Confessions are largely important to the prosecution. As such, officers often engage in interrogations, attempting to obtain incriminating information. However, all confessions must be voluntary. This article discusses factors that may cause a confession to be involuntary. The burden of proof is on the prosecution to show the confession was voluntary as a preponderance of the evidence.

Physical Abuse and Deprivations

In 1931, the Wickersham Report outlined the use of the Third Degree, which was physical abusive tactics used to coerce confessions.

In 1897, the Court decided Bram v. United States, 168 U.S. 532 and held that the Fifth Amendment prohibited police coercion in obtaining confessions for federal law. The following case describes when the Court extending this requirement to apply to state laws too.

Brown v. Mississippi

297 U.S. 278 (1936).


Physical abuse of prisoners to obtain a confession is void of due process and a violation of the Constitution. This applies to federal and state courts alike.


The actions of the deputy wrongly obtained the confessions. Because the confessions were the only source of evidence, the convictions must be overruled. Reversed.


A murder occurred and was discovered at about 1 in the morning. Four defendants were then accused of the murder. The first defendant was taken to the home of the victim, and there beaten and whipped. At that time, he did not confess. A few days later, the same deputy came to his home and escorted him to jail. Along the way, the deputy stopped and whipped the defendant until he made a confession to the liking of the deputy.

The three other defendants were also escorted to the jail and there whipped until they confessed to the crime and details of the crime as described by the surrounding mob.

No other evidence was obtained before the trial.

Despite the torturous methods of obtaining the confessions, they were admitted at trial. The only effort made by the trial judge was to provide an instruction informing the jury that they had the right to dismiss the evidence. One day later, the jury returned a guilty verdict.


The right against self-incrimination is so important and fundamental to the Constitution that its protection needs to be afforded to all criminal defendants. Clearly, the defendant’s privilege here was violated by the coercive behavior of the deputy because (1) torture is different than self-incrimination and (2) the states cannot just violate due process principles.

Additional Notes

After Brown, the use of Third Degree interrogation tactics pretty much vanished. However, there are other deprivation cases (other than physical abuse). These cases are much less common now. (1) Payne, 356 U.S. 560 (1958) (deprivation of food). (2) Fikes, 352 U.S> 191 (1957) (isolation). (3) Ashcaft, 322 U.S. 143 (1944) (time of the interrogation). (4) McNabb and Mallory, (delay in court appearance). (5) Haley, 332 U.S. 596 (1948) (age). (6) Beecher, 408 U.S. 234 (1972) (“Particular vulnerability”).

Promises and Threats

State v. Swanigan

106 P.3d 39 (Kan. 2005).


Whether the confession made by Swanigan was involuntary because the statements by the officers included promises and threats.


Based on the totality of the circumstances, if the officers comments threaten charges or promise retribution to an individual with diminished capacity—and those threats or promises cause the confession—any statement taken by the defendant is not admissible.


The evidence is not admissible. Reversed.


Swanigan was suspected of engaging in a robbery of a local convenience store. When he agreed to come to the police station to be questioned, the officers attempted to get a confession out of him. They told him that they had to put information down in the report and wanted to include that he cooperated. Additionally, they told him that if he failed to cooperate, they would pass that information along too. Further, they told him that if he failed to cooperate, he would be charged for other robberies that occurred around the same time.

Throughout the interrogation, Swanigan provided conflicting stories and information. At one point, he confessed to the crime and described details of the crime but recanted his story when a picture of the robbery was shown that did not match the clothing he described. From that point in, Swanigan flatly denied being involved.

Later, Swanigan had a psychological report done which estimated his IQ of 76, anxiety, and mild depression.


Using the totality of the circumstances, the confession was involuntary. Although each piece standing alone was not enough to say the confession is voluntary (e.g., officers are free to say that they will pass on information relating to the cooperation of the defendant), taken together, everything points to the information being involuntary. It is also clear that the officers’ statements had an effect on Swanigan because his story would vary after a new threat or promise was offered.

Additional Notes

Essentially, the threat that failure to confess will be conveyed to the prosecutor may be a violation of the Fifth Amendment because it is a threat against the right to remain silent. This threat against silence alone does not automatically determine the confession was involuntary. The court will consider the age, intellect, and familiarity with the criminal justice system (totality of the circumstances). In other words, if the subject knows they have the right to remain silent, then the threat against silence does not violate the Fifth Amendment.


  • Police can promise to convey notice of cooperation.
  • Cannot promise to convey notice of lack of cooperation.
  • Cannot promise lesser charges for confessing.


  • Cannot threaten more charges for lack of cooperation.

State v. Carroll

645 A.2d 82 (N.H. 1994).

The defendant (19-years-old) went with his mother to the police station after being suspected of murder. Additionally, the mother was a police officer. During the integration, the mother told his son to confess, saying it would be worse for him the longer he waited. When the defendant said he was afraid of others involved, the police informed him that they could discuss protection if he confessed.

The court said the confession was voluntary. Importantly, the mother was a cop, but not acting as a cop. Second, the request for protection may have been seen as coercion, but here the police only explained potential options. In all, the mom’s influence caused the confession, not police coercion.

Police Lies

People v. Thomas

8 N.E.3d 308 (N.Y. 2014).


Under the totality of the circumstances, if false statements made by the police have an impact on the defendant in coercing a confession, then those confessions must be suppressed as a violation against the to not self-incriminate.

The statements were not products of coercion, either physical or psychological, or, in other words, that they were given as a result of a “free and unconstrained choice by their maker.”


The confession was involuntary and should have been suppressed, reversed.


Thomas was charged with the murder of his four-month-old son. Upon waking and discovering their son unresponsive, Thomas’s wife rushed the infant to the hospital. Child services was called and removed their other children from the home while the police collected Thomas. As Thomas’s wife was with the child receiving aid, Thomas was under interrogation distraught.

Before the baby’s death, Thomas was told that if he did not confess, his wife would take the blame. He was told several times that the injury had been an accident (although the physician had said this was murder) and that he would not be arrested if he confessed.

The baby died. However, Thomas was informed that the baby had not died, but the doctor’s needed his confession in order to save the baby’s life. At this point, Thomas confessed to accidental infliction of injury. When confronted with this (saying the injuries required more force), Thomas was given a prop and asked to demonstrate his actions. He did so. His statements and actions were then admitted to evidence for his conviction.


Although not every police lie is a violation of the Constitution, taking all this information into consideration, this situation was. Thomas had been told that the injuries had been an accident and that he would not be arrested nearly 100 times during the interrogation. Further, he was told that his wife would be taken from the bedside of the dying infant if he did not confess. Finally, he was told that the infant was alive when in reality the infant was deceased. Taken together, these assertions made by the officers would shake the moral of any individual, let alone a man who was unaware of the functionings of the criminal justice system.

Additional Notes

This court is not saying that all lies are out, only multiple (but one could be enough) powerful lies designed to overcome the free will of the subject. So, what do we consider?

  • Circumstances surrounding the question
  • Age, experience with police, or education
  • Mental condition
  • Police coercion or trickery

Here are some examples of lies that lead to the exclusion of the evidence. (1) Lynamn, (lose benefits and kids); (2) Spano, (friends). Further, here are examples of lies that are admitted. (1) Contee, (fake lie detector test); (2)Davis, (said the co-defendant admitted which weapon was used).


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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