All the 14th Amendment says on the subject is that the rights guaranteed in the Constitution apply to the states. There’s nothing in the 14th Amendment saying that there’s a right against involuntary confessions. That right is from the 5th Amendment. If there was no 5th Amendment to have as a source for this right then there would be no right for the 14th to apply to the states.
It’s been over ten years now, but I was taught that whenever I wrote about an incorporated right I should start with the 14th, usually with its Due Process clause. Maybe that’s what’s causing some of the confusion?
Maybe. Certainly Malloy v. Hogan is the case that incorporated the Fifth Amendment’s self-incrimination protection against the states via the Fourteenth Amendment. But the fact remains that the Fourteenth Amendment is the vehicle; the Fifth is the cargo.
But that is voluntary like if I get drunk and confess a crime. The OP is about involuntary drugging.
I appreciate you springing into action to represent Little Nemo. Do me a favor please counsellor… Let me know the constitutional amendment that supported the decision of the Court in Brown v Mississippi. Was it the cargo or the vehicle?
I’m not (currently) talking about an incorporated 5A right. Although everybody wants me to. I’m talking about a 14A right.
I have never disagreed with the fact that the 14A incorporates the 5A as against the states. And that, through that mechanism, we have a 5A right against self incrimination at a state level. I also agree there is an entirely different cross-section of law dealing with the 5A (yes as applied to the states by the 14A) in the specific area of interrogation while in police custody (Miranda et al).
I’m talking about a confession made involuntarily in violation of due process. A due process that comes from the 14A.
And as to your other point, I was told that the 14th doesn’t mention interviews or confessions… I was told this as if it was some great salient point that means anything whatsoever. Hence my Miranda example, which maybe you didn’t understand. So here goes…
Miranda interprets the 5A. It says you must give several warnings before questioning in police custody. We all know them from TV… Right to be silent, the right to an attorney present during questioning, etc. As you know, if you do not advise those specific rights before questioning, any subsequent statement will be inadmissible. This all stems from the 5A privilege against self-incrimination. BUT THE 5TH NEVER MENTIONS THESE WARNINGS. These warnings are nowhere to be found in the body of the Constitution.
So… my point is that the basic text of the Constitution is not always illustrative of what it means. Just because the text doesn’t say something doesn’t mean it’s not in there (as interpreted by the SCOTUS).
I was under the impression that the rights embodied in the 14th’s due process differed from those of the 5th. That, among other things, the due process guaranteed by the 14th meant applying the rights and processes due from the Bill of Rights–that the 5th’s right against self incrimination is partly how due process is defined, and the 14th meant you have that right.
Consider whether the right against self incrimination preexisted the 14th (irrespective of whether it had been recognized by the courts of the time). Also consider whether the 14th would even be in question if the OP had been limited to the FBI or other Federal agency.
Then again, I’m the guy who went to his law professor’s office a week into school and said “I’m having trouble understanding what due process is—do you have a few minutes to explain it to me?” :smack:
Yes, no doubt about it: Brown rested on the Fourteenth Amendment and held that a confession extracted by whipping the accused violated the due process clause of the Fourteenth Amendment.
But Brown is not often offered up these days in motions to exclude confessions. Why is that?
You said:
Do you believe that’s the best, most current rationale insofar as the thread’s hypothetical of extracting a confession via drugging – a 1930s era case that rests on the 14th Amendment?
The defense lawyer would promptly ask for this to be ruled inadmissible due to the officer “getting the defendant drunk” prior to questioning. And if the Judge did admit it, he would challenge it strongly in front of the jury, like asking them if they think everything they have heard from a drunk guy would hold up in court. A good defense lawyer should be able to make such a confession pretty suspect in court.
Thanks for that.
I’ll get to that in a sec…
Yes, absolutely. This is a voluntariness issue.
Now I know the courts have mostly dealt with Miranda when it comes to confessions (and you astutely questioned why that’s so). Basically I think it comes down to the increased professionalism of both our law enforcement community and our prosecutors. A police officer nowadays would never use force to elicit a confession. He knows if he did he just killed the case. And a prosecutor who was handed a case where force was used to extract a confession would drop it faster than a hot potato. So… These voluntariness cases are not only not making it to the SCOTUS. They aren’t even making it to court. Doesn’t mean they’re not still the applicable law. It just means the borderline cases that ARE going up are Miranda cases.
Let me throw a hypo at you: A suspect is validly arrested for a state-law charge of murder. In a police interrogation room, he is read his Miranda rights (as required by the 5A as applied to the states through the 14th A). He waives his rights voluntarily, knowingly, and intelligently. He then denies committing the murder. The questioning detective doses him up with truth serum. At no time during this doping process does the suspect invoke any of his rights. Once the serum kicks in and the altered state begins, the suspect cannot refuse to talk and he must tell the truth. During subsequent questioning, he confesses to the murder.
