Rehnquist Loses Battle but Wins War of Harmless Error: Arizona v. Fulminante

Transcription

1 Rehnquist Loses Battle but Wins War of Harmless Error: Arizona v. Fulminante The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual questions of the defendant's guilt or innocence... [and it] focus[es] on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. 1 I. INTRODUCTION In the midst of escalating national concern regarding police brutality, 2 the United States Supreme Court outraged civil libertarian and criminal rights advocates 3 by announcing that the admission of a 1. Delaware v. Van Arsdall, 475 U.S. 673, 681 (1985) (citations omitted). 2. See, eg., Hector Tobar and Leslie Berger, Tape of LA. Police Beating Suspect Stirs Public Furor, L.A. TIMES, Mar. 6, 1991, at Al. Less than a month prior to the decision in Arizona v. Fulminante, II S. Ct (1991) [hereinafter Fulminante], the nation was shocked by a horrifying videotape depicting four Los Angeles police officers brutally beating the slumped and motionless body of Rodney King, while a crowd of other officers looked on. Mr. King was stopped following a high speed car chase, but when he allegedly became combative, he was shot with a stun gun, kicked, and struck more than forty times with police nightsticks. Id. Civil rights and police watchdog groups indicated that the incident was only one in a string of unprovoked beatings by police officers. Id. at A The media overwhelmingly criticized the Court in Fulminante for its lack of respect for precedent, and for its significant retreat in protection of individual rights. See, eg., The Supreme Court's Harmful Error, N.Y. TIMES, Mar. 29, 1991, at A22 (describing Fulminante decision as "a wild extension" of the harmless error principle, accomplished with "wanton disregard" of precedent); Erwin Chemerinsky, Can the Bill of Rights Survive the Rehnquist Court?, DAILY NEws OF L.A., May 26, 1991, at VPT1; see also John P. Frank, E. Europe Has Much To Teach Us About Democracy, N.J. L.J., July 4, 1991 (former counsel for defendant in Miranda v. Arizona, 384 U.S. 436 (1966), argues that Fulminante may signal the beginning of the end for Miranda rights); see also Charles J. Ogletree, Jr., Arizona v. Fulminante: The Harm of Applying Harmless Error to Coerced Confessions, 105 HARV. L. REv. 152 (1991). As a result of this wide-spread criticism, the House Judiciary Committee voted on September 23, 1991 to negate the Fulminante decision. Committee Chairman and Texas Democrat Jack Brooks led the charge, proclaiming that the decision "defies our common understanding of fairness." Court Challenged on Confessions, BOSTON GLOBE, Sept. 24, 1991, at 31. The House Bill reads: "The admission into evidence of a coerced confession shall not be considered harmless error. For the purposes of this section, a confession is coerced if it is elicited in violation of the Fifth or Fourteenth Articles of Amendment to the Constitution of the United States." H.R. 3371, as amended, 102d Cong., 1st Sess. Title IX, 901 (1991).

2 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 coerced confession 4 may, under certain circumstances, constitute harmless error.' In doing so, the Court retreated from a seemingly well-established view that coerced confessions were in a class by themselves as a form of governmental misconduct, thus requiring mandatory reversal.' The decision represents one in a progeny of 1991 Supreme Court decisions that stand to significantly change the relationship between the citizens of this country and its police officials. 7 This Comment will take an analytical view of what the Fulminante decision represents to the area of criminal law, and more importantly, challenges the general impression that Fulminante represents a significant retreat from the protection of individual rights. Contrary to this general impression, this Comment will discuss how Fulminante provides an increase in the protection of individual rights by raising the standard by which we judge coerced confessions, while at the same time, applying a review measure (harmless error analysis) that is not only consistent with the basic purpose of a criminal trial, but also consistent with the treatment of other similar constitutional errors. Furthermore, this Comment will explain how the Fulminante decision insulates coerced confessions by sending an explicit message to appellate court judges to "proceed with caution" when applying the 4. The Supreme Court historically has used the terms "coerced confession" and "involuntary confession" interchangeably. Arizona v. Fulminante, 111 S. Ct. 1246, 1252 n.3 (1991). 5. Arizona v. Fulminante, Ill S. Ct (1991). The erroneous admission of the confession may be harmless error if there is ample independent evidence outside of the confession to support the defendant's conviction. Id. 6. See Brain v. United States, 168 U.S. 532 (1897) (prior to the adoption of harmless error laws, the Court established the rule of automatic reversal for coerced confessions); Jackson v. Denno, 378 U.S. 368 (1964); see also Chapman v. California, 386 U.S. 18 (1967). In Chapman, the Court made a historical reference in dicta that its prior cases have indicated some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless, citing as examples: coerced confessions, Payne v. Arkansas, 356 U.S. 560 (1958); right to counsel, Gideon v. Wainwright, 372 U.S. 335 (1963); and an impartial judge, Tumey v. Ohio, 273 U.S. 510 (1927). Chapman, 386 U.S. at 23, n.8. However, with respect to the harmless error issue, the majority in Fulminante argued convincingly that Chapman does not represent what it appears to represent. See infra notes and accompanying text; see also Yale Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and Due Process Values, 61 MICH. L. REV. 219, 236 (1962) (citing supporting authority for automatic reversal for coerced confessions). 7. See, e.g., Florida v. Bostick, 111 S. Ct (1991) (random questioning of bus passenger is not per se unlawful); Florida v. Jimeno, 111 S. Ct (1991) (consent to search a car presumptively extends to closed containers within the car); California v. Acevedo, 111 S. Ct (1991) (court extended no-warrant rule applicable to cars to include any container found inside car); see also County of Riverside v. McLaughlin, 111 S. Ct (1991) (48 hours is soon enough to bring an arrested person before a magistrate).

3 1993] ARIZONA v FULMINANTE harmless error test to coerced confessions, and the decision illustrates that the harmless error test will seldom be satisfied within this context. II. FACT A. The Murder Of Jeneane Michelle Hunt On September 14, 1982, Oreste Fulminante telephoned the Mesa, Arizona, Police Department to report his eleven year old stepdaughter, Jeneane Michelle Hunt, missing.' Fulminante had been taking care of Jeneane while his wife, Jeneane's mother, was in the hospital for surgery. 9 Two days later, on September 16, 1982, the mutilated and partially decomposed body of Jeneane was found in a desert area just east of Mesa." 0 She had been shot twice in the head from point blank range with a large caliber weapon, and a cloth ligature, or garment rag, was tied around her neck.' 1 Due to the decomposed condition of Jeneane's body, it was unclear whether she had been sexually assaulted. 12 As a result of several inconsistencies in Fulminante's statements to police, 3 and his recent purchase of an interchangeable barrel for his.357 revolver, 1 4 Fulminante became a suspect in the murder investigation. When no charges were filed against him, Fulminante left Arizona for New Jersey, where he was later convicted of an unrelated 8. Fulminante, I11 S. Ct. at Id. 10. Id. 11. Id. A pathologist testified that although the ligature found around Jeneane's neck did not contribute to her death, it appeared to have been used to inflict non-fatal choking prior to her death. Petitioner's Brief at 2, Arizona v. Fulminante, 111 S. Ct (1991) (No ). 12. Fulminante, II1 S. Ct. at This conclusion was reached even though Jeneane's body was found with her jeans unzipped and pulled down over her buttocks. Petitioner's Brief at 2, Fulminante (No ). 13. Fulminante, 111 S. Ct. at Following the discovery of Jeneane's body, Fulminante told police investigators that he had had a good relationship with Jeneane. Appendices to Petition For Writ Of Certiorari at A7, Fulminante (No ). However, police later learned from Jeneane's mother that Fulminante and Jeneane had never gotten along with each other. Fulminante even threatened to "kill [Jeneane's] fucking ass" on at least one occasion. Petitioner's Brief at 3, Fulminante (No ). 14. When Jeneane's mother returned from the hospital on September 14 she noticed that Fulminante's.357 revolver was missing from their bedroom. Petitioner's Brief at 3, Fulminante (No ). She also told police that Fulminante once said that a good way to get away with a murder would be to switch barrels on a.357 revolver "because then the ballistics would be hard to make and it's an easy switch." Id. The Arizona police later discovered that the day before Jeneane's disappearance Fulminante traded a rifle in exchange for an extra barrel for his.357 revolver. Id.

4 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 federal gun charge 5 and incarcerated in the Ray Brook Federal Correctional Institution of New York. 6 B. Fulminante's Confession While in the Raybrook facility, Fulminante befriended fellow inmate Anthony Sarivola, a reputed organized crime member. 17 Unbeknownst to Fulminante, Sarivola was a paid informant for the Federal Bureau of Investigation. 8 When rumors began to circulate within the prison that Fulminante was suspected of murdering a child back in Arizona, he began receiving "rough treatment" from the other inmates.' 9 Realizing Fulminante's vulnerability, 0 Sarivola offered to protect Fulminante from his fellow inmates on the condition that Fulminante tell him the truth 2 ' about whether he killed Jeneane. z Fulminante then admitted that he had driven Jeneane to the desert on his motorcycle, where he choked her, sexually assaulted her, 3 and 15. Fulminante was convicted of "possession of a firearm by a felon." Arizona v. Fulminante, 111 S. Ct. 1246, 1250 (1991). 16. Id. 17. Id. Sarivola was a former police officer serving time for his involvement in organized crime, specifically a loansharking scheme. Id. 18. Id. The use of informants in the discovery of evidence is within the bounds of the Constitution. See, e.g., Kuhlmann v. Wilson, 477 U.S. 436 (1986); United States v. White, 401 U.S. 745 (1971); Hoffa v. United States, 385 U.S. 293 (1966). 19. Known child-murderers are customarily ostracized within a prison ecosystem, and in some cases, susceptible to violence. Brief for Respondent at 3, Fulminante (No ). Sarivola explained this hostility by stating: "most criminals.., have some sort of scruples, regardless of what most people believe; and children [are] a very soft point... " Id. 20. The Court noted that Sarivola was well aware that Fulminante had been receiving rough treatment from the other inmates. Id. at The Court also noted that both Fulminante's small physical stature (5 ft. 3 in., 118 lbs.), and previous inability to adapt to prison life contributed to the degree of danger he faced. Id. at 1252 n.2. However, the dissent raised the argument that at Fulminante's Motion to Suppress hearing he stipulated to the facts that "[a]t no time did [he] indicate he was in fear of the other inmates nor did he ever seek Mr. Sarivola's protection." Arizona v. Fulminante, 111 S. Ct. 1246, 1262 (1991) (Rehnquist, C.J., dissenting). In addition, Fulminante was no stranger to trouble; he had six prior felony convictions and had been incarcerated on three prior occasions. Id. 21. Upon two previous inquiries by Sarivola, Fulminante denied any involvement in Jeneane's death. Fulminante, 111 S. Ct. at On one occasion Fulminante told Sarivola that Jeneane was killed by bikers looking for drugs, and on another occasion told Sarivola that he was unaware of what had happened to Jeneane. Id. 22. Id. The alleged coercion arose from the statement: "'You have to tell me about it,' you know. I mean, in other words, 'For me to give you any help.'" Id. Chief Justice Rehnquist's dissent on the coercion issue pointed out that at no time did Sarivola threaten or demand Fulminante to confess. Fulminante, 111 S. Ct. at 1263 (Rehnquist, C.J., dissenting). Instead, Sarivola simply requested that Fulminante tell him the truth about the matter. Id. 23. Fulminante told Sarivola that he forced Jeneane to perform oral sex on him. Petitioner's Brief at 5, Fulminante (No ).

5 1993] ARIZONA v FULMINANTE made her beg for her life, before shooting her twice in the head with his.357 revolver. 24 One month later Sarivola was released from prison, and six months thereafter, in May of 1984, Fulminante was released. 25 Upon Fulminante's release, Sarivola and his fiancee Donna picked Fulminante up at a bus terminal. 26 When Donna 27 asked Fulminante why he was not returning to his family in Arizona, Fulminante confessed for the second time that he sexually assaulted and murdered Jeneane. 2 s A. Fulminante's Murder Trial III. PROCEDURAL HISTORY On the strength of Fulminante's two confessions, the State of Arizona indicted Fulminante on September 4, 1984, for the first-degree murder of Jeneane Hunt. 29 Prior to trial, Fulminante filed a Motion to Suppress both the confession he made to Anthony Sarivola while in prison, and the confession he made to Donna Sarivola following his release from prison. He argued that his first confession was coerced by Anthony Sarivola's promise to protect him from the inmates, and that his second confession to Donna Sarivola was the "fruit" 30 of the previous unconstitutional confession. 3 1 The trial court, finding that the 24. Id. Fulminante told Sarivola he did it because Jeneane was a "little bitch" and she was always in his way with his wife. Petitioner's Brief at 5, Fulminante (No ). 25. Id. 26. Petitioner's Brief at 5, Fulminante (No ). Donna and Anthony Sarivola were married in June of Id. at 5 n.l. 27. Donna and Fulninante had never previously met. Arizona v. Fulminante, I 11 S. Ct. 1246, 1259 (1991). 28. Id. at Fulminante apparently referred to Jeneane as "the fucking little kid that had got in the way of him and his wife," and boasted that some day he was going to go back to Arizona and "[urinate] on her grave." Petitioner's Brief at 6, Fulminante (No ). 29. Fulminante, Ill S. Ct. at The "fruit of the poisonous tree" doctrine operates to exclude otherwise probative evidence if it is obtained as a result of unlawful police conduct. See Wong Sun v. United States, 371 U.S. 471 (1963) (statements made by defendant while being unlawfully arrested were the "fruit" of the agents' unlawful action, thus excluded from evidence). The phrase "fruit of the poisonous tree" was first coined in 1939 by Justice Frankfurter in Nardone v. United States, 308 U.S. 338 (1939). Unlike Miranda v. Arizona, 384 U.S. 436 (1966), and the Fourteenth Amendment to the U.S. Constitution, the "fruit of the poisonous tree" doctrine does not automatically exclude the evidence, but rather inquires whether the subsequent discovery was directly attributable to government exploitation of the illegallyseized information, or whether it was merely obtained in a separate manner attenuated from the original taint. Wong Sun, 371 U.S. at Fulminante, III S. Ct. at Fulminante also claimed that his Fifth Amendment rights were violated by Sarivola's custodial interrogation without first advising him of his rights as required by Miranda, 384 U.S 436. Petitioner's Brief at 6 n.2,

6 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 confessions were not coerced, denied the Motion to Suppress. 32 Both confessions were introduced at trial, and on December 19, 1985, Fulminante was convicted of murdering Jeneane Hunt, and sentenced to death. 33 B. Fulminante's Appeal On appeal, 34 Fulminante argued that his confession to Anthony Sarivola was coerced, and its admission at trial violated his rights to due process under the Fifth 35 and Fourteenth 36 Amendments of the United States Constitution. 37 While the Arizona Supreme Court agreed that Fulminante's first confession was coerced, and thus should have been suppressed at trial, the court, in its initial opinion, held that because the first confession was cumulative in respect to the second confession, the error was harmless beyond a reasonable doubt. 3 ' How- Fulminante (No ). However, the Supreme Court rejected a similar argument in Illinois v. Perkins, 110 S. Ct (1990), holding that Miranda rights do not apply to undercover interrogations. Perkins, 110 S. Ct. at "Conversations between suspects and undercover agents do not implicate the concerns underlying Miranda." Id. at In addition, Fulminante could not have asserted a violation of his Sixth Amendment right to counsel because at the time of his confession he had not yet been charged. See id. at 2399; cf. Massiah v. United States, 377 U.S. 201 (1964) (incriminating statements elicited by federal officers and made by defendant after he was charged, in the absence of his attorney, ruled unconstitutional under Sixth Amendment right to counsel). 32. Fulminante, Ill S. Ct. at Id. The Court found that because the murder was so heinous, cruel, and depraved, Fulminante should be sentenced to death. Petitioner's Brief at 7, Arizona v. Fulminante, Ill S. Ct (1991) (No ). 34. Fulminante had a right to an automatic appeal to the Arizona Supreme Court pursuant to ARIz. R. CRIM. P. 31.2(b). 35. The Fifth Amendment to the United States Constitution provides in pertinent part: No person.., shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law... U.S. CONsT. amend. V. 36. The Fourteenth Amendment to the United States Constitution provides in pertinent part: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law... U.S. CONST. amend. XIV, Arizona v. Fulminante, 778 P.2d 602 (Ariz. 1988). 38. Id. at 611. The Arizona Supreme Court reasoned that the jury would have had the same basic evidence to convict Fulminante even if the first confession had been excluded. Id. The court also specifically rejected Fulminante's argument that the confession to Donna Sarivola should have been excluded based upon the "fruit of the poisonous tree" doctrine. Id.; see supra note 30 for a discussion of the "fruit of the poisonous tree" doctrine. The Arizona Supreme Court reasoned that any taint from the first confession was significantly reduced because the second confession occurred six months after Fulminante's

7 1993] ARIZONA v FULMINANTE ever, upon Fulminante's Motion for Reconsideration, the court relented, issuing a supplemental opinion reversing Fulminante's conviction on the grounds that the harmless error doctrine was inapplicable to coerced confessions. 39 Due to differing views in the state and federal courts concerning this issue, the United States Supreme Court granted the State's petition for certiorari. 4 ' C. United States Supreme Court Decision The Supreme Court framed its case analysis around the resolution of three sequential issues: 41 (1) whether Fulminante's first confession was coerced; (2) whether harmless error analysis is applicable to the erroneous admission of a coerced confession; and if so, (3) whether the error in Fulminante's case was indeed harmless. The Court was closely divided on all three issues, as each was decided by a 5-4 vote. Five justices found the first confession to have been coerced, 42 a different group of five justices 4 3 found that harmless error analysis was applicable to coerced confessions,' and five justices 4 5 found that, in Fulminante's case, the admission of the first confession was not harmoriginal confession, and subsequent to his release, at a time when he no longer needed Anthony Sarivola's protection. In addition, the second confession arose from casual conversation with someone who was not an agent of the government. Fulminante, 778 P.2d at Id. at 627. The court stated: "It is clear that federal constitutional law, as interpreted, pronounced, and applied by the United States Supreme Court and other federal courts compels us to conclude that the receipt of the original coerced confession may not be considered harmless error." Id. In reversing the conviction, the court ordered that Fulminante be retried without the use of his original confession to Sarivola. Id. 40. Arizona v. Fulminante, 494 U.S (1990). 41. The Court has been criticized for unnecessarily framing three issues when the single question simply could have been whether the defendant's conviction should be reversed because of the admission of the coerced confession. See Lewis J. Linman, 'Fulminante': Vote Cycling and the Court, N.Y.L.J., April 3, 1991, at 2 (arguing that the Court's decision to address three issues sequentially leads to perverse results). If the ultimate question were asked of each Justice first, the majority of the Court would clearly have upheld Fulminante's conviction: four justices felt the state had not coerced the confession (Chief Justice Rehnquist, Justices O'Connor, Kennedy, and Souter), and a fifth felt that the confession was coerced, but that its admission at trial was a harmless error (Justice Scalia). Id.; see infra note Justices White, Stevens, Blackmun, Marshall, and Scalia. Arizona v. Fulminante, 111 S. Ct. 1246, 1252 (1991). 43. The group included four dissenters on the coercion issue (Chief Justice Rehnquist, Justices O'Connor, Kennedy, and Souter) and Justice Scalia. Id. at Id. It is in this context that Chief Justice Rehnquist won the war of harmless error referred to in the article's title. See infra note 120 for a discussion of Rehnquist's thirtynine year ambition to establish harmless error analysis for coerced confessions. 45. The four dissenters to the harmless error issue were Justices White, Stevens, Blackmun, and Marshall plus Justice Kennedy. Fulminante, 111 S. Ct. at 1261.

8 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 less, and thus reversed the conviction. 46 The end result was that Fulminante, who confessed twice to sexually assaulting and murdering an eleven year old child, was granted a new trial in which the first confession could not be introduced into evidence. 47 A. Coercion Issue IV. ANALYSIS In Brown v. Mississippi, 48 the Supreme Court adopted the conventional rule that the admission of a coerced confession at a criminal trial violates the Due Process Clause of the Fourteenth Amendment. 4 9 Determining what type of governmental conduct rises to the level of coercion, however, has been somewhat problematic. The general legal standard for coerced confessions is whether, under the "totality of circumstances," 50 the defendant made the confession on his own free will." Due to the inherent ambiguity and open-ended nature of this 46. Id. at It is in this context that Rehnquist lost the battle against Oreste Fulminante. 47. A convoluted bench produced the following bizarre result: five justices believed the conviction should be upheld, but because Justice Kennedy cast his vote accepting the majority's resolution of the third issue (that admission of Fulminante's first confession was reversible error) Fulminante was awarded a new trial. See supra note 41. Essentially, Justice Kennedy asserted that a confession he believed to be admissible was nonetheless reversible error once admitted. Fulminante, 111 S. Ct. at ; see supra text accompanying notes U.S. 278 (1936). 49. "[T]he use of the [coerced] confessions.., was a clear denial of due process." Id. at The court must assess "the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation." Schneckloth v. Bustamone, 412 U.S. 218, 226 (1973). For a critical view of the "totality of the circumstances" standard see Welsh S. White, Police Trickery In Inducing Confessions, 127 U. PA. L. REV. 581, 623 (1979) (inherent difficulty in assessing the subjective effect on the accused suggests that with respect to this issue the standard does not effectively protect constitutional rights). 51. See Greenwald v. Wisconsin, 390 U.S. 519, 521 (1968) (per curiam) ("totality of circumstances" must reveal that a suspect's confession was "the product of his free and rational choice"); Culombe v. Connecticut, 367 U.S. 568, 602 (1961) ("if [a defendant's] will has been overborne and his capacity for self-determination [has been] critically impaired, [then] the use of his confession offends due process."); Watts v. Indiana, 338 U.S. 49, 55 (1949) ("Protracted, systematic and uncontrolled subjection of an accused to [police] interrogation... is subversive of the accusatorial system."). The ultimate issue of coercion is a legal question requiring independent federal determination. Miller v. Fenton, 474 U.S. 104, 110 (1985). All states determine the voluntariness of a confession by either the "orthodox" procedure or the "Massachusetts" procedure. WELSH S. WHITE & JAMES J. ToMKOVICZ, CRIMINAL PROCEDURE: CONSTITUTIONAL CONSTRAINTS UPON INVESTIGATION AND PROOF (1990). Under the "orthodox" procedure the trial judge alone makes the determination of

9 1993] ARIZONA v FULMINANTE standard, however, there is a wealth of confusing and conflicting jurisprudence concerning what level of activity amounts to a coerced confession. 5 2 For example, the standard has been criticized as overinclusive, and failing to accurately reflect the language used within it. 5 3 Despite this ambiguity, it is safe to conclude that any confession obtained by a credible threat of physical violence will be deemed coerced. 5 4 Acknowledging that the question of coercion was a close one, a majority of the Supreme Court held that Fulminante's confession was coerced because he was in fear of a "credible threat" of physical violence, 55 absent protection from Anthony Sarivola. 5 6 An analogy can voluntariness. See Jackson v. Denno, 378 U.S. 368, 378 (1964). The "Massachusetts" procedure, on the other hand, requires the judge to make the initial determination, and if admitted, the jury is allowed to decide on its own whether to consider it as evidence. See WHrrE & TOMKOVICZ, supra, at 459. In addition, the Federal Rules of Evidence require hearings concerning the admissibility of confessions to be conducted outside the presence of the jury. FED. R. EVID. 104(c). Also, under the Federal Constitution, the prosecution has the burden of showing by a preponderance of the evidence that the confession was voluntary. See Lego v. Twomey, 404 U.S. 477 (1972). 52. See Daniel J. Capra, Involuntary Confessions and Harmless Error, N.Y. L.J., May 10, 1991, at 3; see also Yale Kamisar, Mhat Is An "Involuntary" Confession? Some Comments on Inbau and Reid's Criminal Interrogation and Confessions, 17 RtrrGERS L. REV. 728, (1963) (characterizing "voluntariness" terminology as elusive and little more than a fiction). 53. A recent Federal Appeals Court decision expressed this sentiment by stating: Taken seriously it would require the exclusion of virtually all fruits of custodial interrogation, since few choices to confess can be thought truly "free" when made by a person who is incarcerated and is being questioned by... officers without the presence of counsel or anyone else to give him moral support. The formula is not to be taken seriously... Very few incriminating statements, custodial or otherwise, are held to be involuntary, though few are the product of a choice that the interrogators left completely free. United States v. Rutledge, 900 F.2d 1127, 1129 (7th Cir. 1990). See also Ashcraft v. Tennessee, in which it was stated: The term "voluntary" confession does not mean voluntary in the sense of a confession to a priest merely to rid one's soul of guilt... To speak of any confession of crime made after arrest as being "voluntary" or "uncoerced" is somewhat inaccurate, although traditional... Arrest itself is inherently coercive, and so is detention... A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser. 322 U.S. 143, 161 (1944) (Jackson, J., dissenting). 54. Donald A. Dripps, To Err Is Harmless, TRIAL, July 30, 1991, at The Court emphasized that coercion could be mental as well as physical. Arizona v. Fulminante, 111 S. Ct. 1246, 1253 (1991). "[Tlhe blood of the accused is not the only hallmark of an unconstitutional inquisition." Id. (quoting Blackburn v. Alabama, 361 U.S. 199, 206 (1960)). 56. Fulminante, 111 S. Ct. at The majority of the Court agreed with the Arizona Supreme Court's application of the "totality of the circumstances" standard. In applying

10 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 be made to the facts of Payne v. Arkansas, 57 where the Court found a confession was coerced because the police obtained it by threatening to leave a prisoner to the mercy of a violent mob outside the jailhouse. In the present case the majority found that fear of physical violence, due to the absence of protection from his friend (an FBI informant) Sarivola, motivated Fulminante to confess the first time. 58 The mere fact Fulminante refused to confess until offered protection suggests that the threats of violence were real. 59 More interesting, however, is the issue of attribution.' It was not Anthony Sarivola who created the coercive environment, he merely offered to protect Fulminante from its dangers. 61 The Supreme Court seemed to take the position that the possibility the inmates might kill Fulminante made Sarivola's promise unconstitutionally coercive.62 Sarivola (or the FBI for that matter) had no constitutional obligation to protect Fulminante from the other inmates. 63 Had Sarivola done nothing, Fulminante would have remained in jeopardy.' 4 Fulminante took the position that he would have been better off without Sarivola's intervention, seeming to indicate he would have been better off dead. 6 5 If Sarivola himself had propagated the rumors of Fulminante's involvement in the murder of a child in an attempt to induce a confession, this may have amounted to coercion. However, the factors the Supreme Court weighed to find coercion were entirely attributable to Fulminante himself, not Sarivola. 6 6 Fulminante's own actions put him this standard, the Court focused in on a number of factors that made Fulminante's confession coerced: (1) Fulminante was an alleged child murderer and was in extreme danger of physical harm at the hands of his fellow inmates; (2) Sarivola was aware that Fulminante had been receiving rough treatment; (3) Sarivola used his knowledge of these threats to induce a confession from Fulminante. Id U.S. 560 (1958). 58. Fulminante, 111 S. Ct. at Dripps, supra note 54, at Id. 61. Promises to help a defendant with a purely collateral issue are generally less coercive than governmental promises of leniency in an imminent criminal proceeding. Miller v. Fenton, 796 F.2d 598, 610 (3d Cir. 1986). Such inducements of lenient treatment at trial are common in the criminal justice system, and are even encouraged. United States v. Long, 852 F.2d 975, 980 (7th Cir. 1988) (Eastbrook, J., concurring). 62. Dripps, supra note 54, at Although the prison authorities had a duty to protect Fulminante while he was incarcerated, see Deshaney v. Winnebago County DSS, 489 U.S. 189, n.5 (1989), Sarivola and the Federal Bureau of Investigation did not. See Dripps, supra note 54, at Id. 65. Id. at Sarivola testified that he believed Fulminante's time was "running short," and that Fulminante would have left the prison horizontally. Fulminante, 111 S. Ct. at See supra note 56 and accompanying text for an elaboration of the factors the majority of the Court believed lead to coercion.

11 1993] ARIZONA v FULMINANTE in an unenviable position, and the Supreme Court nonetheless believed it was unconstitutional to offer him assistance. 67 In addition, the Court seemed to take the position that Fulminante was a helpless, feeble recreant, completely foreign to the potential dangers within a prison environment. On the contrary, with six prior felony convictions," resulting in three prior incarcerations, Fulminante was anything but a faint-of-heart poltroon whose will was easily overborne. 69 Fulminante was a forty four year old hardened criminal, well-acclimated to surviving within a prison environment. 7 " In fact, the only concern Fulminante ever expressed to Sarivola was not about the other prisoners, but about the possibility that the Arizona police would eventually trace Jeneane's murder to him. 71 The Court's decisive reliance on the precedent of Payne v. Arkansas 72 can also be questioned. The cases are clearly distinguishable for several reasons. First, the interrogating official in Payne was a uniformed police officer who clearly had an obligation to protect the defendant from the angry mob awaiting him outside. 73 Sarivola had no such obligation to protect Fulminante. 74 Second, in Payne, the police officer was clearly in a position to protect the defendant from the angry mob, whereas in Fulminante there was no significant proof that Fulminante believed Sarivola had the power to protect him. 7 Third, it was clearly a stretch to compare the threat facing Fulminante with that of Payne, where there was an angry lynch mob right outside the jailhouse door. 76 The imminency of the potential danger posed by the two situations is clearly distinguishable. There was no evidence that Fulminante was going to be harmed the particular day he con- 67. See supra note 42 and accompanying text. 68. Including a conviction in New Jersey for impairing the morals of a child. Petitioner's Brief at 18, Fulminante (No ). 69. "Fulninante was an experienced habitue of prisons, and presumably able to fend for himself." Arizona v. Fulminante, 111 S. Ct. 1246, 1263 (Rehnquist, C.J., dissenting) (1991). 70. "What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal." Stein v. New York, 346 U.S. 156, 185 (1953). Fulminante was neither young, weak, nor fearful. Petitioner's Brief at 20, Fulminante (No ). This should have been a prominent factor within the "totality of the circumstances" analysis, however, the majority on the coercion issue largely ignored this fact. 71. Petitioner's Brief at 20, Fulminante (No ). 72. See supra text accompanying note See Capra, supra note 52, at Id. 75. Id. There was only a brief mention that Sarivola claimed he was affiliated with New York organized crime. This can not be compared to Payne, where it was a uniformed police officer whose ability to protect the defendant was apparent and unquestionable. Id. 76. Id.

12 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 fessed, whereas Payne was certain to be injured or killed the moment he walked out of the jailhouse door. Only a short time ago, the Supreme Court held in Colorado v. Connelly" that a confession caused by insanity was not coerced. 7 In Connelly, the Court seemed to conclusively frame the coercion issue to focus on "police conduct," 7 9 as opposed to focusing on the mindset of the defendant.so The Fulminante decision moves away from this focus, and seems to represent the idea that even if the police act appropriately, a confession may still be unconstitutional. 8 " In light of this view, it appears that despite the accusations by criminal rights advocates, 2 the Court, at least on the coercion issue, took an extremely generous posture toward the accused. 8 3 While preserving the constitutional ban on admitting coerced confessions into evidence, "the majority imposed far more stringent controls on the types of government conduct that can be used to obtain a confession." 8 4 Fulminante stipulated that he was neither fearful of the other inmates, nor did he seek Sarivola's protection. 85 Sarivola neither threatened Fulminante, nor demanded that he confess, and Fulminante was always free to cease conversing with Sarivola. 86 On these facts, a U.S. 157 (1986). 78. Id. at 167. The Court held that a confession was not coerced despite the fact that the defendant felt psychologically compelled by internal forces to confess. The Court also held that a confession could not be involuntary in the absence of impermissible police conduct. Id. This holding was consistent with the Supreme Court cases that emphasized that involuntary confessions should be excluded regardless of their reliability if the methods used to extract them were improper. See Jackson v. Denno, 378 U.S. 368 (1964). 79. A court may not find a confession coerced unless it first finds the presence of "coercive police activity." Connelly, 479 U.S. at Dripps, supra note 54, at Id. 82. See supra note 3 and accompanying text. 83. Bruce Fein, Crying Wolf on Coerced Confession Cases, N.J.L.J., April 18, 1991, at 18 (arguing that Fulminante does not threaten the erosion of the constitutional guarantee against compulsory self-incrimination). 84. Capra, supra note 52, at Arizona v. Fulminante, 111 S. Ct. 1246, 1262 (1991) (Rehnquist, C.J., dissenting). 86. Id. at Fulminante's confession to his pseudo-friend Sarivola in no way resembled a police-dominated custodial interrogation likely to produce "inherently compelling pressures which work to undermine 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). The fact that Fulminante made a poor choice to confide in Sarivola does not render his confession coerced. See Hoffa v. United States, 385 U.S. 293 (1966) (no constitutional protection against misplaced confidences). "The risk of being.., betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak." Lopez v. United States, 373 U.S. 427, 465 (1963) (Brennan, J., dissenting); see also

13 1993] ARIZONA v. FULMINANTE majority of the Court 7 found the confession to be coerced. 88 Therefore, the general media impression that the Fulminante decision was completely insensitive to the rights of the accused 89 is unpersuasive at best. 90 This expansive finding of coercion will likely have a chilling effect on police interrogation tactics, resulting in increased protection of criminal rights. 91 Prior to Fulminante, lower courts were extremely tolerant of police tactics used to obtain confessions. 92 Essentially, a confession would not be found coerced unless the police tactics were so coercive as to "shock the conscience." 93 The Fulminante decision signals an end to this obscure criterion, thus increasing controls on the government's authority to interrogate. 94 Police officers will have to be far more circumspect about what they threaten or promise after Fulminante. In cases where any type of threat or promise is utilized by police, the government will have a difficult time showing the confession was voluntarily obtained. 95 Despite the wide array of criticism, the Fulminante coercion holding seems to represent a higher level of protection against unlawful police extractions of confessions than has previously existed. 96 B. Harmless Error Issue Although the United States Constitution guarantees a criminal Joseph D. Grano, Voluntariness, Free Will, and the Law of Confessions, 65 VA. L. REv. 859, 917 (1979). The use of inducements or trickery by police does not violate Due Process. The government "may...encourage [the defendant] to believe that he will benefit, either psychologically or legally, from cooperation." Id. 87. See supra note Fulminante, IlII S. Ct. at See supra note 3 and accompanying text. 90. See Fein, supra note 83, at Capra, supra note 52, at See, e.g., Green v. Scully, 850 F.2d 894 (2d Cir. 1988) (confession induced by police threats of electric chair and false statements that defendant's fingerprints were at scene was voluntary); Sumpter v. Nix, 863 F.2d 563 (8th Cir. 1988) (upholding admission of confession made after a seven hour interrogation of a defendant with an I.Q. of 89); McCall v. Dutton, 863 F.2d 454 (6th Cir. 1988) (confession given during interrogation by police with their guns drawn was voluntary). Daniel J. Capra, Professor of Law at Fordham University School of Law, contends that the harsh consequences of automatic reversal fostered such judicial tolerance for coercive conduct. Capra, supra note 52, at 8. The cost of finding a confession coerced was so great that it often precluded such a finding from ever happening. Id. 93. Capra, supra note 52, at Id. at Id. Fulminante clearly indicates that a threat can be "credible" on minimal evidence. See supra note Capra, supra note 52, at 8.

14 188 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 defendant a fair trial, it does not guarantee a perfect trial. 97 In accordance with this basic tenet, it is a fundamental principle of appellate procedure that two elements are required to warrant reversal on appeal: (1) error; and (2) prejudice to the party appealing. 9 " If an error at the trial level has not resulted in prejudice 9 9 to the appellant, it is deemed "harmless error," and is not grounds for reversal." In order to declare an error harmless, the appellate court must be able to profess a belief that it was harmless "beyond a reasonable doubt."" ' Prior to 1967, the general assumption was that an error concerning a constitutional right could never be harmless, and thus required mandatory reversal However, in the landmark case of Chapman v. California,' 3 the Supreme Court moved away from this assumption, adopting the general rule that a constitutional error does not necessarily require automatic reversal of a conviction." See Delaware v. Van Arsdell, 475 U.S. 673, 681 (1985) (stressing that the Constitution entitles criminal defendant to a fair trial, not a perfect one). 98. See FED. R. CRIM. P. 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights should be disregarded."); see also 28 U.S.C (1988) ("On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties."). 99. "Prejudicial error" is defined as "[e]rror substantially affecting appellant's legal rights and obligations. One which affects or presumptively affects the final result of the trial." BLACK'S LAW DICTIONARY 1179 (6th ed. 1990) (citations omitted) See generally 5A C.J.S. Appeal & Error 1676 (1958). The policy behind the harmless error provision is to efficiently administer justice and avoid the expense of useless litigation. Id. Harmless error analysis prevents "setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial." Chapman v. California, 386 U.S. 18, 22 (1967). Every jurisdiction has now adopted some form of the harmless error rule. Id. But see Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 COLUM. L. REv. 79, (1988) See Chapman, 386 U.S. at 24; United States v. Hastings, 461 U.S. 499, (1983) (indicating a continued adherence to "beyond a reasonable doubt" standard). The Court's judgment on the harmlessness of an error must be based on their own reading of the record, and what seems to have been the probable impact of the challenged evidence on the minds of an average jury. Harrington v. California, 395 U.S. 250, 254 (1969) See Dripps, supra note 54, at 84; see, e.g., Kotteakos v. United States, 328 U.S. 750, (1946) (constitutional error warrants mandatory reversal); see also ROGER TRAYNOR, THE RIDDLE OF HARMLESS ERROR 3 (1970). "There was a time in the law... 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 entirely surrounded by booby traps." Id U.S. 18 (1967) (prosecutor commented on defendant's failure to testify, violating his privilege against self-incrimination) Id. at 22. "[Tlhere may be some constitutional errors which in the setting of a case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction."

15 1993] ARIZONA v. FULMINANTE Since Chapman, the Court has applied harmless error analysis to most constitutional errors on appeal, 105 recognizing that most constitutional errors can be harmless under certain circumstances. 0 6 However, the Supreme Court has stopped short of recognizing that all constitutional errors are subject to harmless error analysis On the contrary, the Court has maintained an exclusive group of constitutional errors that can never be harmless, and thus require mandatory reversal even though there may be no reasonable doubt the defendant is guilty outside the unconstitutional evidence.' 08 These so-called "untouchables" include: (1) total deprivation of the right to counsel; 109 (2) biased judge; 110 (3) unlawful exclusion of members of the defendant's race from the grand jury; 1 (4) violation of the right of self-representation at trial;" 2 and (5) violation of the right to a public trial. 113 As for coerced confessions, the Court implied, prior to Fulminante, that they belonged in the exclusive class of constitutional errors that can never be harmless." 4 In Chapman, the Court declared "our prior cases have indicated that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error,"" ' 5 citing in a footnote the coerced confession case of Payne v. Arkansas." 6 In Payne, the Court held that "even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence.., of the coerced confession vitiates the judgment because it violates the Due 105. Writing for the majority on the harmless error issue, Chief Justice Rehnquist listed a vast array of cases where the Court applied harmless error analysis to constitutional errors. Fulminante, 111 S. Ct. at 1263; see, e.g., Clemons v. Mississippi, 110 S. Ct (1990) (unconstitutionally overbroad jury instructions at the sentencing stage of a capital case); Pope v. Illinois, 481 U.S. 497 (1987) (jury instructions misstating an element of the offense); Delaware v. Van Arsdell, 475 U.S. 673 (1986) (restricting a defendant's right to cross-examine a witness for bias in violation of the Sixth Amendment's Confrontation Clause); Milton v. Wainwright, 407 U.S. 371 (1972) (confession obtained in violation of Massiah v. United States, 377 U.S. 201 (1964)) The court must be able to declare that an error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967) See cases cited infra notes and accompanying text for a comprehensive list of errors that can never be harmless Id Gideon v. Wainwright, 372 U.S. 335 (1963) Tumey v. Ohio, 273 U.S. 510 (1927) Vasquez v. Hillery, 474 U.S. 254 (1986) McKaskle v. Wiggins, 465 U.S. 168 (1984) Waller v. Georgia, 467 U.S. 39 (1984) See Chapman v. California, 386 U.S. 18, 23 n.8 (1967) Id. at U.S. 560 (1958); see supra text accompanying notes

16 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 Process Clause of the Fourteenth Amendment."' 17 However, according to the Fulminante majority on the harmless error issue, 118 these cases do not in fact represent what they appear to. 119 In writing the majority decision on the harmless error issue, Chief Justice Rehnquist triumphed in a life-long struggle that dates back to his days as a young Supreme Court law clerk.' 20 The Chief Justice declared that coerced confessions are not within the exclusive class of constitutional errors requiring mandatory reversal, but are instead subject to harmless error analysis.' 2 ' Chief Justice Rehnquist argued convincingly that the Court had never really decided that coerced confessions could not be subject to harmless error analysis.' 22 The Chapman decision, he argued, relegated reference to the coerced confession/harmless error issue to a footnote, as a historical reference, not an explicit holding. 123 Also, the case cited in the Chapman footnote as the coerced confession example, Payne v. Arkansas,' 24 was decided prior to the adoption of the contemporary "beyond a reasonable doubt" harmless error test developed in the Chapman decision. The Payne decision instead involved an analysis using a more lenient "sufficient evidence" harmless error test. 125 Since "sufficient evi Payne, 356 U.S. at See supra notes and accompanying text See infra notes and accompanying text See David G. Savage, Rehnquist Wins Confession Battle, L.A. TIMES, Mar. 30, 1991, at A2. In 1952, a young law clerk for Justice Robert H. Jackson urged the Supreme Court to adopt a new rule that would uphold some criminal convictions despite evidence of a coerced confession. That young law clerk was William H. Rehnquist, the reigning Chief Justice of the Supreme Court. Id. In a memorandum discovered in the late Justice Jackson's papers, young Rehnquist wrote: "[D]efendants who are as 'guilty as sin' should not go free simply because of a 'technical' mistake by prosecutors or police...'the ivory tower jurisprudence... has weakened local law enforcement... It's been a boon to smart criminal lawyers.'" Id. He concluded the memo by stating: "'Let's hope it [will] come to an end.'" Id. Thirty-nine years later, it did Arizona v. Fulminante, 111 S. Ct. 1246, (1991) Id. at Id. "The language that '[a]lthough our prior cases have indicated,' coupled with the relegation of the cases themselves to a footnote, is more appropriately regarded as a historical reference to the holdings of these cases." Id. The error in Chapman was a comment on the defendant's failure to take the stand, not the admission of a coerced confession. Since only the explicit holding compels respect, the proposition that coerced confessions can never be harmless has not actually found its way into an explicit holding. Dripps, supra note 54, at 84. Prior to the Fulminante decision, the majority of judges who have served on the Supreme Court would probably agree that coerced confessions could never be harmless, but it is not easy to point to a specific case that holds such. Id U.S. 560 (1958); see supra text accompanying note Fulminante, 111 S. Ct. at The more liberal "sufficient evidence" harmless error test from Payne would make admission of a coerced confession virtually risk-free for the state, whereas the beyond a reasonable doubt harmless error test would not. Id. Thus,

17 1993] ARIZONA v FULMINANTE dence" and "beyond a reasonable doubt" are extremely different standards, "the Court in Payne never [really] decided that a coerced confession could not be subject to the strict[er] harmless error standard later adopted in Chapman." 12 ' 6 Therefore, Justice White's dissenting reference to the majority overruling a "vast body of precedent without a word" 1 27 is simply not an accurate reflection of the previously existing case law. 128 Chief Justice Rehnquist, in the heart of his harmless error opinion, formulated an innovative legal test for distinguishing between constitutional errors that are subject to harmless error analysis, and those that are not. The Chief Justice fashioned a principle dichotomy between "trial errors" 129 ' and "structural defects," 1 3 ' holding that the latter can never be harmless. 3 The distinction between these two modules focuses on an appellate court's ability to assess, or determine to a reasonable degree, the impact of the error on the outcome of a trial. "Trial error," Rehnquist declared, is an "error which occur[s] during the presentation of the case to the jury, and... may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reaunder Chapman the mere fact that there is "sufficient evidence" outside the coerced confession does not mean the judgement will be aflirmed. Under Payne, it does. See Capra, supra note 52, at Capra, supra note 52, at Fulminante, 111 S. Ct. at 1254 (White, J., dissenting). In Justice White's bitter dissenting opinion on the harmless error issue, where he took the unusual step of reading from the bench, he stated that the majority overruled a vast body of precedent without any justification, and in doing so dislodged one of the "fundamental tenets of our criminal justice system." Id. He later went on to declare that "permitting a coerced confession to be part of the evidence on which a jury is free to base its verdict of guilty is inconsistent with the thesis that ours is not an inquisitional system of criminal justice." Id. at However, less than six months after the Fulminante decision, Justice White recanted on his strong opinion, declaring: I don't think [the country] should overreact to that decision, and after all, this was-you can say simply an extension to the Chapman(ph) [sic] rule, that the harmless error rule applies to constitutional violations as well as to nonconstitutional violations... I don't think that this portends any great trend to eliminate exclusionary rules... I don't think that Fulminante is going to produce all those bad consequences that you might suggest. Justice Byron White, Supreme Court Justice Byron White Reviews the 1991 Supreme Court, Address at the 10th Circuit Judicial Conference (July 18, 1991), available in LEXIS, Nexis Library, Wires File Capra, supra note 52, at See cases cited supra note 105 for examples of "trial errors." 130. See cases cited supra notes and accompanying text for a comprehensive list of "structural defects." 131. Arizona v. Fulminante, 111 S. Ct. 1246, (1991).

