told [the sergeant and detective] that he would

be glad to show [them] where it happened”’ (R., v. 2, p. 27).

The three men then drove toward southwest Denver

(R., v. 2, p. 27). Connelly directed them to an alley be-

hind some industrial buildings (R., v. 2, p. 29). ‘‘This is

it,’’ Connelly said as they walked up to a storage area

behind the buildings (R., v. 2, p. 30). This was where

he stabbed the girl, covered her with a mattress, and left

her, he said (R., v. 2, p. 31). He said he was frightened

to be there; he appeared ‘‘nervous and cautious’”’ (R.,

v. 2, pp. 30-31).

The district attorney charged Connelly with second

degree murder, Colo. Rev. Stat. 18-3-103(1)(a) (1978) (R.,

v. 1, pp. 1-3). The district court ordered Connelly to

undergo psychiatric examination to determine his com-

petence to proceed (R., v. 1, pp. 46). The prosecutor

and Connelly’s attorney agreed that Connelly should also

be examined to determine whether he ‘‘was competent

at the time he was arrested and talked with Denver police

officers’’ (R., v. 1, pp. 4-6).

In the psychiatrist’s opinion, the confession was mo-

tivated by ‘‘command auditory hallucinations’? (R., v. 1,

pp. 10-17; J.A. 24-26). The psychiatrist reported:

The confession appears to have been the result of

command auditory hallucinations which significantly

impaired Mr. Connelly’s mental ability to make free

and intelligent decisions at the time immediately sur-

rounding his arrest. Therefore, there appears to be

significant doubt regarding Mr. Connelly’s ability to

have made a truly voluntary statement or confession

to the police on August 18, 1983.

The psychiatrist testified: “{A} command [auditory] hailu-

cination is . . . a type of hallucination in which the person ex-

periencing it feels as if they have to act on whatever the voice

is telling them” (J.A. 25). Connelly described the voice he heard

as ““God’s voice” (Jj.A. 19).

4

(R., v. 1, p. 17). He testified, however, that Connelly’s

‘illness did not significantly impair his cognitive abilities’’

(J.A. 25, 34-35).

The district court suppressed all of Connelly’s state-

ments to the police (J.A. 49). Even though the Court

specifically found ‘‘that there was nothing untoward in

what the police did in receiving and recording [Connelly’s]

comments to them’’ (J.A. 43), the court concluded that

all of Connelly’s statements were involuntary because

Connelly ‘‘did not exercise free will in choosing to talk

to the police. ... He was compelled by his illness to

feonfess}’’ (J.A. 47). The court further noted that the

prosecution could not establish by. clear and convincing

evidence that Connelly knowingly, voluntarily, and intel-

ligently waived his Miranda rights (J.A. 48).

On interlocutory appeal,* the Colorado Supreme Court

affirmed the suppression of Connelly’s statements, but

relied on different grounds. People v. Connelly, 702 P.2d

722 (Colo. 1985). Whereas the district court suppressed

all of Connelly’s statements to the police on the ground

that their admission into evidence would violate due proc-

ess, the Colorado Supreme Court suppressed only Con-

3in the course of his examination of Connelly, the psychia-

trist elicited details of the crime as weil as circumstances sur-

rounding the confessions (R., v. 1, pp. 11-17). Connelly told

the psychiatrist that he stabbed the girl with a fishing knife:

“It was confusing [ .. . ] | don’t know it actually happened

... 1 had the knife . . . the voice told me to kill her and | did

... | don’t know how many times | stabbed her. . .” (R., v. 1,

p. 11).

‘Colo. Rev. Stat. § 16-12-102 (1978) affords the prosecu-

tion the right to an interlocutory appeal of “ary decision of the

trial court in a criminal case upon any question of law.” See

Colo. R. App. P. 4.1.

5

nelly’s initial statement as ‘‘involuntary’’; it suppressed

the remainder of Connelly’s statements on the ground

that the prose~ution failed to show by clear and conviné-

ing evidence that Connelly had effectively waived Kis

Miranda rights. People v. Connelly, 702 P.2d at 728-29.

—

——

SUMMARY OF ARGUMENT

Where the police take no action to elicit a suspect’s

confession, the due process clause of the fourteenth amend-

ment has no epplication. The Colorado Supreme Court

suppressed the respondent’s confession as ‘‘involuntary”’

despite the fact that the police took no action to induce it.

The Colorado Supréme Court erred.

The voluntariness of a waiver turns on precisely the

same question at issue in the determination of the ‘‘volun-

tariness’’ of a confession: whether the police improperly

exerted pressure on someone to talk. Where the police

advise a suspect of his Miranda rights and he admittedly

uncerstands them, his waiver of rights is voluntary when -

the police exert no pressure to induce him to talk.

,

—O—

ARGUMENT

1.

THE DUE PROCESS CLAUSE OF THE FOUR-

TEENTH AMENDMENT DOES NOT REQUIRE

SUPPRESSION OF A CONFESSION AS “IN-

VOLUNTARY” ABSENT ANY ACTION BY

THE POLICE TO ELICIT THE CONFESSION.

The fourteenth amendment provides: ‘‘No state shall

. deprive any person of life, liberty or property with-

out due process of law... .’’ U.S. Const. amend XIV,

§1. This clause was “‘ ‘intended to secure the individual

from the arbitrary exercise of powers of government,’ ”’

Hurtado v. Caifornia, 110 U.S. 516, 527 (1884) (quoting

Bank of Columbia v. Okely, 4 Wheat. 235, 244 (1819)).

‘*Historically, this guarantee of due process has been ap-

plied to deliberate decisions of government officials to

deprive a person of life, liberty or property.’’ Daniels v.

Williams, 106 S. Ct. 662, 665 (1986) (emphasis in original).

The Court first applied the due process clause to con-

fessions in state cases in Brown v. Mississippi, 297 U.S.

278 (1936). Because the petitioners’ confessions were ex-

tracted through brutal torture,’ the court had little dif-

ficulty® concluding that the admission of the confessions

into evidence violated due process. Brown, 297 U.S. at

286. As courts considered coerced confession cases with

increasing frequency, they used ‘different terms to ex-

press the test by which to judge the inadmissibility of a

confession, such as ‘forced’, ‘coerced’, ‘involuntary’, ‘ex-

torted’, ‘loss of freedom of will.’’’ Ashcraft v. Tennessee,

322 U.S. 143, 159 (1944) (Jackson, J., dissenting). By

1960, the court described the due process inquiry that

5One petitioner was repeatedly hung from a tree, tied, and

whipped. Brown v. Mississippi, 297 U.S. 278, 281 (1936). Other

wert were whipped with a leather strap with buckles on

it. Id. at 282.

The Court remarked: “It would be difficult to conceive

of methods more revolting to the sense of justice than those

taken to procure the confessions of these petitioners... .”

Brown v. Mississippi, 297 U.S. at 286.

7

originated in Brown by the ‘‘convenient shorthand”’ of

asking whether a confession was ‘‘involuntary.’’ Black-

burn v. Alabama, 361 U.S. 199, 207 (1960) ; accord Miller v.

Fenton, 106 S. Ct. 445, 449 (1985); Schneckloth v. Busta-

monte, 412 U.S. 218, 280-81 & n.7 (1973) (Marshall, J., dis-

senting) (the labels ‘‘voluntary’’ and ‘‘involuntary”’ ‘‘are

shorthand labels for an assessment of the police behavior

in light of the particular characteristics of the individ-

ual’’). The due process foundation of the inquiry, of

course, never varied: the test always required some action

by the government. Compare Brown v. Mississippi, 297

U.S. at 286 (‘The due process clause requires ‘that state

action . . . shall be consistent with the fundamental prin-

ciples of liberty and justice which lie at the base of all

our civil and political institutions’.’’) (emphasis added;

citation omitted) with Miller v. Fenton, 106 S. Ct. at 449

(‘*[ Tactics for eliciting inculpatory statements must fall

within the broad constitutional boundaries imposed by the

Fourteenth Amendment’s guarantee of fundamental fair-

ness.’’) (emphasis added).

The Court has recognized that the due process inquiry

into ‘‘voluntariness’’ reflects a ‘‘complex of values.’

Blackburn v. Alabama, 361 U.S. at 207. At the core of the

*‘complex’’ lies the notion of fundamental fairness. £..,

Brown v. Mississippi, 297 U.S. at 285-86; see 3 J. Wigmore,

Evidence § 826(c) (J. Chadbourn rev. 1970). Because our

legal system is accusatorial, not inquisitorial, confessions

extracted through official coercion may not stand. Rogers

v. Richmond, 365 U.S. 534, 540-41 (1961). Such confessions

offend due process regardless of their reliability. /d.;

Lisenba v. California, 314 U.S. 219, 236 (1941); see Jack-

son v. Denno, 378 U.S. 368 (1964).

8

Whether a confession is ‘‘voluntary’’ or “involun-

tary’’ turns on the totality of circumstances. Mincey v.

Arizona, 437 U.S. 385, 401 n.17 (1978) ; Culombe v. Connec-

ticut, 367 U.S. 568, 606 (1961). There is no ‘‘single litmus-

paper test.’’ Culombe, 367 U.S. at 601. The Court has

considered several factors relevant to the test: some re-

flect personal traits of the accused, but many more reflect

the characteristics of the detention and interrogation. See

3 J. Wigmore, Evidence § 826(c) at 252 n.11 (J. Chadbourn

rev. 1970) (listing more than 29 factors). The Court has

deemed some characteristics of the detention and interro-

gation so offensive that they need not be balanced against

any personal traits of the accused; rather, those character-

istics per se offend due process. See, e.g., Ashcraft v.

Tennessee, 322 U.S. at 154 (36 hour interrogation is ‘‘so

inherently coercive that its very existence is irreconcilable

with the possession of mental freedom by a lone suspect

against whom its full coercive force is brought to bear’’).

On the other hand, the Court has never concluded that

any personal trait of an accused is sufficient to render his

confession ‘‘involuntary.’’ Personal traits are not in

themselves coercive: ‘‘Rather they [are] relevant only in

establishing a setting in which actual coercion might have

been exerted to overcome the wiil of the suspect.’’ Pro-

cunier v. Atchley, 440 U.S. 446, 454 (1971).

In the 50 years since the Court first held that the due

process clause prohibits coerced confessions, the Court

has found due process violated only where there has been

some coercive official conduct.’ There was none here. Un-

7Beecher v. Alabama, 408 U.S. 234 (1972) (confession was

part of stream of events flowing from grossly coercive nature of

(Continued on following page)

9

disputed evidence establishes that the respondent first

spoke without any inducement whatsoever on the part of

(Continued from previous page)

petitioner's arrest); Darwin v. Connecticut, 391 U.S. 346 (1968)

(30 to 48 hour incommunicado detention; refusal to allow peti-

tioner’s attorneys to speak with petitioner); Greenwald v. Wis-

consin, 390 U.S. 519 (1968) (deprivation of medication, sleep,

and food); Brooks v. Florida, 389 U.S. 413 (1967) (14 day in-

communicado detention in a “windowless sweatbox’’; meager

food and water); Beecher .v. Alabama, 389 U.S. 35 (1967) (threats

of violence; interrogation while petitioner was in intense pain

after effect of morphine dissipated); Clewis v. Texas, 386 U.S.

707 (1967) (incommunicado detention and interrogation; depri-

vation of sleep and food); Davis v. North Carolina, 384 U.S. 737

(1966) (16 day incommunicado detention; daily interrogation;

limited provender); Haynes v. Washington, 373 U.S. 503 (1963)

(16 hour incommunicado detention; repeated refusal to allow

petitioner to call his wife); Lynumn v. Illinois, 372 U.S. 528 (1963)

(threats to take away petitioner's children and tc cut off public

assistance); Townsend v. Sain, 372 U.S. 293 (1963) (use of truth

serum; denial of heroin to addict); Gallegos v. Colorado, 370

U.S. 49 (1962) (5 day incommunicado detention); Culombe v.

Connecticut, 367 U.S. 568 (1961) (intimidation; 4 day detention);

Reck v. Pate, 367 U.S. 433 (1961) (8 day incommunicado de-

tention; 6-7 hours of interrogation for 4 days; denial of food);

Rogers v. Richmond, 365 U.S. 534 (1961) (6 hour interrogation

by 3 or more officers; threatened interrogation of petitioner's

wife); Blackburn v. Alabama, 361 U.S. 199 (1960) (8-9 hour in-

terrogation in a small room); Spano v. New York, 360 U.S. 315

(1959) (8 hour interrogation by as many as 15 officers; deceptive

use of petitioner's friend to falsely arouse petitioner’s sympathy) ;

Payne v. Arkansas, 356 U.S. 560 (1958) (3 day incommunicado

detention; threats of mob violence; denial of food); Fikes v.

Alabama, 352 U.S. 191 (1957) (repeated questioning over 5 day

period; incarceration in state prison far from petitioner's home;

segregation from all other prisoners); Leyra v. Denno, 347 U.S.

556 (1954) (lengthy interrogation; deceptive use of psychiatrist

masquerading as general practitioner to treat petitioner's ail-

ment); Gallegos v. Nebraska, 342 U.S. 55 (1951) (25 day detention

before presentment to magistrate); Harris v. South Carolina, 338

U.S. 68 (1949) (5 day incommunicado detention; repeated vio-

lence and interrogai'‘on); Turner v. Pennsylvania, 338 U.S. 62

(1949) (5 day interrogation by relays of officers for 4-6 hours

(Continued on following page)

10

the officer. The respondent had not been detained nor had

he been asked a single question. Absent state action, there

was no due process violation.’

II.

WHERE A SUSPECT IS ADVISED OF HIS

MIRANDA RIGHTS AND ADMITTEDLY UN-

DERSTANDS TUEM, HIS WAIVER OF

RIGHTS IS VOLUNTARY IN THE ABSENCE

OF POLICE ACTION TO INDUCE THE

WAIVER.

The fifth amendment provides: ‘‘No person... shall

be compelled, in any criminal case, to be a witness against

himself ....’’ U.S. Const. amend. V. In Miranda v. Ari-

zona, 384 U.S. 436, 444 (1966), the Court extended the

(Continued from previous page)

per day); Watts v. Indiana, 338 U.S. 49 (1949) (6 day detention;

interrogation by relays of officers); Lee v. Mississippi, 332 U.S.

742 (1948) (threats of violence); Haley v. Ohio, 332 U.S. 596

(1948) (5 hour interrogation by relays of officers; 3 day deten-

tion after confession); Ashcraft v. Tennessee, 327 U.S. 274 (1946)

(36 hour detention); Malinski v. New York, 324 U.S. 407 (1945)

(forced stripping to humiliate and frighten petitioner); Lyons v.

Oklahorna, 322 U.S. 596 (1944) (physical abuse and prolonged

interrogation); Ward v. Texas, 316 U.S. 547 (1942) (nocturnal

removal from county; threats); Vernon v. Alabama, 313 U.S.

547 (1941) (violence); Lomax v. Texas, 313 U.S. 544 (1940) (forced

stripping); Canty v. Alabama, 309 U.S. 629 (1940) (incommuni-

cado detention); Chambers v. Florida, 309 U.S. 227 (1940) (7 day

incommunicado detention); White v. Texas, 309 U.S. 631 (1940)

(7 day incommunicado detention; nightly whippings); Brown v.

Mississippi, 297 U.S. 278 (1936) (repeated whippings).

8Although the due process clause of the fourteenth amend-

ment was not violated, the inquiry whether the confession

should be excluded from evidence as a matter of Colorado evi-

dence law remains for the Colorado courts to determine. See

Lisenba v. California, 314 U.S. 219, 236 (1941); Dix, Mistake,

Ignorance, Expectation of Benefit, and the Modern Law of Con-

fessions, 1975 Wash. U.L.Q. 275, 291-92.

11

fifth amendment privilege to ‘‘custodial interrogation’’:

‘questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived

of his freedom in any significant way’’ See Michigan v.

Tucker, 417 U.S. 433, 442-43 (1974). To protect the privi-

lege the Court imposed procedural safeguards designed to

dispel the compulsion inherent in custodial interrogation.

