The Common Law Rule

The Common Law Rule.—Not until the latter part of the eighteenth century did courts develop a rule excluding coerced confessions from admission at trial; prior to that time, even confessions obtained by torture were admissible. As the rule developed in England and in early United States jurisprudence, the rationale was the unreliability of the confession's contents when induced by a promise of benefit or a threat of harm.266 In its first decision on the admissibility of confessions, the Court adopted the common-law rule, stressing that while a "voluntary confession of guilt is among the most effectual proofs in the law, from the very nature of such evidence it must be subjected to careful scrutiny and received with great caution." "[T]he presumption upon which weight is given to such evidence, namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made either in consequence of inducements of a temporal nature, held out by one in authority, touching the charge preferred, or because of a threat or promise by or in the presence of such person, which, operating upon the fears or hopes of the accused, in reference to the charge, deprives him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law."267 Subsequent cases followed essentially the same line of thought.268 Then, in Bram v. United States,269 the Court assimilated the common-law rule thus mentioned as a command of the Fifth Amendment and indicated that henceforth a broader standard for judging admissibility was to be applied.270 Though this rule271 and the case itself were subsequently approved in several cases,272 the Court could hold within a few years that a confession should not be excluded merely because the authorities had not warned a suspect of his right to remain silent,273 and more than once later Courts could doubt "whether involuntary confessions are excluded from federal criminal trials on the ground of a violation of the Fifth Amendment's protection against self-incrimination, or from a rule that forced confessions are untrustworthy…"274

266 3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE § 823 (3d ed. 1940); Developments in the Law—Confessions, 79 HARV. L. REV. 935, 954-59 (1966).

267 Hopt v. Utah, 110 U.S. 574, 584-85 (1884). Utah at this time was a territory and subject to direct federal judicial supervision.

268 Pierce v. United States, 160 U.S. 335 (1896); Sparf v. United States, 156 U.S. 51 (1895). In Wilson v. United States, 162 U.S. 613 (1896), failure to provide counsel or to warn the suspect of his right to remain silent was held to have no effect on the admissibility of a confession but was only to be considered in assessing its credibility.

269 168 U.S. 532 (1897). "[T]he generic language of the [Fifth] Amendment was but a crystallization of the doctrine as to confessions, well settled when the Amendment was adopted…" Id. at 543.

270 168 U.S. at 549.

271 Ziang Sun Wan v. United States, 266 U.S. 1, 14-15 (1924). This case first held that the circumstances of detention and interrogation were relevant and perhaps controlling on the question of admissibility of a confession.

272 Burdeau v. McDowell, 256 U.S. 465, 475 (1921); Powers v. United States , 223 U.S. 303, 313 (1912); Shotwell Mfg. Co. v. United States, 371 U.S. 342, 347 (1963).

273 Powers v. United States, 223 U.S. 303 (1912).

274 United States v. Carignan, 342 U.S. 36, 41 (1951). See also McNabb v. United States, 318 U.S. 332, 346 (1943); Brown v. Mississippi, 297 U.S. 278, 285 (1936); Stein v. New York, 346 U.S. 156, 191 n.35 (1953).

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