18 192 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 sonable doubt." 13 2 A "structural defect," on the other hand, is an error affecting "the [entire] framework within which the trial proceeds, rather than simply an error in the trial process itself," 133 ' and thus permeates the entire process. 134 It is impossible for an appellate court to assess the impact of a "structural defect;" therefore harmless error analysis is not appropriate. 135 In addition, if a structural defect has occurred, "a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence" ' 136 despite overwhelming evidence of the defendant's guilt. 137 Applying this legal test to the facts of Fulminante, Rehnquist held that the admission of a coerced confession is a classic "trial error," and thus subject to harmless error analysis Rehnquist asserted that because harmless error analysis is applied to other constitutional rights similar in magnitude and importance, and involving the same level of police misconduct, there is no logical reason to treat coerced confessions differently. 139 For instance, the Court has held that the admission of evidence obtained in violation of the Fourth Amendment, 1 4 Fifth Amendment, 14 ' and Sixth Amendment 142 are all subject 132. Id. at Since trial errors are errors in the admission of evidence, they can be evaluated rather simply by reviewing the remainder of the evidence. Id. See cases cited supra note 105 for examples of "trial errors." 133. Fulminante, 111 S. Ct. at See cases cited supra notes for a comprehensive list of "structural defects." 135. Fulminante, 111 S. Ct. at Id. (quoting Rose v. Clark, 478 U.S. 570, (1986)) Capra, supra note 52, at 8. In precursory fashion, former Chief Justice Warren Burger alluded to such a distinction back in 1978 when he declared: "In 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 deliberations of the jury." Holloway v. Arkansas, 435 U.S. 475, 490 (1978) (citations omitted) Fulminante, 111 S. Ct. at Id. at The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONsT. amend. IV (emphasis added); see, e.g., Chambers v. Maroney, 399 U.S. 42 (1970) (applying harmless error to erroneous admission of evidence obtained in violation of the Fourth Amendment) See supra note 35 for pertinent text of Fifth Amendment; see, e.g., United States v. Hastings, 461 U.S. 499 (1983) (applying harmless error analysis to an improper comment on defendant's silence at trial in violation of the Fifth Amendment Self-Incrimination Clause) The Sixth Amendment to the United States Constitution provides in part:

19 1993] ARIZONA v FULMINANTE to harmless error analysis. Rehnquist argued that the inconsistent treatment of these similar constitutional violations cannot be supported by either deterrence concerns or the belief that coerced confessions are more fundamental violations. 143 "The impact of a confession obtained in violation of the Sixth Amendment has the same evidentiary impact as does a confession obtained in violation of a defendant's due process rights." 1 " The fact that a confession may be devastating to a defendant's case is not a valid reason to forego the harmless error test; it simply means that the reviewing court will find its admission not harmless, and the conviction will be reversed regardless. 145 Rehnquist's majority decision on the harmless error issue seems eminently sound. To allow the harmless error rule to govern improper governmental comments on an accused's right to silence, incriminating statements obtained without proper Miranda warnings, and confessions elicited in contravention of the Sixth Amendment right to counsel, but not coerced confession, is not only inconsistent, but illogical. 146 There is no persuasive reason why coerced confessions should be shielded from the same harmless error rule to which these other similar constitutional violations are exposed. 47 Certainly there is no valid justification for applying harmless error analysis to a confession In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. U.S. CONsT. amend. VI (emphasis added); see, e.g., Milton v. Wainwright, 407 U.S. 371 (1972) (applying harmless error analysis to admission of confession obtained in violation of Massiah v. United States, 377 U.S. 201 (1964), Court found it harmless beyond a reasonable doubt); Sattirewhite v. Texas, 486 U.S. 249 (1988) (applying harmless error analysis to admission of evidence at sentencing stage of capital case, in violation of the Sixth Amendment Counsel Clause); Moore v. Illinois, 434 U.S. 220 (1977) (applying harmless error analysis to admission of identification evidence in violation of Sixth Amendment Counsel Clause); Brown v. United States, 411 U.S. 223 (1973) (applying harmless error analysis to admission of out-of-court statement by non-testifying co-defendant in violation of Sixth Amendment Counsel Clause) Fulminante, 1ll S. Ct. at Id. at The Court went on to state: "[g]overnment misconduct that results in violations of the Fourth and Sixth Amendments may be at least as reprehensible as conduct that results in a [coerced] confession." Id.; see also Stein v. New York, 346 U.S. 156, 192 (1953) ("Coerced confessions are [no] more stained with illegality than other evidence obtained in violation of the law.") Fulminante, 111 S. Ct. at The Fulminante decision is a case in point. Although harmless error analysis was applied, a majority of the Court found the error not to be harmless, thus the conviction was reversed. See infra note 166 and accompanying text Fein, supra note 83, at Id.

20 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 obtained in violation of the Sixth Amendment, but not to a confession obtained in violation of the Due Process Clause, especially since the Sixth Amendment is applicable against the states only by incorporation through the Due Process Clause of the Fourteenth Amendment.' 48 Justice White's dissent merely characterized the trial error/ structure error distinction as vague, but he failed to offer any persuasive reason for treating the admission of coerced confessions differently from any other unconstitutionally obtained evidence.' 49 In a practical sense, the erroneous admission of a coerced confession could be considered harmless under two circumstances. First, if a coerced confession is admitted along with one 15 0 or several other voluntary confessions,"' the error could possibly be deemed harmless Roger Traynor once wrote, "[f]or all the usual shattering effect of a confession, its probative value is at the vanishing point if it is introduced after five other confessions have already been properly admitted."' 53 For example, assume that a criminal defendant is convicted of murder based on the admission of ten independent and complete confessions, 1 4 a video recording of the crime, inculpatory testimony of five eye witnesses, and self-disclosure of the body and murder weapon. If one of the ten confessions is later deemed coerced on appeal, common sense would indicate that there is ample, independent evidence, outside the single confession, to support the conviction. The dissenter's formalistic rule of automatic reversal would require the defendant to be inefficiently re-tried with the nine voluntary confessions and other highly inculpatory evidence. With escalating concerns over judicial resources within our litigious society, it is obvious which rule is the more logical.' Capra, supra note 52, at 8. Both provisions protect against governmental methods of extracting confessions, and the assessment of their impact can be determined in a similar manner. Id Id The Fulminante decision seems to represent that it will take more than one other properly admitted confession, since the error in this case was found not harmless despite the existence of a second confession. See infra text accompanying notes It is not uncommon for a criminal defendant to make more than one inculpatory statement. See United States v. Bayer, 331 U.S. 532 (1947); Oregon v. Elstad, 470 U.S. 298, nn.3-6 (1985) (Brennan, J., dissenting) (citing 50 lower court cases) Dripps, supra note 54, at ROGER TRAYNOR, THE RIDDLE OF HARMLESS ERROR 62 (1970) Further assume that five of these confessions were made to non-governmental individuals In United States v. Mechanik, 475 U.S. 66, 72 (1986), the Supreme Court discussed the adverse consequences of reversing a conviction: [R]eversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place;