Miranda, 384 U.S. at 467; North Carolina v. Butler, 441

U.S. 369, 373 (1979). Absent custodial interrogation, no

such procedural protections are required. E.g., Berkemer

v. McCarty, 104 8S. Ct. 3138 (1984). ‘‘Any statement

given freely and voluntarily without any compelling influ-

ence is, of course, admissible in evidence.’’ Miranda, 384

U.S. at 478.

Before the police question a suspect who has been

taken into custody, they must give the suspect Miranda

warnings if his statements are to be admissible into evi-

dence. Miranda, 384 U.S. at 379; Michigan v. Tucker, 417

U.S. at 443. The prosecution must show that a suspect

voluntarily, knowingly, and intelligently waived his rights

in order to introduce his statements against him in court.

Oregon v. Bradshaw, 103 8. Ct. 2830, 2834-35 (1983) ; Ed-

wards v. Arizona, 451 U.S. 477, 482 (1980); Tague v.

Louisiana, 444 U.S. 469, 470 (1980); North Carolina v.

Butler, 441 U.S. 369, 373 (1979) ; Miranda, 384 U.S. at 444.

Miranda recognized that if a statement was made after

lengthy or incommunicado detention, that would be

‘‘strong evidence that the accused did not validly waive

his rights.’’ 384 U.S. at 476. ‘‘Moreover, any evidence

that the accused was threatened, tricked, or cajoled into a

waiver will, of course, show that the defendant did not

voluntarily waive his privilege.’’ Jd.

12

Miranda was less specific about what would constitute

an effective waiver.’ Although an express statement waiv-

ing the rights to silence and to counsel is “strong proof’’

of an effective waiver, North Carolina v. Butler, 441 U.S.

at 373; accord Oregon v. Listad, 105 S. Ct. 1285, 1298

(1985), ultimately such an express statement is neither

necessary nor sufficient. North Carolina v. Butler, 441

U.S. at 373. Not only must the prosecution show that the

waiver was knowing and intelligent, but it must also dem-

onstrate that the waiver was voluntary. Edwards v. Ari-

zona, 451 U.S. at 482. The inquiries are discrete. Moran

v. Burbine, 54 U.S.L.W. 4265 (U.S. March 10, 1986); Ed-

wards v. Arizona, 451 U.S. at 484; McCormick on Evidence,

§ 153 (E. Cleary 3d ed. 1984). &

a

By showing that a suspect (1) \was told of his right to

remain silent and right to counsel, ¥2) understood those

rights, yet (3) intentionally relinquisKed those rights, the

prosecution establishes that the suspec\ knowingly and in-

tentionally waived his Miranda rights. Moran v. Burbine,

54 U.S.L.W. 4265; see Edwards v. Arizona, 451 U.S. at

483-84. By showing that the state exerted no pressures on

a suspect, the prosecution establishes that the suspect vol-

untarily waived his rights. See Moran v. Burbine, 54

U.S.L.W. at 4267 (‘‘The voluntariness of the waiver is not

at issue.... [T]he record is devoid of any suggestion

that police resorted to physical or psychological pressure

to elicit the statements.’’); Michigan v. Mosley 423 U.S.

96, 111 (1975) (White, J., concurring) (‘‘voluntariness’’ is

“An express statement that the individual is willing to make

a statement and does not want an attorney followed closely

by a statement cou/d constitute a waiver.” Miranda, 384 U.S.

at 475 (emphasis added).

the standard by which waiver of previously claimed right

to remain silent by a ‘‘properly informed’’ defendant

should be judged); Dix, Waiver in Criminal Procedure:

A Brief for More Careful Analysis, 55 Tex. L. Rev. 193,

199-201 (1977); Tigar, Foreword: Waiver of Constitu-

tional Rights: Disquiet in the Citadel, 84‘Harv. L. Rev. 1,

25 (1970); cf. Wyrick v. Fields, 459 U.S. 42, 53-54 (1982)

