Amicus Curiae Brief — Arizona v. Fulminante

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OCTOBER TERM, 1989

STATE OF ARIZONA, PETITIONER

Vv.

ORESTE C. FULMINANTE

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF ARIZONA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether respondent’s confession was involuntary

because respondent made the statement in response to an

offer by an undercover informant to protect respondent

from other inmates at the prison where respondent and

the informant were incarcerated.

2. Whether the admission of a defendant’s involuntary

confession can ever be harmless error.

(1)

TABLE OF CONTENTS

Interest of the United States .........................................000..

Ne cesseeecaemnasenncocccencnces oi

EEE

Argument:

Il.

Ill.

Respondent’s confession was properly admitted

a Se

A. The Constitution bars the admission of a

defendant’s statements only if coercive gov-

ernment misconduct overbears the defend-

B. Sarivola’s offer to protect respondent’s

safety in exchange for his explanation of

his stepdaughter’s death did not coerce re-

SN MID on... <a. nccnceccesancansenees

The erroneous admission of an involuntary con-

fession should not call for automatic reversal

of a conviction, without regard to whether the

A. Developments in the harmless error doctrine

s.uce Bram have rendered obsolete the rule

of per se reversal set forth in that case...

B. The admission of a defendant’s involuntary

confession is not the type of error that auto-

matically requires a conviction to be re-

a ccsncccncectasncnnncnsens

Stare decisis considerations do not preclude re-

consideration of the rules adopted in Bram........

Teen Te cccnacneseacoccoccocs

Cases:

TABLE OF AUTHORITIES

Alabama y. Smith, 109 S. Ct. 2201 (1989) 000...

Bank of Nova Scotia v. United States, 487 U.S.

re cahieadnniensnneieneercevsacassecececcccceees-

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

(111)

Cases—Continued: Page

Brady v. United States, 397 U.S. 742 (1970)... 10,11

Bram Vv. United States, 168 U.S. 532 (1897)........ 4, 5, 8-9,

17, 22

Brown v. Allen, 344 U.S. 443 (1953) ..................... 18

Brown v. United States, 411 U.S. 223 (1973) ........ 19, 25

Bruton v. United States, 391 U.S. 123 (1968)... 25

Bryant v. Vose, 785 F.2d 364 (1st Cir.), cert.

denied, 477 U.S. 907 (1986) ................................ 26

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393

SUITE <inssdciesseuaspimaichaisnmandenscuneabenamaadiaaalenmadiammiiaasaeed 29

Carella v. California, 109 S. Ct. 2419 (1989) __ 7 19

Chambers V. Florida, 309 U.S. 227 (1940) _.... per 8

Chambers v. Maroney, 399 U.S. 42 (1970)... 19, 28

Chapman V. California, 386 U.S. 18 (1967) 18, 19, 21,27

Clemons Vv. Mississippi, 110 S. Ct. 1441 (1990)... 19

Cole v. Lane, 830 F.2d 104 (7th Cir. 1987), cert.

denied, 484 U.S. 1076 (1988) ............................... 12

Coleman v. Alabama, 399 U.S. 1 (1970) .....000.... 19

Colorado v. Connelly, 479 U.S. 157 (1986)... 7,14

Culombe v. Connecticut, 367 U.S. 568 (1961)... 7

Crane V. Kentucky, 476 U.S. 683 (1986) 0. 19

Cruz v. New York, 481 U.S. 186 (1987) ......... .... 24

Davis v. North Carolina, 384 U.S. 737 (1966) _. 8

Delaware Vv. Van Arsdall, 475 U.S. 673 (1986)... 19, 21

DeShaney Vv. Winnebago County DSS, 109 S. Ct.

SU i aa 16

Fikes Vv. Alabama, 352 U.S. 191 (1957) rye diese 7m 7

Gallegos v. Nebraska, 342 U.S. 55 (1951) 18

Gilbert Vv. California, 388 U.S. 263 (1967) 25

Green V. Seully, 850 F.2d 894 (2d Cir.), cert. de-

mie, SEB UT. BOG CROIB) mac cceckc ccs ccesceccnvcesss 12

Haley v. Ohio, 332 U.S. 596 (1948) Noor 8,18

Harrington v. California, 395 U.S. 250 (1969)... 25

Harryman Vv. Estelle, 616 F.2d 870 (Sth Cir.),

cert. denied, 449 U.S. 860 (1980) 0 26

Haynes Vv. Washington, 375 U.S. 503 (1963). .10, 11, 18

Helvering Vv. Hallock, 309 U.S. 106 (1940) 29

Holloway v. Arkansas, 135 U.S. 475 (1978)... 22, 26

Hopper v. Evans, 456 U.S. 605 (1982) 19

Howard v. Pung, 862 F.2d 1348 (8th Cir. 1988),

cert. denied, 109 S. Ct. 3247 (1989) 26

Cases—Continued : Page

Huahes v. Oklahoma, 441 U.S. 322 (1979) _......... 29

Hutto v. Ross, 429 U.S. 28 (1976) ......................... 1l

Jackson Vv. Denno, 378 U.S. 368 (1964) ................. 18, 27

Jackson Vv. Virginia, 443 U.S. 307 (1979) —....--.-... 22

Jarrell vy. Balkeom, 735 F.2d 1242 (11th Cir.

1981), cert. denied, 471 U.S. 1103 (1985) _...... 12

Kentucky v. Dennison, 65 U.S. (24 How) 66 >

| eT ee eee ary ai OES ae ee SR 29

Kentucky v. Whorton, 441 U.S. 786 (1979)... 19

Kotteakos v. United States, 328 U.S. 750 (1946) ..17, 18, 23

Lego v. Twomey, 404 U.S. 477 (1972) .................. 18

Leyra V. Denno, 547 U.S. 556 (1954) .............. _ 4F-8,10

Limbach v. Hooven & Allison Co., 466 U.S. 3553

(1981)... FECA ETF USOT Nie bet oe Tae Lee, ED sieioee 29

Lynumn V. Illinois, 372 U.S. 528 (1965) 2... 10,18

Lyons Vv. Oklahoma, 322 U.S. 596 (1944) 00... 18

Mabry v. Johnson, 467 U.S. 504 (1984) 000 .. 2 28

Malinski v. New York, 324 U.S. 401 (1945) ........ 18

Malloy v. Hogan, 378 U.S. 1 (1964) .....00..0000 10

Martin Vv. Wainwright, 770 F.2d 918 (1985), modi-

fied, 781 F.2d 185 (11th Cir.), cert. denied, 479

as I a aie 12, 26

McKaskle v. Wiggins, 465 U.S. 168 (1984). ........ 22

Miller v. Fenton, 474 U.S. 104 (1985) 000000... 8, 13, 16, 27

Miller v. Fenton, 796 F.2d 598 (3d Cir.), cert. :

denied, 479 U.S. 989 (1986) ................................. 11, 12

Milton Vv. Wainwright, 407 U.S. 371 (1972) ....7, 19, 25, 28

Mincey vy. Arizona, 457 U.S. 385 (1978) ................ 8

Miranda v. Arizona, 381 U.S. 436 (1966) —......... 8, 15, 24

Moore V. Illinois, 434 U.S. 220 (1977) ................... 19, 25

Oregon V. Elstad, 470 U.S. 298 (1985) ...........00...... 24

Payne V. Arkansas, 356 U.S. 560 (1958) ...... 7, 10, 18, 24

Pope v. Illinois, 481 U.S. 497 (1987) ..................... 19

Puerto Rico Vv. Branstad, 483 U.S. 219 (1987).... 29, 30

Roberts Vv. Russell, 392 U.S. 293 (1968) _.............. 25, 26

Rogers Vv. Richmond, 365 U.S. 534 (1961) 0... 27

Rose Vv. Clari:, A783 U.S. 570 (1986) —..........18, 19, 21, 26

Rushen v. Spain, 464 U.S. 114 (1983) 00. 19

Satterwhite v. Teras, 186 U.S. 249 (1988) _7, 19, 25, 26,

27, 28

VI Vu

Cases—Continued : Page

Cases—Continued : Page ;

United States vy. Long, 852 F.2d 975 (7th Cir.

Schneble v. Florida, 405 U.S. 427 (1972) -............ 25 OE TOR Ae 2 OF Ot Noss 12, 13, 14

Schneckloth v. Bustamonte, 412 U.S. 218 (1978)... 7 United States v. Miller, 471 U.S. 130 (1985)... 29

Shotw ell Mfq. Co. v. United States, 371 U.S. 341 lnited States vy. Pomares, 199 F.2d 1220 (2d

(1963) .....----e-oeecseeeneseeeeneseeceneceneceneeneeneeenteneeancnnneenes 10 Cir.), cert. denied, 419 U.S. 1082 (1974)... 12-18

Smith v. Phillips, 455 U.S. 209 (1982) o.ncceenceeenne 28 United States v. Ramirez, 710 F.2d 535 (9th Cir.

Snyder Vv. Massachusetts, 291 U.S. 97 (1934) _...... 18 i ee eee 26

Spano v. New York, 360 U.S, 315 (1959) -......_... 18 United States Vv. Robinson, 698 F.2d 448 (D.C.

