# Amicus Curiae Brief — Colorado v. Connelly > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0462%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1986 - **Citation:** 479 U.S. 157 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0462%3A14. Public record. Not legal advice.