(Marshall, J., dissenting) (‘‘Since the underlying purpos

of the [fifth amendment] privilege . . . is to prevent the

State from cng individual to give evidence against

himself, it makes sense to find a waiver of the privilege

where a suspect’s duct provides assurance that his

statements were mad¢ voluntarily.’’) Each discrete in-

quiry requires a review \f the totality of the circumstances

surrounding the waiver. Ware v. Michael C., 442 U.S. 707,

724-25 (1979); See Johnson v. Zerbst, 304 U.S. 458, 464

(1938). *

The Colorado san suppressed as «a viola-

tion of Miranda all of the statements that the respondent

made after he was first given the warnings.’ Although

the evidence showed that the respondent both understood

and intentionally relinquished his Miranda rights, the Colo-

- rado Supreme Court held.that the prosecution had failed to

prove by clear and convincing evidence that the respondent

\

The Colorado Supreme Court improperly treated as ana-

lytically similar all the statements that the respondent made

after he was first given the Miranda warnings. Yet the first state-

ment Connelly made after being advised of his rights—that in

late 1982 he had killed a young giri—was made when Connelly

was neither in custody, RBerkemer v. McCarty, 104 S.Ct. 3138

(1984), nor being subjected to interrogation, Rhode Island v.

Innis, 446 U.S. 291 (1980). The first\statement Connelly made

= being advised of his rights, therfore, did not violate Mi-

randa.

14

had effectively waived his rights. The Colorado Supreme

Court therefore necessarily concluded that the respondent

had not voluntarily waived his Miranda rights.

The Colorado Supreme Court applied an incorrect

standard to determine the voluntariness of the respond-

ent’s waiver. By narrowly focusing on the respondent’s

subjective volitional capacity, the court not only failed to

take into account the totality of the circumstances, see

Fare v. Michael C., 442 U.S. at 724-25, but it also over-

looked the values that underlie the fifth amendment: pro-

tection of individuals against official coercion. United

States v. Washington, 431 U.S. 181 (1977).

The fourteenth amendment secures against state in-

vasion the same privilege that the fifth amendment guar-

antees against federal infringement: the right to remain

silent ‘‘unless one chooses to speak in the unfettered exer-

cise of his own will.’’ Malloy v. Hogan, 378 US. 1, 8

(1964) ; accord Davis v. North Carolina, 384 U.S. 737, 740

(1966) ; see Grano, Voluntariness, Free Will, and the Law

of Confessions, 65 Va. L. Rev. 859, 926-37 (1979) (arguing

that in the context of custodial interrogation the fifth

amendment privilege duplicates the protection of the due

process test of ‘‘voluntariness’’). The unfettered exercise

of one’s own will refers to the absence of official coercion,

not to any subjective psychological condition. Oregon v. El-

stad, 105 S. Ct. 1285, 1291 (1985) (the fifth amendment is

not “concerned with moral and psychological pressures

emanating from sources other than official coercion.’’)

Just as improper pressure by the police on a suspect ren-

ders a suspect’s confession ‘‘involuntary,’’ in violation of

the due process clause of the fourteenth amendment, so too

does improper pressure by the police on a suspect render a

15

suspect’s waiver involuntary. See generally Schulhofer,

Confessions and the Court, 79 Mich L. Rev. 865, 880 (1981).

The requirement that a waiver be voluntary simply means

that the waiver must not be the product of official over-

reaching. See Moran v. Burbine, 54 U.S.L.W. at 4267

(‘‘Onee it is determined that a suspect’s [knowing and in-

telligent] decision not to rely on his rights was uncoerced,

... the analysis is complete and the waiver is valid as a

matter of law.’’ (emphasis added). Absent some official

coercion, the fifth amendment has no application: ‘‘In-

deed, far from being prohibited by the Constitution, ad-

missions of guilt by wrongdoers, if not coerced, are inher-

ently desirable.’’ United States v. Washington, 431 U.S.

at 181, cited with approval in Oregon v. Elstad, 105 8S. Ct.

at 1291.

Nothing in the record below suggests the police in any

way induced the respondent’s waiver. Accordingly, the

waiver was voluntary.

— '

/_—

CONCLUSION

The decision of the Colorado Supreme Court should

be reversed.

Respectfully submitted,

Duane Wooparp

Attorney General

Cuaries B. Howe

Deputy Attorney General

Ricuarp H. Forman

Solicitor General

Eric PerryMan

Assistant Attorney General

Counsel of Record

1525 Sherman Street, 3d Floor

Denver, Colorado 80203

Telephone: (303) 866-3549