Stein v. New York, 346 U.S. 156 (1953)... 8, 10 ne a 12

Streetman v. Lynaugh, 812 F.2d 950 (5th Cir. United States vy. Salvveci, M18 U. 83 (1980). 29

L987) -.......-----ceeeeceerersvesensecnsceescsstnscncnnenseeennenennenensenee 12 United States v. Shears, 762 F. “A 297 (Ath Cir.

Strickland v. Washington, 466 U.S. 668 (1984) .... 22 NS ee a i 12

Stroble v. California, 343 U.S. 181 (1952) ............. 18, 24 T’nited States v. Valenz sate. Pernal, 458 U.S. 858

Tippitt v. Locichart, 859 F.2d 595 (8th Cir. 1988), SC Neate Niet eit 8 99S een fy 29

cert. denied, 109 S. Ct. 2452 (1989) .................... 11-12 United States v. Wade, 388 U.S. 218 (1967). 25

Tyler Pipe Indus., Inc. v. Washington State Dep't Vasquez Vv. Hillery, (74 U.S. 254 (1986) ae 21, 27, 29

of Revenue, 483 U.S. 282 (1987)... 29 Waller v. Georgia, 467 U.S. 39 (1984)... pak ae 22

United States v. Bagley, 473 U.S. 667 (1985) _...... 22 Weatherford v. Bursey, 129 U.S. 545 (1977)... = 22

United States v. Baldacchino, 762 F.2d 170 (1st Young v. Vuitton et Fils S.A., 481 U.S. 787

BF TI ncanssenisrnstnicntenetersninectntanesiiciibtinniianinsinnenieneetectidivne 12 ont eee rr ene en ee 21

United States vy. Ballard, 586 F.2d 1060 (5th Cir.

ERR ea eecie ee Bee tN De De 12 Constitution, statutes, and rules:

United States v. Bayer, 331 U.S. 532 (1947) -....... 24 U.S. Const. :

United States v. Curtis, 562 F.2d 1153 (9th Cir. eel OO st

1977), cert. denied, 439 U.S. 910 (1978) Jomiemnnees 12 Amend. V . PA Rh ahs 7, 25, 27

United States v. Fera, 616 F.2d 590 (1st Cir.), en Menunen Stones 19

cert. denied, 446 U.S. 969 (1980) 0.000020... 12 Cstitt Sastanieeiien ie 19

United States v. Ferrara, 377 F.2d 16 (2d Cir.), : ol ee

cert. denied, 389 U.S. 908 (1967) .......ccccccse 12, 13 Amend. VI ..........----csseseessseeceeeesseeeecseneeeeenee 7, 25, 27, 28

United States v. Frazier, 434 F.2d 994 (5th Cir. Confrontation Clause 000... 19

SETHE Mr e eas te On OP SL TO ae 13 RI II sincivcrnicsvenseenatsamosrpicnepininnnns a 19

United States v. Garot, 801 F.2d 1241 (10th Cir 28 U.S.C. 2111 ........ saalibbsstadebeetaek ended ritaiconas 18

SII -ccsss-ssecte ssetencs-ubiputennssbesioinliadaeiduiladticdeiiinhsdiaaibbtsanipacininiints 12 Be ee 1S Re eemennennecennoe Jeibamiiadthasaiiies r- 18

United States v. Guarno, 819 F.2d 28 (2d Cir Fed. R. Evid. 401 esas al STEEN SP Bsn Be thn, Both lc 23

ITTY” cshousssdioscntanicchaeapaanieiebetisbsnsiaiiasebanidaniia Miataaniinicadiepaians 12

United States v. Guerrero, 847 F.2d 1363 (9th Miscellaneous :

le aR etal ae MRa A MARES, nate Near aan omc Tee er 12 E. Cieary, McCormick on Evidence (3d ed. 1984).. 23

United States vy. Hasting, 461 U.S. 499 (1983) 19, 28 Grano, Volvntariness, Free Will, and the Law of

United States v. Johnson, 816 F.2d 918 (3d Cir. Confessions, 65 Va. L. Rev. 859 (1979) 0... _ 13,17

a 26 Notes of Advisory Committee on Proposed Rules,

nited States v. Leon, 468 U.S. 897 (1984) ........... 29 Be Ses Me RE OT Y nsichiinccgcicectepusnncdenanaiiibonnes 23

VIII

Miscellaneous—Continued : Page

> Russell on Crimes (6th ed. 1896) 0. 9

R. Traynor, The Riddle of Harmless Error

RR ot a ra A aon ne RE SB Tea RACES re oo EAR 17

1A J. Wigmore, Evidence (P. Tillers rev. ed.

NE cca, Rate Ree Se ee ee ee nee =F 23

In the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-839

STATE OF ARIZONA, PETITIONER

ORESTE C. FULMINANTE

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF ARIZONA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The use of an informant to obtain information from a

suspect is a valuable law enforcement tool, even when the

suspect is incarcerated. Federal informants frequently

obtain statements from inmates that are used in prosecu-

tions of those inmates for crimes committed while they

were in prison or earlier. The United States also pros-

ecutes cases referred from state or local authorities in

which confessions were obtained from incarcerated sus-

pects. The Court’s resolution of the first question in this

case will affect the circumstances under which the federal

government may use this law enforcement tool.

The United States also has an interest in the Court’s

interpretation of the harmless error doctrine. Questions

of harmless error arise constantly in federal criminal

cases, and the Court’s resolution of the second question

in this case will affect the role of the harmless error doc-

trine with respect to an entire class of errors—those

(1)

involving the admission of defendants’ statements that

are subsequently held to be involuntary.

STATEMENT

1. On September 14, 1982, respondent telephoned the

Mesa, Arizona, Police Department to report the disap-

pearance of his 11-year-old stepdaughter, Jeneane Hunt.

Jeneane’s body was discovered in the desert two days

later. She had been shot in the head at close range with

a large-caliber weapon. She also had a ligature tied

around her neck that could have been used to choke her.

Pet. App. A6-A7.

Because of inconsistencies in respondent’s statements

to the police and his recent purchase of an interchange-

able barrel for a .357 revolver, respondent became a sus-

pect in the murder investigation. No charges were filed,

however, and respondent left the State. He was later

convicted of the federal crime of possession of a firearm

by a felon and was incarcerated in the federal correc-

tional facility at Ray Brook, New York. While at the

Ray Brook facility, respondent befriended Anthony Sari-

vola, 2 former associate of the Columbo organized crime

family who was serving a 60-day sentence for extortion.

Unbeknownst to respondent, Sarivola had become an in-

formant for the Federal Bureau of Investigation, but he

continued to pose as an active member of organized crime

while in prison. J.A. 134-137; Pet. App. A8-A10.

After hearing a rumor that respondent was suspected

of murdering a child in Arizora, Sarivola spoke with re-

spondent about the rumor. Respondent denied commit-

ting the murder. Sarivola told his FBI contact about the

rumor, and the agent told Sarivola to learn more about

it. J.A. 80-82.

One evening, while Sarivola and respondent were tak-

ing a walk in the prison yard, Sarivola spoke with re-

spondent, who was “starting to get some rough treatment

and whatnot from the guys” concerning the rumor. J.A.

83. Sarivola offered to protect respondent from the other

inmates, but he told respondent, “ ‘You have to tell me

about it,’ you know. I mean, in other words, ‘For me

to give you any help.’” Jbid. Respondent then admitted

to Sarivola that he had sexually assaulted and choked

Jeneane, that he had forced her to beg for her life, and

that he had killed her. J.A. 83-85, 138, 147-148; Pet.

App. A10.

Sarivola was released from prison in November 1983;

respondent was released six months later. Upon respond-

ent’s release, Sarivola and his fiancee, Donna, met re-

spondent at a bus terminal. Donna asked respondent if

he wanted to see any relatives or friends. Respondent

said that he could not return to his home since he had

killed “a little girl” in Arizona. Respondent added that

he had first sexually assaulted and choked his victim, and

had forced her to beg for her life. J.A. 166-169, 177-178;

Pet. App. A10-A11.

2. Before trial, respondent moved to suppress his

statements. In order to avoid having to testify at an

evidentiary hearing, respondent adopted the statement of

facts contained in the State’s opposition to his suppres-

sion motion. J.A. 30-31.' The trial court denied the mo-

1 The State described the facts as follows:

It is a fact that Anthony Sarivola was at all times pertinent to

this case a paid confidential informant for the F.B.I. He was an

informant in matters that related to organized crime in the

Brooklyn, New York City area. It is also true that while incar-

cerated in Raybrook Prison in upstate New York various

rumors reached Mr. Sarivola that [respondent] had killed his

step-daughter in Arizona.

Initially these were rumors and initially the truth of the

rumors was denied by [respondent]. It is also true that Mr.

Sarivola passed the rumors on to the F.B.I. Upon being in-

formed of those rumors, the F.B.I. agent, Mr. Walter Ticano,

supposedly said “. . . that’s just a rumor, you'll have to find out

more about it... before I can act upon it,” or words to that

effect. The witness, Anthony Sarivola, went back to [respond-

ent] and asked him if these rumors were in fact true, adding

that he, Mr. Sarivola, might be in a position to help protect

[respondent! from physical recriminations in prison, but that

[respondent] must tell him the truth. Thereupon [respondent]

told Mr. Sarivola that he, in fact, had killed his step-daughter

in Arizona, and gave him substantial details about how he

killed the child. At no time did [respondent] indicate that

tion to suppress, stating that “[t]he Court does not find

that the statements allegedly made in this case were the

result of promises, threats or coercion by the Government

or any of its agents.” J.A. 44. Both statements were

admitted at trial.

8. The Arizona Supreme Court initially affirmed re-

spondent’s conviction, although it held that respondent’s

confession to Anthony Sarivola should not have been ad-

mitted. Pet. App. Al-A95. Based in part on this Court’s

opinion in Bram v. United States, 168 U.S. 532, 545

(1897), the court adopted the rule that a confession is

involuntary if it was “obtained by ‘any direct or implied

promises, however slight, [or] by the exertion of any

improper influence.’"’ Pet. App. A23. Applying that

principle, the court held that respondent’s statement to

Sarivola was involuntary since it was given in response

to Sarivola’s promise of protection. /d. at A21 n.1, A22-

A24. Nonetheless, the court held that the admission of

the statement to Anthony Sarivola was harmless beyond

a reasonable doubt. /d. at A24-A30. The court reasoned

that respondent’s subsequent statement to Sarivola’s fi-

ancee was not the “fruit of the poisonous tree” and was

admissible, id. at A24-A25, that “the invalid first con-

fession was cumulative of the admissible second confes-

sion,” id, at A29-A30, and that “due to the overwhelming

evidence adduced from the second confession, if there had

not been a first confession, the jury would still have had

the same basic evidence to convict | respondent], id. at

A380.

4. Respondent moved for reconsideration, and the court

granted his motion. Pet. App. Bl. In a supplemental

opinion, the court held, over one dissent, that under this

Court’s precedents, the admission of a defendant’s invol-

untary confession cannot be harmless. /d. at C4-C10.

he was in fear of other inmates), nor did h ever seek Mr.

Sarivola’s “protection”.

J.A. 10. Respondent conceded on appeal that these were the “perti-

nent facts” in light of his stipulation in the trial court. Appellant's

Opening Br. 3.

Therefore, the court held, “until and unless the Supreme

Court changes the law, we must order [respondent] re-

tried without the use of the coerced confession.” Jd. at

C10.

SUMMARY OF ARGUMENT

In reversing respondent’s conviction, the Arizona Su-

preme Court relied on two propositions adopted by this

Court in Bram v. United States, 168 U.S. 532 (1897):

first, a confession is involuntary if it is the product of

any governmental inducement, even a slight one, made to

a suspect to encourage him to confess; second, the admis-

sion of a defendant’s involuntary confession requires a

reversal of his conviction in every case. The first prop-

osition, however, is no longer an accurate statement of

the law. This Court’s subsequent decisions have not ap-

plied such a per se rule. Instead, the Court has held that

the totality of the circumstances must be considered in

deciding whether a suspect’s confession is involuntary.

The second proposition, while never reconsidered by this

Court, is no longer valid in light of subsequent develop-

ments in the harmless error doctrine.

1. A suspect’s confession is considered involuntary if,

due to coercive government misconduct, his free will has

been overborne. In cases not involving violence or the

threat of violence, a confession is deemed voluntary un-

less the police conduct is considered unacceptably coercive

under all the circumstances. Most courts have declined

to read Bram literally and have rejected the per se rule

under which a confession is considered involuntary if it

is the product of any governmental inducement, no mat-

ter how slight.

When a confession is made in response to an induce-

ment, as opposed to some form of coercion, there is sel-

dom any danger that the confession will be unreliable.

Furthermore, inducements ordinarily cannot be said to

deprive the suspect of his freedom to decide whether to

confess. Suspects are typically capable of rationally

weighing the advantages and disadvantages of offers of

leniency made in exchange for confessions. Moreover,

except in the most extreme cases, offering an inducement

in exchange for a confession and cooperation by the sus-

pect is not regarded as unconscionable government con-

duct. For these reasons, the Court should hold that the

per se rule in Bram barring confessions based on any

inducement at all is no longer good law.

Under the proper standard, respondent’s confession

was plainly voluntary. He spoke to Sarivola, with whom

he was on friendly terms, during a casual conversation

while they were taking an evening walk. Sarivola did

not use or threaten violence against respondent. In fact,

Sarivola offered to use his influence to protect respondent

from others. Moreover, Sarivola did not concoct the

rumors of respondent’s involvement in the murder of a

child in order to induce respondent to confess to the

murder. Respondent was therefore not “compelled” to

admit his guilt in any sense that the law recognizes.

2. Bram adopted a rule of automatic reversal during a

time when any trial error required reversal of a defend-

ant’s conviction. Since then, Congress and every State

have adopted harmless error laws, and the Court has re-

peatedly held that constitutional errors can be harmless

in a proper case. The rationale of Bram is also no longer

valid. Although Bram saw a “contradiction” in the as-

sertion that evidence can be both “probative” and “harm-

less,” there is no such contradiction under modern prin-

ciples of appellate review. An appellate court’s ruling

that the erroneous admission of evidence was harmless

means only that its admission did not have a material

effect on the verdict, not that the evidence had no pro-

bative force and was therefore irrelevant.

The erroneous admission of a defendant’s confession

also shares none of the attributes of the errors that the

Court has deemed prejudicial per se. The improper ad-

mission of evidence does not affect the composition of the

record; it therefore does not require an appellate court

to make a difficult inquiry concerning what might have

happened if the proceedings had taken a very different

course. Moreover, the Court has held that the admission

of a defendant’s statements obtained in violation of the

Sixth Amendment can be harmless, Satterwhite v. Texas,

486 U.S. 249 (1988); Milton v. Wainwright, 407 US.

371 (1972), and the lower courts have uniformly ruled

that the admission of a defendant’s statements obtained

in violation of Miranda also can be harmless. The error

here is not materially different from the errors in those

cases. Finally, there is no reason to adopt a rule of auto-

matic reversal simply because the violation is the product

of government misconduct. This Court has declined to

adopt that rule for Fourth and Sixth Amendment viola-

tions, even though violations of those rights also involve

government misconduct, and even though the need to

deter those violations is just as great as in the case of

violations of the Fifth Amendment.

ARGUMENT

I. RESPONDENT’S CONFESSION WAS PROPERLY

ADMITTED AT TRIAL

A. The Constitution Bars The Admission Of A Defend-

ant’s Statements Only If Coercive Government Mis-

conduct Overbears The Defendant’s Free Will

1. A suspect’s confession is involuntary if, due to coer-

cive government misconduct, his “will has been overborne

and his capacity for self-determination critically im-

paired.” Schneckloth v. Bustamonte, 412 U.S. 218, 225

(1973) (quoting Culombe v. Connecticut, 367 U.S. 568,

602 (1961) ‘opinion of Frankfurter, J.)); Colorado v.

Connelly, 479 U.S. 157, 163-167 (1986). In making that

determination, courts must assess “the totality of all the

surrounding circumstances—both the characteristics of

the accused and the details of the interrogation.” Schneck-

loth, 412 U.S. at 226. The relevant characteristics of the

suspect are ones that affect his vulnerability to pressure,

such as his age, intelligence, education, criminal experi-

ence, and physical condition.” The relevant details of the

“See, e.g., Payne vy. Arkansas, 256 U.S. 560, 567 (1958): Fikes

Vv. Alabama, 352 U.S. 191, 196 (1957); Leyra v. Denno, 347 U.S. 556,

interrogation relate to the government’s conduct and the

conditions under which the suspect was questioned, in-

cluding the site and length of interrogation or detention,

whether counsel was made available, and whether the

suspect was advised of his constitutional rights.’

Some police conduct, such as extraction of a confession

through “beatings and other forms of physical and psy-

chological torture,” is so “inherently coercive” that it

precludes a voluntary confession regardless of the cir-

cumstances. Miller v. Fenton, 474 U.S. 104, 109, 110

(1985): Stein v. New York, 346 U.S. 156, 182 (1953).

Other interrogation techniques are considered improper

only if, “in the particular circumstances of the case, the

confession is unlikely to have been the product of a free

and rational will.” Miller v. Fenton, 474 U.S. at 110.

2. The Arizona Supreme Court recited the “totality

of the circumstances” test, Pet. App. A20, but did not

apply it. Instead, it held that respondent’s statements to

Anthony Sarivola were involuntary because respondent

uttered those statements in response to Sarivola’s offer

of protection. In so ruling, the court relied on a passage

from Bram vy. United States, 168 U.S. 532, 542-543

(1897), in which this Court wrote that a statement is

involuntary if it is obtained by “any direct or implied

promises, however slight, [or] by the exertion of any im-

proper influence.” The Arizona court’s analysis is wrong

because the language from Bram on which it was based

is no longer an accurate statement of the law.

a. In Bram, the defendant, a sailor, was arrested and

jailed in Halifax, Nova Scotia, for a murder committed

on the high seas. He was brought to the office of a police

detective, where, alone with the detective and stripped of

his clothing, he was interrogated. 168 U.S. at 534-536,

559 (1954); Stein v. New York, 346 U.S. 156, 185 (1953); Haley

V. Ohio, 332 U.S. 596, 599-601 (1948).

3 See, e.g., Mincey v. Arizona, 437 U.S. 3285, 398 (1978); Davis v.

North Corolina, 384 U.S. 737, 740-741 (1966); Miranda yv. Arizona,

384 U.S. 436. 469 (1966); Chambers y. Florida, 309 U.S. 227, 239-

240 (1940).

]

561-562. During questioning, the detective told Bram

that another sailor had reported that, from his position

at the wheel of the vessel, he saw Bram commit the mur-

der. Bram responded: “{Hje could not see me from

there.” Jd. at 539, 562. The detectiv@ also advised Bram

that “{i]f you had an accomplice, you should say so, and

not have the blame of this horrible crime on your own

shoulders.” Jd. at 539. Bram then said that the other

sailor was the murderer. [hid.

This Court held that Bram’s first inculpatory state-

ment was involuntary. 168 U.S. at 562-564. In so rul-

ing, the Court considered the totality of the circumstances,

stating: “Although these facts may not, when isolated

each from the other, be sufficient to warrant the infer-

ence that an influence compelling a statement had been

exerted, yet when taken as a whole, in conjunction with

the nature of the communication made, they give room

to the strongest inference that the statements of Bram

were not made by one who in law could be considered a

free agent.” Jd. at 563-564. The Court then concluded

that the detective’s remark that Bram should identify

his accomplice and not shoulder the entire blame for the

murder “imported a suggestion of some benefit as to the

crime and its punishment as arising from making a state-

ment.” Jd. at 564-565. The Court held that this sugges-

tion automatically rendered the statement involuntary.

In reaching that conclusion, the Court relied on and

quoted from a contemporary criminal law treatise: “a

confession, in order to be admissible, must be free and

voluntary: that is, it must not be extracted by any sort

of threats or violence, nor obtained by any direct or im-

plied promises, however slight, nor by the exertion of any

improper influence.” 168 U.S. at 542-543 (quoting 3

Russell on Crimes 478 (6th ed. 1896) ).

Taken literally, the quoted passage from Bram would

bar any confession resulting from any promise or induce-

ment by government officials, regardless of the nature of

the inducement or a defendant’s ability to resist it. A

literal reading of that passage is at odds with numerous

later decisions by this Court using a_totality-of-the-

circumstances approach and abjuring hard-and-fast rules

of involuntariness where the fact or threat of violence is

not present. To be sure, the Court has occasionally

quoted the passage in Bram with approval.‘ But when

confronted with confessions obtained as a result of gov-

ernment threats or promises, the Court has not applied

the strict rule in Bram, but instead has applied the

totality-of-the-circumstances test.” The Court’s two most

recent decisions citing the passage from Bram show that

the Court no longer adheres to the test suggested by that

passage.

In Brady v. United States, 397 U.S. 742 (1970), the

Court rejected the claim that a defendant’s guilty plea

to kidnapping, made with the advice of counsel, was in-

voluntary because the defendant entered the plea in order

to avoid the possibility of the death penalty, which was

later held unconstitutional. 397 U.S. at 749-755. The

Court held that Bram did not require a contrary result.

Id. at 753-755. The Court described Bram as dealing

with ‘‘a confession given by a defendant in custody, alone

and unrepresented by counsel,” id. at 754, and read Bram

to hold only that “{i]n such circumstances, even a mild

promise of leniency was sufficient to bar the confession,

not because the promise was an illegal act as such, but

because defendants at such times are too sensitive to in-

ducement and the possible impact on them too great to ig-

nore and too difficult to assess.”” Jbid. (emphasis added).

The Court read Bram not to foreclose the possibility that

* See, e.g., Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347

(1963); Malloy v. Hogan, 378 U.S. 1, 7 (1964).

° See Haynes V. Washington, 373 U.S. 503, 513-514 (1963) (threat

of continued incommunicado detention and promise of communica-

tion with and access to family); Lynumn v. Illinois, 372 U.S. 528,

531, 534 (1963) (promise of leniency and threat that defendant's

children would be taken from her); Payne vy. Arkansas, 356 U.S. at

567 (threat to admit lynch mob into jail); Leyra v. Denno, 347 U.S.

at 560-561 (promise of leniency); Stein v. New York, 346 U.S. at

167, 184-186 (promises that defendant’s father would be released and

that his brother would not be prosecuted)

the coercive impact of a promise of leniency could be

“dissipated by the presence and advice of counsel.” Jbid.

Thus, far from viewing Bram as establishing a flat rule

excluding all confessions resulting from government

promises or inducements, Brady read Bram as turning on

the conduct of the police in creating pressure and the

suspect’s capacity to resist that pressure under the par-

ticular facts of that case.

In Hutto v. Ross, 429 U.S. 28 (1976), the defendant

claimed that his confession was involuntary on the

ground that he would not have made it but for his plea

bargain, from which he subsequently withdrew. The

Court rejected that claim because the plea bargain did

not require the defendant to confess. 429 U.S. at 30.

Despite the broad language of the Bram rule, which the

Court quoted, the Court in Hutto stated that “causation

in {the “but-for”| sense has never been the test of vol-

untariness.” bid. Hutto thus stands for the principle

that “it does not matter that the accused confessed be-

cause of [a] promise, so long as the promise did not over-

bear his will.” Miller v. Fenton, 796 F.2d 598, 608 (34

Cir.), cert. denied, 479 U.S. 989 (1986).°

Mindful of this Court’s decisions, the federal courts of

appeals also have not read Bram literally, since doing

so “would be in conflict with the well-established rule

that the totality of the circumstances must be considered

in determining whether the confession is the result of

overbearing by the police authorities.” Tippitt v. Lock-

hart, 859 F.2d 595, 597 (8th Cir. 1988), cert. denied, 109

® As the Third Circuit noted in Miller, while Brady and Hutto

quoted the passage from Bram, those cases did not interpret it “as

a per se proscription against promises made during interrogation.”

Instead, the Court has interpreted “the words ‘obtained by .

promises’ in the Bram test * * * to mean ‘obtained because the

suspect’s will overborne by .. . promises.’” 796 F.2d at 608. Under

that interpretation, “promises do not trigger an analysis different

from the totality of the circumstances test.” /bid. See also Haynes

Vv. Washington, 373 U.S. at 513 (after citing Bram, Court stated,

“of course, whether the confession was obtained by coercion or

improper inducement can be determined oniy by an examination of

all of the attendant circumstances.”

S. Ct. 2452 (1989). Some courts, in cases involving con-

fessions obtained as a result of government promises,

have explicitly held that Bram did not impose a per se

rule.” Other courts, after citing Bram, have applied a

totality-of-the-cireumstances test, or have indicated that

a confession is not necessarily coerced because it was

made in response to a government promise.* In essence,

the circuits have concluded that “a review of the totality

of the circumstances is still required and any inducement

offered to the defendant is but one fact, albeit an impor-

tant one, in that analysis.” United States v. Long, 852

F.2d 975, 977 (7th Cir. 1988); see Tippitt, 859 F.2d at

597 (“a promise is merely one of the circumstances to

determine whether the statement was freely and volun-

tarily given’). Using that test, the courts of appeals

have routinely upheld confessions made in response to

various inducements, such as a promise to bring the sus-

pect’s cooperation to the prosecutor’s attention or to re-

lease the suspect on bail.’

7E.y., Tippitt, 859 F.2d at 597; United States v. Long, 852 F.2d

975, 977 (7th Cir. 1988); Green v. Scully, 850 F.2d 894, 901 (2d

Cir.), cert. denied, 488 U.S. 945 (1988); United States v. Guerrero,

847 F.2d 1363, 1366-1367 (9th Cir. 1988); United States v. Garot,

801 F.2d 1241, 1245 (10th Cir. 1986); Miller, 796 F.2d at 608:

United States v. Ferrara, 377 F.2d 16, 17 (2d Cir.), cert. denied, 389

U.S. 908 (1967).

8 Streetman Vv. Lynaugh, 812 F.2d 950, 957 (5th Cir. 1987);

Jarrell vy. Balkcom, 735 F.2d 1242, 1250 (11th Cir. 1984), cert.

denied, 471 U.S. 1103 (1985); U nited States v. Robinson, 698 F.2d

448, 455 (D.C. Cir. 1983). See Miller v. Fenton, 796 F.2d at 609 n.10.

°E.q., Tippitt, supra; Long, supra; Green, supra; Guerrero, 847

F.2d at 1366; Cole v. Lane, 830 F.2d 104 (7th Cir. 1987), cert.

denied, 484 U.S. 1076 (1988); United States v. Guarno, 819 F.2d

28, 30-31 (2d Cir. 1987); Garot, 801 F.2d at 1243-1246; Miller,

supra; Martin, 770 F.2d at 924-928; United States Vv. Shears, 762

F.2d 297, 400-403 (4th Cir. 1985); United States v. Baldacchino,

762 F.2d 170, 179 (ist Cir. 1985); Robinson, 698 F.2d at 455,

United States v. Feva, 616 F.2d 590, 594 (1st Cir.), cert. denied, 446

U.S. 969 (1986); United States v. Ballard, 586 F.2d 1060, 1063 (Sth

Cir. 1978): United States v. Curtis, 562 F.2d 1153, 1154 (9th Cir.

1977), cert. denied, 439 U.S. 910 (1978) ; United States Vv. Pomares,

b. The decisions cited above make it clear that under

modern confession law, a promise of benefits in exchange

for a confession is not ordinarily considered sufficient to

overbear the free will of a criminal suspect. Instead, the

courts have held that a suspect may often be perfectly

capable of rationally and freely weighing the advantages

and disadvantages of accepting such an offer, and that

there is no impediment to admitting the confession under

those circumstances.

In addition to not interfering with the exercise of free

will, inducements also do not ordinarily run afoul of the

other policies underlying the principle of voluntariness—

ensuring that confessions are reliable and avoiding re-

liance on evidence produced by unconscionable means.

See Grano, Voluntariness, Free Will, and the Law of

Confessions, 65 Va. L. Rev. 859, 909-924 (1979). Except

in the most extreme cases, inducements offered in ex-

change for confessions are not regarded as outrageous

government conduct. And, unlike threats of physical vio-

lence, inducements are seldom so attractive that a suspect

will falsely incriminate himself in order to obtain the

promised benefit.

A literal reading of Bram would ignore the fact that

some governmental inducements, far from being “so offen-

sive to a civilized system of justice that they must be

condemned,” Miller v. Fenton, 474 U.S. at 109, work to

a suspect’s advantage. A suspect who reasonably (and

correctly) believes that he is likely to be convicted even

without his confession can make a rational, even wise,

decision to cooperate with the government in exchange

for a benefit, such as leniency in charging or sentencing.

For the government, confessions provide certainty, re-

duce the commitment of investigative and prosecutorial

499 F.2d 1220, 1222 | 24 “ert. denied, 419 U.S. 1032 (1974);

United States Vv. Frazier, 4 24 994, 995-996 (5th Cir. 1970):

Ferrara, 377 F.2d at 17. As Judge Easterbrook commented in his

concurring opinion in Lony, 852 F 2d at 980, “Bram has not ex-

cluded a confession in decades: it is a derelict, offering false hope to

suspects and vexing judges who must distinguish it on the way to

decisions reached on other grounds.”

resources, and often lead to cooperation by the defendant

in making other cases. Such a mutually beneficial “ex-

change of leniency for information, a common trade in

the criminal justice system, is a good thing.” Long, 852

F.2d at 980 (Easterbrook, J., concurring).

Although most courts have declined to follow the cited

passage from Bram according to its terms, the Arizona

Supreme Court’s reliance on that passage in this case

shows that it can still mislead courts faced with the task

of assessing the voluntariness of a confession. This

Court should make clear that the literal ‘“‘no inducement”

rule stated in Bram has long since lost whatever force it

may have had, and that in deciding whether a statement

made in response to governmental inducement is admis-

sible, courts should not apply a per se rule of inadmis-

sibility.

B. Sarivola’s Offer To Protect Respondent’s Safety In

Exchange For His Explanation Of His Stepdaugh-

ter’s Death Did Not Coerce Respondent’s Confession

This is not a case in which the government’s conduct

was so inherently coercive that it necessarily rendered

any confession involuntary.'® Respondent spoke to Sari-

vola, with whom he was on friendly terms, during a

casual conversation while the two men were taking an

evening stroll around the prison track. Sarivola did not

summon respondent or interrogate him, their conversa-

tion was not lengthy, and respondent was at all times

1 Actions of a private party cannot violate due process and

render a defendant’s statements involuntary. Connelly, 479 U.S. at

166. The court below treated Sarivola as a government agent, and

the petition does not take issue with that ruling. We thus do not

address that question in this case. We do note, however, that in

many cases an informant will be held on a loose tether and it would

be unreasonable to attribute all of his actions to the government.

In this case, the FBI agent did not tell Sarivola to threaten or ques-

tion respondent, nor did the agent direct Sarivola’s efforts to learn

whether the rumor was true. Moreover, Sarivola was not being paid

for his services when he questioned respondent about Jeneane’s

murder on the night at issue. J.A. 78-79, 81-82, 87-88, 108-109.

free to leave Sarivola’s company. Nothing in the ex-

change between Sarivola and respondent remotely re-

sembled the interrogation of a suspect in a_ police-

dominated, custodial environment that could generate

“inherently compelling pressures which work to under-

mine the individual’s will to resist and to compel him to

speak where he would not otherwise do so freely.”

Miranda v. Arizona, 384 U.S. 436, 467 (1966). As far

as respondent was concerned, when he confessed to Sari-

vola he was merely confiding to a friend in private un-

der circumstances in which he rationally concluded that

it was in his interest to do so."

Sarivola did not use or threaten violence against re-

spondent. On the contrary, Sarivola offered to use his.

influence as an associate of the Columbo organized crime

family to protect respondent from harm by other in-

mates. There is no suggestion that the rumors about re-

spondent’s involvement in the murder or the hints of

danger to respondent from other inmates were creations

of Sarivola’s, concocted in order to induce respondent to

confess to the murder. There is also no evidence that

respondent was explicitly threatened by other inmates.

To be sure, Sarivola said that respondent was “starting

to get some rough treatment and whatnot from the guys”

because of the rumor. J.A. 83. Sarivola also said that

an inmate who was “known” to have murdered a child

or who had “admitted” doing so would be “ostracized

and possibly in danger from the general population.”

J.A. 110; 12/11/85 Tr. 63. But respondent was in no

immediate danger from other inmates when he spoke

with Sarivola, and nothing in the record suggests that

Tn our amicus brief in Jllinois v. Perkins, No. 88-1972 (argued

Feb. 20, 1990) (a copy of which has been provided to the parties),

we argued that a meeting between an undercover officer and a

prisoner in a normal prison setting bears none of the hallmarks of

a coercive environment. There is no significant difference for pur-

poses of this argument between an undercover officer who is posing

a3 a prisoner and a prisoner, such as Sarivola, who is serving as a

government informant. We also argued in Perkins that deception

does not constitute coercion. That argument also applies to this case.

Sarivola overstated the danger posed by the other in-

mates in order to induce respondent to confess.’

Sarivola did not demand that respondent confess in

return for his protection; Sarivola only asked respondent

to speak the truth about the matter. If respondent had

been innocent, he could have said so and presumably still

would have received Sarivola’s protection. For that rea-

son, Sarivola’s offer was not one likely to elicit a false

confession; the case for admitting respondent’s statement

is therefore even stronger than when the police have

made an offer that requires an admission of guilt in

return.'? In sum, because vespondent did not act under

the influence of an immediate threat of serious physical

injury, Sarivola did not make respondent an offer that

he couldn’t refuse; respondent’s statement to Sarivola was

the product of an exercise of free will, as this Court has

used that term,'' and was properly admitted at trial.

12 Of course, prison authorities had a duty to protect respondent,

since respondent was incarcerated. See DeShaney v. Winnebago

County DSS, 109 S. Ct. 998, 1004-1005 & n.5 (1989). There is noth-

ing to suggest, however, that the government was derelict in that

regard.

13 Respondent also was not a juvenile caught up for the first time

in the criminal justice system, who might be particularly suscepti-

ble to Sarivola’s influence. Respondent was 42 years old; he had six

prior felony convictions; and he had been ae on three prior

occasions. Presentence Report 1, 8-9 (Feb. 5, 1986).

14.As this Court has noted, the ‘“‘voluntariness rubric,” which is

based in part on the suspect’s capacity to exercise “free will,” has

been subject to much criticism »% the ground that it has failed to

provide discernibie standards for courts to apply. Miller v. Fenton,

474 U.S. at 116 n.4. Although it is unnecessary in this case for the

Court to explore the proper scope of the “free will’ component of

volintariness, we submit that Profeggor Grano's formulation is

appropriately sensitive to tl mpeting moral and practical inter-

ests. He advocates a principally objective test under which the “free

il” or és ponent the due process voluntari-

wi) r a person of ordinary firmness, inno-

vy the defendant's age, physical condition, and

t not otherwise having the de-

ts, temperament, intelligence, or social

Il. THE ERRONEOUS ADMISSION OF AN INVOLUN-

TARY CONFESSION SHOULD NOT CALL FOR

AUTOMATIC REVERSAL OF A_ CONVICTION,

WITHOUT REGARD TO WHETHER THE ERROR

MAY BE HARMLESS

In its initial decision, the Arizona Supreme Court

ruled that the erroneous admission of respondent’s con-

fession to Anthony Sarivola was harmless beyond a rea-

sonable doubt. In its second opinion, it held that that

error required reversal since this Court’s decisions for-

bid an appellate court from inquiring whether such an

error was harmless. Those decisions also trace their lin-

eage to Bram, which held that the erroneous admission of

the defendant’s confession automatically requires reversal

t his conviction. 168 U.S. at 541-543. This case raises

‘he question whether that rule should be abandoned. We

that it should.

\. Developments In The Harmless Error Doctrine

since Bram Have Rendered Obsolete The Rule Of

Per Se Reversal Set Forth In That Case

‘m was decided during a period of our legal history

ny trial error required reversal of a defendant’s

nviction, and no error was too trivial to be found

narmiess. As one prominent jurist has noted, “|t|here

was a time in the law, extending into our own century,

when no error was lightly forgiven. In that somber age

of technicality the slightest error in a trial could spoil

the judgment. The narrow bounds of propriety were en-

tirely surrounded by booby traps.” R. Traynor, The

Riddle of Harmless Error 3 (1970). Throughout that

period, “courts of review ‘tower/ed] above the trials of

criminal cases as impregneble citadels of technicality.’ ”

Kotteakos v. United States, 328 U.S. 750, 759 (1946).

“So great was the threat of reversal, in many jurisdic-

tions, that criminal trial became a game for sowing re-

background), and strongly preferring not to confess, would find the

interrogation pressures overbearing.” Grano, supra, 65 Va. L. Rev.

at 906.

versible error in the record, only to have repeated the

same matching of wits when a new trial had thus been

obtained.” bid.

Judges and scholars such as Taft, Wigmore, Pound,

and Cardozo criticized that state of affairs on the ground

that “justice, though due to the accused, is due to the

accuser also,” Snyder v. Massachusetts, 291 U.S. 97, 122

(1934). See Kotteakos, 328 U.S. at 758-760 (collecting

authorities). Spurred by that criticism, Congress and

the States early in this century launched a “broad at-

tack’”” against such “abuses,” id. at 759, by adopting

harmless error statutes “to keep the balance true,”

Snyder, 291 U.S. at 122, between society’s interest in

convicting the guilty and an innocent person’s interest in

avoiding an unjust conviction. Harmless error statutes

and rules have now been adopted in every jurisdiction.

Chapman V. California, 386 U.S. 18, 22 (1967). E.g., 28

U.S.C. 2111; Fed. R. Crim. P. 52(a). They require

courts to disregard errors that do not materially affect

the verdict, and they typically include the type of error

held automatically fatal in Bram, the erroneous admis-

sion of evidence.

Even though the purpose of the harmless error doc-

trine was “|t|o substitute judgment for automatic ap-

plication of rules,” Kotteakos, 328 U.S. at 760, during

the 70 years following Bram this Court frequently reit-

erated the rule of automatic reversal for the erroneous

admission of confession evidence without inquiring

whether that rule had survived contemporary develop-

ments in harmless error jurisprudence."* Yet in 1967

See Lyons v. Oklahoma, 322 U.S. 596, 597 n.1 (1944): Malinski

Vv. New York, 324 U.S. 401, 404 (1945): Haley v. Ohio, 332 U.S. at

599; Gallegos v. Nebraska, 342 U.S. 55, 63 (1951); Stroble v. Cali-

fornia, 343 U.S. 181, 190 (1952); Brown vy. Allen, 244 U-S. 443, 475

(1953); Payne v. Arkansas, 356 U.S. at 568; Spano v. New York,

860 U.S. 315, 324 (1959); Blackburn v. Alabama, 361 U.S. 199, 206

(1960); Lynumn vy. Illinois, 372 U.S.‘at 537: Haynes v. Washington,

875 U.S. at 518; Jackson v. Denno, 378 U.S. 368, 376 (1964):

Chapman Vv. California, 386 U.S. at 23 & n.&; Lego vy. Twomey, 404

U.S. 477, 483 (1972); Rose v. Clark, 478 U.S. 570, 577. 578 n.6

(1986).

this Court in Chapman Vv. California, supra, adopted the

general rule that a constitutional error does not auto-

matically require reversal of a conviction. Since then,

the Court has applied harmless error analysis to a wide

range of errors and has recognized that most constitu-

tional errors can be harmless. Rose v. Clark, 478 U.S.

570, 578-579 (1986); United States v. Hasting, 461 U.S.

499, 509 (1983)."" In light of contemporary principles

16 Harmless error principles have been held applicable to a broad

range of errors in state and federal proceedings. See, e.g., Clemons

V. Mississippi, 110 S. Ct. 1441, 1450-1451 (1990) (unconstitutionally

overbroad jury instructions at the sentencing stage of a capital

case); Satterwhite v. Teras, 486 U.S. 249 (1988) (admission of

evidence at the sentencing stage of a capital case, in violation of the

Sixth Amendment Counsel Clause) ; Carella v. California, 109 S. Ct.

2419, 2421 (1989) (jury instruction containing an erroneous conclu-

sive presumption); Pope vy. Illinois, 481 U.S, 497, 501-504 (1987)

(jury instruction misstating an element of the offense): Rose Vv.

Clark, 478 U.S. 570 (1986) (jury instruction containing an errone-

ous rebuttable presumption) ; Crane v. Kentucky, 476 U.S. 683, 691

(1986) (erroneous exclusion of defendant’s testimony regarding the

circumstances of his confession); Delaware v. Van Arsdall, 475 U.S.

673 (1986) (restriction on a defendant’s right to cross-examine a

witness for bias, in violation of the Sixth Amendment Confronta-

tion Clause); Rushen v. Spain, 464 U.S. 114, 117-118 & n.2 (1983)

(denial of defendant’s right to be present at trial): United States

V. Hasting, 461 U.S. 499 (1983 improper comment on defend-

ant’s silence at trial, in violation of the Fifth Amendment Self-

Incrimination Clause); Hopper v. Evans, 456 U.S. 605 (1982) (stat-

ute improperly forbidding trial irt from giving a jury instruction

on a lesser included offense in a capital! case, ir lation of the Due

Process Clause); Kentucky Vv. Whorton, 441 U.S. 786 (1979) (failure

to instruct the jury on the ; imption of innocence Moore V.

Illinois, 434 U.S. 22 - 1977 idmiss f identification evi-

dence in violation of the <?x: menament se): B om

v. United States, 411 U.S. 223, 231-2232 ‘7 imission of the

out-of-court statement of a 4 let lant in violation

of the Sixth Amendment 4 Wilt v. Wa

wright, 407 U.S. 371 (1972 n in violation

of the Sixth Amendment | iu mbes Vv. Maroney.

399 U.S. 42, 52-53 (1970 idmiss f ler tained in viola-

tion of the Fourth Amendment Cole Vlchama, 399 U.S. 1,

10-11 (1970 denial of counsel at a preliminary hearing in viola-

tion of the Sixth Amendment Counsel Clause

of harmless error law, the per se rule in Bram can no

longer be justified and should be expressly repudiated.

B. The Admission Of A Defendant’s Involuntary Con-

fession Is Not The Type Of Error That Automati-

cally Requires A Conviction To Be Reversed

1. A basie principle of modern American law—

applicable equally to criminal and civil cases, and to con-

stitutional and nonconstitutional claims—is that a trial!

court’s judgment should not be reversed if the party de-

fending that judgment can show that any error that oc-

cured at trial had no effect on the outcome. That prin-

ciple, which is the essence of the harmless error rule,

recognizes that the trial of a criminal case can be an

extremely complex undertaking, and that correcting

every error that occurs before or during a criminal trial!

by ordering a new trial is both costly and pointless. New

trials consume scarce resources and introduce additional

delays into the administration of justice. Delay is the

enemy of truth and can make a retrial difficult, if not im-

possible, because the memories of witnesses can fade,

witnesses may decline to testify, they may move or die,

and critical evidence can be lost. Even if a new trial

rectifies errors made at the first trial, there is still the

risk that new and different errors will take their place.

Nor is the accuracy of verdicts the only victim of delay.

All of the participants in the criminal justice system—

judges, prosecutors, victims of crime, the community, as

well as the persons accused of crime—have a powerful

interest in resolving criminal charges at one trial, if

possible.’ The harmless error doctrine therefore serves

17 Retrials increase the trial court’s case load, which inevitably

delays the disposition of other cases, decreases the care with which

the court can handle the matters before it, and consumes valuable

time that could be spent on legal study, thus increasing the risk of

mistake in every case that the judge tries. Retrials increase the

burden on the prosecution, which may force the prosecutor to agree

to plea bargains that would otherwise be unacceptable, or to abandon

some cases altogether. Delays can burden other defendants, whose

trials must be postponed in order to accommodate retrials in other

cases. Witnesses needlessly relive painful experiences, which deters

a variety of important interests in the administration of

justice and reinforces “the principle that the central pur-

pose of a criminal trial is to decide the factual question

of the defendant’s guilt or innocence.” Delaware v. Van

Arsdall, 475 U.S. 673, 681 (1986).

Of course, if an error creates a substantial risk that

an innocent person has been convicted, the judgment can-

not be allowed to stand. Moreover, this Court has ac-

knowledged that some constitutional errors are so incon-

sistent with fundamental fairness or inherently so pre-

judicia. that reversal of a conviction is necessary when-

ever theyetccur. Such errors include a trial before a

judge with a financial interest in the outcome and the

complete denial of counsel at trial. Clark, 478 U.S. at

977-979. In Justice Harlan’s words, those errors “have

an effect which is so devastating or inherently indeter-

minate that as a matter of law they cannot reasonably be

found harmless.”” Chapman, 386 U.S. 52 n.7 (dissenting

opinion). The other errors that the Court has placed in

that category also involve instances in which it is im-

possible to make a reliable determination of prejudice, or

in which an error strikes at fundamental societal values

that transcend the criminal process and outweigh so-

ciety’s otherwise compelling interest in convicting per-

sons who commit crimes.'*

voluntary cooperation with the criminal justice system and makes

victims of crime also victims of the system. The community’s inter-

est in retribution and in the swift administration of justice is harmed

by delay, as is society’s interest in the incapacitation, rehabilitation,

and deterrence of offenders. And when a person accused of a serious

crime is free on bail, a delay in bringing his prosecution to a close

prelongs public anxiety over community safety and increases the risk

that he will commit new crimes while at large.

18 See Young Vv. Vuitton et Fils S.A., 481 U.S. 787, 809-814 (1987)

(plurality opinion) (appointment of a prosecutor with a financial

interest in the outcome creates an appearance of impropriety and

has effects on the prosecution that are difficult to assess): Rose v.

Clark, 478 U.S. at 578 (“harmless-error analysis presumably would

not apply if a court directed a verdict for the prosecution in a

criminal trial by jury”); Vasquez v. Hillery, 474 U.S. 254 (1986)

(unlawful exclusion of members of the defendant’s race from the

2 Bram held that the erroneous admission of a de-

fendant’s statement always requires reversal since, as a

matter of logic, a specific item of evidence cannot be both

probative and nonprejudicial. 168 U.S. at 541-543.

There is a “contradiction,” Bram concluded, between “the

assertion that the statement of an accused tended to

prove guilt, and therefore was admissible,” and the

argument on appeal that the same statement “did not

tend to prove guilt, and could not, therefore, have been

prejudicial,” id. at 542. Z

While the assertion that probative evidence could be

harmless may have seemed contradictory at the turn of

the century, there is no such contradiction under modern

principles of appellate review. In the modern system,

the analysis that a trial court performs to decide whether

grand jury strikes at fundamental values of our society and does

not lend itself to harmless error analysis); McKaskle v. Wiggins,

465 U.S. 168, 177 n.& (1984) (erroneous denial of a defendant's

right to represent himself at trial cannot be harmless, since exercise

of the right increases the likelihood of conviction) ; Jackson \

Virginia, 443 U.S. 307, 320 n.14 (1979) (suggesting that failure *

instruct a jury on the reasonable doubt standard cannot be harm-

less); Holloway v. Arkansas, 435 U.S. 475, 491 (1978) (improper

compulsory joint representation of defendants with conflicting inter-

ests does not lend itself to harmless error analysis because what

conflict-free counsel could have done will not be clear from the rec-

ord). Cf. Waller v. Georgia, 467 U.S. 39, 49 & n.9 (1984) (defendant

need not show specific prejudice in order to obtain reversal because

of denial of a public trial, due to difficulty of making that showing).

In some instances, prejudice is an element of a constitutional

violation. See, e.g., United States Vv. Bagley, 473 U.S. 667, 682

(1985) (prosecution’s failure to disclose potentially exculpatory evi-

dence): Strickland v. Washington, 466 U.S. 668, 694 (1984) (in-

effective assistance of counsel) ; United States V. Valenzuela-Bernal,

458 U.S. 858, 874 (1982) (deportation of potential defense witness) ;

Weatherford Vv. Bursey, 429 U.S. 545, 554-557 (1977) (defendant’s

right to counsel not infringed where attorney-client information ob-

tained by government informant had no effect on the trial). Such

claims are not subject to harmless error analysis, since it is

redundant to ask whether an error affected the outcome if the de-

fendant has already shown that the error was prejudicial in proving

its existence.

to admit evidence is not the same as the analysis that

an appellate court uses to decide whether the erroneous

admission of that evidence is harmless. A trial judge

generally must admit all “relevant” evidence, i.c¢., evi-

dence that has “any tendency to make the existence of

any fact that is of consequence to the determination of

the actiun more or less probable than it would be without

the evidence.” Fed. R. Evid. 401. That threshold is a

very low one, and does not require that an item of evi-

dence be sufficient to sustain a judgment in a proponent’s

favor in order for it to be admitted.'* The harmless er-

ror inquiry is quite different. Under that analysis, an

appellate court must uphold a judgment after reviewing

the entire record if erroneously admitted evidence did not

have a “substantial influence’ on the outcome of the

trial. Bank of Nova Scotia v. United States, 487 US.

250, 256 (1988); Kotteakos, 328 U.S. at 765. Thus. a

specific item of evidence can be probative, because it has

some tendency to prove a matter at issue, but insignifi-

cant in the context of the entire record, if other evidence

overwhelmingly proves the same matter, or if the evi-

dence relates only to a matter that was not disputed. The

“contradiction” that troubled the Court in Bram is pres-

ent only when an erroneously admitted item of evidence

is the sole proof of a disputed issue. In all other cases,

there is no necessary contradiction between the conclu-

sion that evidence is probative and the conclusion that its

erroneous admission is nonprejudicial.

3. Although contemporary harmless error doctrine has

eliminated the logical justification for the rule adopted in

ME. Cleary, McCormick on Evidence $ 185, at 542-5423 (2d ed. 1984

(“An item of evidence, being but a single link in the chain of proof,

need not prove conclusively the proposition for which it is offered.

" ° * Whether the entire body of evidence is sufficient to go to the

jury is one question. Whether a particular item of evidence is rele-

vant to his case is quit another. * * * A brick is not a wall.”

(footnotes omitted); 1A J. Wigmore, Evidence § 29, at 976 (P.

Tillers rev. ed. 1983); Notes of Advisory Committee on Proposed

Rules, 28 U.S.C. at 744 (1988) (“[I]t is not to be supposed that

every witness can make a home run’’).

Bram, one could seek to defend the rule on practical

grounds. It could be argued that admission of a defend-

ant’s coerced confession should always be held prejudicial

since “the defendant’s own confession is probably the

most probative and damaging evidence that can be ad-

mitted against him,” Cruz v. New York, 481 U.S. 186,

195 (1987) (White, J., dissenting), and because when a

coerced confession is part of the evidence before the jury,

‘no one can say what credit and weight the jury gave to

the confession,” Payne v. Arkansas, 356 U.S. 560, 568

(1985). Since a defendant’s confession is extremely pow-

erful evidence that is likely to be prejudicial in most

cases, the argument runs, it is reasonable and efficient to

adopt a rule of automatic reversal.

That argument, however, is flawed. It is true that the

erroneous admission of a defendant’s confession will very

often be prejudicial. But it does not follow that the ad-

mission of the defendant’s confession can never be harm-

less. The uniquely powerful impact of most confession

evidence simply means that the government will often be

unable to carry its burden of establishing that the error

of admitting an involuntary confession was harmless.

But that is no reason to adopt a rule of law barring the

government from ever making that showing. In many

eases, such as this one, the defendant may have made a

second ‘or third, or fourth) admissible confession that

is similar to the one held inadmissible.*” Other proof,

such as videotape evidence, eyewitness testimony, the

testimony of confederates, the fruits of a crime (such as

narcotics found on the defendant’s person), recorded wire-

tap conversations, fingerprints, or genetic identification,

may supply overwhelming proof of the accused’s guilt.

20It is not uncommon for defendants to make multiple inculpa-

tory statements. E.g., United States v. Bayer, 331 U.S. 582 (1947);

Stroble, supra; Westover v. United States, decided together with

Miranda, supra; Oregon v. Elstad, 470 U.S. 298, 322-324 nn.3-6

(1985) (Brennan, J., dissenting) (citing 50 lower court cases).

In addition, not all statements by defendants constitute

full admissions of guilt. In many instances, a defendant’s

statement may be only moderately inculpatory, and the

prejudicial effect of that statement may be overwhelmed

by other aspects of the government’s case. In each in-

stance, the government may be able to carry its burden

under Chapman, and in some cases it may be ale to do

so without great difficulty. There is no principled reason

to deny the government that opportunity.

The Court has applied harmless error analysis in sev-

eral closely related contexts where it also could have been

argued that erroneously admitted evidence would ordinar-

ily seal a defendant’s fate. For instance, Satterwhite v.

Texas, 486 U.S. 249, 256 (1988), and Milton v. Wain-

wright, 407 U.S. 371 (1972), held that the admission of

a defendant’s statements obtained in violation of the Sixth

Amendment is subject to harmless error analysis. The

Court so ruled even though the impact of the inadmis-

sible evidence would appear to be the same as the impact

of a confession secured in violation of the Fifth Amend-

ment. Similarly, Moore v. Illinois, 434 U.S. 220, 232

(1977), Gilbert v. California, 388 U.S. 263, 274 (1967),

and United States v. Wade, 388 U.S. 218, 242 (1967),

held that the admission of evidence obtained at a post-

indictment lineup in violation of the Sixth Amendment

is subject to harmless error analysis, even though the

Court recognized that an identification at a lineup “might

well settle the accused’s fate and reduce the trial to a

mere formality,” Wade, 388 U.S. at 224. And Brown v.

United States, 411 U.S. 223, 231-232 (1973), Schneble v.

Florida, 405 U.S. 427 (1972), and Harrington v. Cali-

fornia, 395 U.S. 250 (1969), held that the admission of

an out-of-court statement of a nontestifying co-defendant

is subject to harmless error analysis. The Court so ruled

even though it had previously held that admission of such

evidence could be “devastating” to the accused, Bruton v.

United States, 391 U.S. 123, 136 (1968), that it creates

a “serious flaw|] in the fact-finding process at trial,”

Roberts v. Russell, 392 U.S. 298, 294 (1968), and that it

poses “a serious risk that the issue of guilt or innocence

may not have been reliably determined,” id. at 295.

Implicit support for that point can be found in the uni-

form ruling of lower courts that the admission of a de-

fendant’s statements obtained in violation of Miranda

is subject to harmless error analysis.*! Although state-

ments taken in violation of Miranda and statements taken

in violation of the principles of voluntariness are inad-

missible for different reasons, they are likely to have a

similar impact on the jury if they are admitted; if any-

thing, statements taken in violation of Miranda are likely

to have an even greater impact, as the jury will have

less reason in that setting to believe that the statements

are the unreliable products of coercion or other improper

investigative conduct. Nonetheless, a per se rule of re-

versal has not been applied in the Miranda setting, and

such a rule is equally inappropriate here.

This Court has made clear that automatic reversal is

unwarranted when an error does not “affect the compo-

sition of the record.” Rose v. Clark, 478 U.S. at 579 n.7.

If appellate review “does not require any difficult in-

quiries concerning matters that might have been, but

were not, placed in evidence * * * there is no inherent

difficulty in evaluating whether the error prejudiced [a

defendant] in th{e] case.” /bid. As the Court explained

in Satterwhite v. Texas, 486 U.S. at 256-257, and Hollo-

way V. Arkansas, 435 U.S. 475, 490 (1978), “li]Jn the

normal case where a harmless-error rule is applied, the

error occurs at trial and its scope is readily identifiable.

Accordingly, the reviewing court can undertake with

some confidence its relatively narrow task of assessing

the likelihood that the error materially affected the delib-

"1 F.9., Howard v. Pung, 862 F.2d 1348, 1351 (8th Cir. 1988),

cert. denied, 109 S. Ct. 3247 (1989); United States v. Johnson, 816

F.2d 918, 923 (3d Cir. 1987); Bryant v. Vose, 785 F.2d 364, 367

(1st Cir.), cert. denied, 477 U.S. 907 (1986); Martin v. Wainwright,

770 F.2d 918, 932 (1985), modified, 781 F.2d 185 (11th Cir.), cert.

denied, 479 U.S. 909 (1986); United States v. Ramirez, 710 F.2d

535, 542-543 (9th Cir. 1983); Harryman v. Estelle, 616 F.2d 870,

875 (5th Cir.) (en banc), cert. denied, 449 U.S. 860 (1980).

erations of the jury.”” Harmless error analysis is permis-

sible, the Satterwhite Court noted, “in both capital and

noncapital cases where the evil caused by a Sixth Amend-

ment violation is limited to the erroneous admission of

particular evidence at trial.” 486 U.S. at 257.

The error in this case is indistinguishable from the

ones in Satterwhite, Milton, Moore, and Brown, because

this case also involves the erroneous admission of evi-

dence. Reviewing courts can examine the record to gauge

whether that error was harmless. That the error violated

the Fifth Amendment, not the Sixth, does not make that

inquiry any more difficult.

In sum, when the error at issue is the improper ad-

mission of evidence, it is not necessary to speculate about

what the record would have reflected if the error had not

been commiited. For that reason, it is not surprising

that, other than coerced confessions, there is no class of

evidence the erroneous admission of which has been held

to be per se prejudizial.

4. It could be argued that a rule of automatic reversal

is necessary to protect values other than the accuracy of

verdicts. Cf. Vasquez v. Hillery, 474 U.S. 254 (1986)

(discrimination in the selection of grand jurors). Coerced

confessions are inadmissible not only because they are

considered unreliable, but also because due process forbids

the police from using interrogation techniques “offensive

to a civilized system of justice,” Miller v. Fenton, 474

U.S. at 109, whether or not a confession is reliable.

Rogers Vv. Richmond, 365 U.S. 534 (1961); Jackson v.

Denno, 378 U.S. 368, 385-386 (1964). It could therefore

be argued that coerced confessions should be exempt from

harmless error analysis, since they are excluded in part

for reasons independent of the accuracy of the verdict.”

22 Justice Harlan made a closely related argument in his dissent

in Chapman vy. California, supra. He suggested that certain types

of intentional official misconduct should always result in reversal to

demonstrate society’s intolerance for such misbehavior. 386 U.S.

at 52 n.7. That theory is similar to the one stated in the text. To

the extent it differs, that theory rests on a deterrence rationale, and

That argument, however, has already been rejected in

other closely analogous eentexts. Government misconduct

that results in violations of the Fourth and Sixth Amend-

ments may be at least as reprehensible as misconduct that

results in a coerced confession. Yet this Court has con-

sistently held harmless error principles applicable to evi-

dence that is the product of such violations. See Cham-

bers Vv. Maroney, 399 U.S. 42, 52-53 (1970); Satterwhite

Vv. Texas, 486 U.S. at 256; Milton v. Wainwright, 407

U.S. at 372-373, 378-379. There is no reason to accord

special status to a confession obtained by way of coercion,

in contrast to physical evidence obtained as a result of

an unlawful search, or statements obtained through a

violation of the Sixth Amendment.

That conclusion is consistent with the role that due

process plays in a criminal trial. As Justice Stevens

wrote for a unanimous Court in Mahry v. Johnson, 467

U.S. 504, 511 (1984), “{t]he Due Process Clause is not

a code of ethics for prosecutors: its concern is with the

manner in which persons are deprived of their liberty.”

The Court made the same point in Smith v. Phillips, 455

U.S. 209, 219 (1982) ‘citation omitted), explaining that

“the touchstone of due process analysis in cases of al-

leged prosecutorial misconduct is the fairness of the

trial, not the culpability of the prosecutor. * * * [T]he

aim of due process ‘is not punishment of society for the

misdeeds of the prosecutor but avoidance of an unfair

trial to the accused.’ If the admission of a defendant’s

confession is harmless beyond a reasonable doubt, the

accused has not been denied a fair trial.

is inconsistent with United States v. Hasting, 461 U.S. 499 (1982).

There, the court of appeals reversed a conviction due to the prosecu-

tor’s comment on the defendant's silence at trial and declined to

consider whether the error was harmless, since doing so “would

impermissibly compromise the clear constitutional violation,’ 660

F.2d 301, 303 (7th Cir. 1980). This Court reversed, holding that

“the interests preserved by the doctrine of harmless error cannot

be so lightly and casually ignored in order to chastise what the

court [of appeals! viewed as prosecutorial overreaching.” 461 US

at 507.

Ill. STARE DECISIS CONSIDERATIONS DO NOT PRE-

CLUDE RECONSIDERATION OF THE RULES

ADOPTED IN BRAM

The doctrine of stare decisis serves important purposes

in our legal system. It promotes the evenhanded, predict-

able, and consistent development of legal principles; it

fosters reliance on judicial rules; and it contributes to

the fact and the appearance of integrity in the judicial

process. Vasquez V. Hillery, 474 U.S. at 265-266. But

“stare decisis is a principle of policy and not a mechani-

cal formula of adherence to the latest decision,” Helvering

Vv. Hallock, 309 U.S. 106, 119 (1940), especially when

constitutional issues are involved, since “correction

through legislative action is practically impossible.”

Burnet Vv. Coronado Oil & Gas Co., 285 U.S. 393, 407

(1932) ‘Brandeis, J., dissenting). Stare decisis “bows

to the lessons of experience and the force of better reason-

ing, recognizing that the process of trial and error, so

fruitful in the puysical sciences, is appropriate also in

the judicial function.” Jd. at 407-408. And stare decisis

has less weight when new facts or later cases have eroded

the precedential value or rationale of a prior decision.“

This is just such a case. The rules adopted in Bram

have not survived this Court’s recent decisions on the

issues of coerced confessions and harmless error. On both

issues, Bram is “outdated, illogical, * * * {and} legiti-

mately vulnerable to serious reconsideration.” Vasquez,

474 U.S. at 266. What the Court wrote in Puerto Rico

Vv. Branstad, 483 U.S. 219 (1987), about Kentucky v.

Dennison, 65 U.S. (24 How.) 66 11861), is equally true

of Bram: It “is the product of another time[,] * * *

233 EF g., Alabama v. Smith, 109 S. Ct. 2201, 2206 (1989); Tyler

Pipe Indus., Inc. Vv. Washington State Dep't of Revenue, 483 U.S.

232, 241-248 (1987): Puerto Rico v. Branstad, 483 U.S. 219, 224-230

(1987): United States v. Miller, 471 U.S. 130, 144 (1985): United

States Vv. Leon, 468 U.S. 897, 9OR-9183 (1984): Limbach v. Hooven

& Allison Co., 466 U.S. 353, 357-361 (1984); United States v.

Salvueceti, 448 US. 83, BR 61980): Hughes v. Oklahoma, 441 U.S.

322, 331-332 (1979).

[y]et this decision has stood while the world of which it

was a part has passed away.” 483 U.S. at 230.

CONCLUSION

The judgment of the Supreme Court of Arizona should

be reversed.

Respectfully submitted.