Now I would absolutely argue to suppress this confession as involuntary, especially seeing as Miranda was complied with. What would you argue?
If you’re going to write about police interrogation, you should understand the ‘fruit of a poisoned tree’ doctrine.
You can look it up, but in short, if some bit of evidence is illegally obtained, anything discovered as a result of that (i.e. anything not proven to be obtained independently) is inadmissible in court. So, a minor slip in an interrogation could ruin the case against somebody.
There are key details missing: was the suspect aware that the detective was dosing him with the truth serum? If the suspect was aware, did he give informed consent (i.e. was he fully aware of the effects of the serum)?
I dare say that someone who knowingly and voluntarily takes a truth serum, with no hidden shenanigans, would not be able to make a 14th, 5th or even 4th (they illegally searched my brain!) claim.
Also, see post #13
Somewhat related:
Given that the police can permissibly lie in an interrogation, if they convince a suspect that what he had just ingested was a very powerful truth serum, could that give rise to an evidenciary challenge?
What if they gave him a mildly intoxicating substance (say they knew he had just quit smoking so put a high concentration of nicotine in his drink) so that he felt physical–but no objectively discernable mental–effects?
Lastly, there may be a pair of interrelated issues in play. First, there is the reliability of a serum-induced confession (exemplified by t-bonham’s drunken Chewbacca defense). Then there’s the more prevalent admissibility question–whether the confession or evidence obtained by it would ever make it to the fact finder.
Okay, I’ll flesh it out for you:
Suspect: “What are you doing with that needle?”
Detective: “Injecting you with a truth serum so you’ll stop lying.”
Detective injects serum into Suspect’s arm.
Detective: “So you did it, right?”
Suspect: “Yes, it was me. With the candlestick. In the conservatory.”
Don’t forget:
Let’s start with no. Happened just like I described above. Suspect did not object but did not consent other than sitting there and allowing the needle to go in his arm.
Okay then. As a hypothetical, say there’s no Fifth Amendment and therefore no rights that are created by the Fifth Amendment.
Show me in the text of the Fourteenth Amendment where you find that “a confession must be voluntary in order to be admissible”.
It comes from the due process clause… You know what? Maybe I’ll let Bricker or someone else explain this to you in a way that won’t make you say “Huh?” If you read my whole post above about not finding the Miranda warnings in the text of the 5th Amendment, but rather in the cases that interpret the 5th amendment, and didn’t get the larger point, then I doubt I’ll be able to communicate it to you.
No, you’re the only one eliciting that reaction from me.
The Fifth Amendment protects due process and actually talks about people being compelled to be a witness against themselves. The Miranda warnings are a pretty direct extrapolation of that explicit right. Even if you can’t see it.
But the Fourteenth Amendment just says people are entitled to due process without in any way defining what due process consists of.
I do agree with your doubts about your ability to communicate to me (or anyone else) the connection between the text of the Fourteenth Amendment and what you imagine it says.
I could, for example, assert that the Third Amendment guarantees me the right to free cable television. And when people ask me for my reasoning on this, I could simply declare that the words “in a manner” clearly means this and loftily refuse to explain it any further. But I doubt I’d convince anyone.
Lol. Okay, I give up. I am clearly making all this stuff up about the 14th Amendment. No support for it whatsoever. I wish you would read Brown v. Mississippi or at least read its Wikipedia page. It might blow your mind.
It strikes me that the root of contention is the subtle distinction between procedural and substantive due process. I believe that *Brown *found a significant procedural due process error, one prohibited by the 14th.
First, the vicious beatings offend procedural due process because the confessions they elicit do not necessarily relate to the actual event or the interests of justice. In contrast, they subvert the trial process guaranteed by the 14th.
Consider:
and
and finally
But taking the OP hypothetical as a given does not run afoul of Brown’s analysis. A pinprick is not torture. A key premise of the OP is that it is a functional truth serum–that utterances made under its influence are indeed the truth. Further, there are many ways in which the right against self-incrimination can be waived (e.g. voluntarily taking the witness stand).
Lastly, in the years since Brown the law has evolved such that the presumed basis for your claim of inadmissibility would be much stronger were it were grounded in the 5th (by way of the 14th) than resting solely on the 14th.
Consider Malloy v. Hogan, a 1964 case (there are probably much better cases out there, but this was the first one that sparked memory). It’s primarily known (er, to me that is) for its role in the Incorporation Doctrine. But note: