# Amicus Curiae Brief — Arizona v. Fulminante > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0692%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1991 - **Citation:** 499 U.S. 279 ## Text 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: I. 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- ee 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... | 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 v. 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) 2 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 3 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 4 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. 5 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, 6 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 7 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, 8 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 10 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) 11 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.” 12 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, 13 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.” 14 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. 15 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. 16 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 we 17 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. 18 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). 19 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