21 1993] ARIZONA v FULMINANTE The second practical circumstance where a coerced confession could possibly be harmless is if the government's coercion results in a statement that falls short of a complete, or even truthful, confession." 5 6 In this circumstance, the tainted evidence may be only a small, dispensable portion of the government's case against the defendant. 157 For example, if the government is deemed to have coerced a false exculpatory story from the defendant, the conviction should not be automatically reversed in spite of overwhelming evidence of the defendant's guilt. The formalistic rule of automatic reversal in contexts where the remainder of the evidence can be assessed 158 benefits no one but the "guilty beyond a reasonable doubt" defendant. Such "technicality" justice undermines the essential policies of our judicial system, and perpetuates acridity and bitterness toward our legal process in general. There are other remedies and forms of deterrence mechanisms designed to oversee and punish police officials who over-step their boundaries during the interrogation of a criminal defendant. 1 9 The victims may be asked to relive their disturbing experiences. The '[p]assage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible.' Thus, while reversal 'may, in theory, entitle the defendant only to retrial, in practice it may reward the accused with complete freedom from prosecution,' and thereby 'cost society the right to punish admitted offenders.' Even if a defendant is convicted in a second trial, the intervening delay may compromise society's 'interest in the prompt administration of justice,' and impede accomplishment of the objectives of deterrence and rehabilitation. These societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial. 475 U.S. at 72 (citations omitted) (emphasis added) Dripps, supra note 54, at Id These are Chief Justice Rehnquist's "trial errors." See supra text accompanying note 123, and supra note 105 for examples of "trial errors." 159. Local police disciplinary boards (possibly consisting of both government officials and civilians), civil recourse (pursuant to 42 U.S.C. 1983), and criminal prosecution (pursuant to 18 U.S.C. 242) are all viable alternatives. See Roger Goldman and Steven Puro, Decertification of Police: An Alternative to Traditional Remedies for Police Misconduct, 15 HAsT. CONST. L. Q. 45, 51 (1987). The civil recourse statute, 42 U.S.C (1988), reads: Every person who, under code of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C (1988); see, eg., Rex v. Teeples, 753 F.2d 840 (10th Cir. 1985), cert. denied, 474 U.S. 967 (1985) (coercion of a confession recognized as valid civil cause of

22 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 Supreme Court has explicitly maintained that the Due Process Clause is not a code of ethics for police officers or prosecutors, but is only concerned with the manner in which a person is deprived of their iberty. '" The objective of the Due Process Clause is not to punish society for the misdeeds of overzealous police or prosecutors. Rather, it is to avoid an unfair trial of a criminal defendant. 6 ' If a coerced confession can be deemed harmless "beyond a reasonable doubt," due process has been maintained, and the accused has received a fair trial. No constitutional rights are threatened when "guilty beyond a reasonable doubt" is proven in the absence of the tainted confession. C. The Harmful Admission of Fulminante's Confession Having categorically adopted the harmless error analysis for coerced confessions, the Court was left with the onerous task of applying it to the facts of Fulminante's case. The Court's sole inquiry was whether the coerced confession to Anthony Sarivola was in fact harmless beyond a reasonable doubt. 162 The State of Arizona argued that Fulminante's more detailed second confession to Donna Sarivola, combined with corroborating physical evidence, 163 rendered admission of the coerced confession harmless beyond a reasonable doubt. The State relied on the reasoning of the Arizona Supreme Court's initial opinion where they held: action pursuant to 42 U.S.C. 1983); Griffin v. Strong, 739 F. Supp. 1496, (D. Utah 1990) (allegation of coerced confession recognized as valid cause of action under 42 U.S.C. 1983); see also John C. Jeffries Jr., Compensation for Constitutional Torts, 88 MICH. L. REV. 82 (1989). The criminal provision, 18 U.S.C. 242 (1982), reads: Whoever, under the color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States... shall be fined not more than $1,000 or imprisoned not more than one year, or both;... and if death results shall be subject to imprisonment for any term of years or for life. 18 U.S.C. 242 (1988) See Mabry v. Johnson, 467 U.S. 504, 511 (1984) (defendant's acceptance of a prosecutor's proposed plea bargain does not create a constitutional right to have bargain enforced) See Smith v. Phillips, 455 U.S. 209, 219 (1982) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)) (Due Process not violated by juror's employment application with District Attorney's Office during trial, or prosecutor's failure to reveal such) See Chapman v. California, 386 U.S. 18, 24 (1967). "[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id The second confession was corroborated by evidence concerning the type of wounds, the location of the body, the ligature around Jeneane's neck, and the presence of motorcycle tracks at the scene. Arizona v. Fulminante, 111 S. Ct. 1246, 1258 (1991).

23 19931 ARIZONA v FULMINANTE "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 [Fulminante]. ' " 1 The majority of the Court, however, did not agree. Calling for coerced confessions to be reviewed with "extreme caution," 165 ' Justice White wrote the majority opinion on the third issue, holding that because the State failed to meet its ponderous "beyond a reasonable doubt" burden of proof, Fulminante's conviction should be reversed Justice White rationalized the Court's decision by thoroughly analyzing the impact of the first confession, highlighting the lack of independence among the two confessions. 67 First, Justice White argued that the trial court and the State of Arizona acknowledged that successful prosecution of Fulminante depended on the jury believing both confessions Second, without the first confession, Justice White argued that the jury might not have believed the second confession was ever made Donna Sarivola's story of Fulminante's confession was highly suspect. She claimed that Fulminante, a complete stranger at the time, confessed to a heinous and brutal murder in response to a casual and open-ended question. 170 Moreover, although Donna Sarivola claimed she was "disgusted" by Fulminante's disclosure, she waited more than a year to report the confession, and even went on a second trip with Fulminante More importantly however, the physical evidence only partially corroborated the second confession. 72 Details concerning Jeneane Hunt being choked and sexually assaulted were not corroborated by the confession to Donna Sarivola. 173 In addition, details in the second confession concerning Fulminante's state of mind and motive were only 164. State v. Fulminante, 778 P.2d 602; 611 (Ariz. 1988); see supra note 38 and accompanying text "In the case of a coerced confession... the risk that the confession is unreliable, coupled with the profound impact that the confession has upon the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless." Fulminante, 111 S. Ct. at 1258 (emphasis added) Id. at Id. at Id. at Id. The jurors might have resolved doubts about the existence of the second confession by referring to the first confession. Id Id. at The confession was allegedly made in response to Donna's casual inquiry as to why Fulminante was not returning to his family in Arizona. Id Id. The Court noted that the jury could have believed Donna Sarivola had a motive to lie about the confession in order to assist her husband in receiving "significant benefits from federal authorities, including payment for information, immunity from prosecution, and eventual placement in the federal Witness Protection Program." Id Id Id.

24 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 corroborated by the now excluded first confession. 174 Therefore, the presence of the first confession made the crucial details concerning the crime more likely to be true by way of cross-corroboration with the 75 second confession.' Justice White's "extremely cautious" harmless error analysis seems accurate. In light of the persuasive factors outlined above, it is difficult to argue that the first confession was harmless beyond a reasonable doubt. Justice White's thorough articulation of the possible consequences of the first confession, combined with his overt message for reviewing courts to proceed with "extreme caution," 176 appears to indicate that the criminal defendant will receive the benefit of the doubt in close cases. Combining this phenomenon with the hefty "beyond a reasonable doubt" harmless error standard, it is clear that the Fulminante decision does not represent an erosion of any constitutional rights. The decision represents only the possibility that the admission of a coerced confession may be harmless In practice, however, it will take a long series of admissible confessions 17 1 to render a coerced confession harmless.' 79 If there is anything for civil libertarians to be concerned about it is the fact that three members of the highest court in the country could find the coerced confession harmless beyond a reasonable doubt.' 8 0 The dissenters' ability to find the error harmless in this set of facts is somewhat perplexing Ignoring the dependent factors within the two confessions, Chief Justice Rehnquist's paragraph-long dissent over-simplified the analysis by arguing that the mere presence of the second confession presented a "classic case of harmless error." ' 18 2 Justice Rehnquist's analysis never really considered the actual effect the coerced confession had on Fulminante's trial, and particularly the impact it may have had on the credibility of the second confession.' Id Capra, supra note 52, at See supra note Dripps, supra note 54, at See supra notes and accompanying text Dripps, supra note 54, at Chief Justice Rehnquist wrote the dissenting opinion on the third issue, joined by Justices O'Connor and Scalia. Arizona v. Fulminante, 111 S. Ct. 1246, 1261 (1991) (Rehnquist, C.J., dissenting). Justice Souter did not vote on the question whether the error was harmless One possible explanation is that two of these dissenters (Rehnquist, C.J., and O'Connor, J.) believed the first confession was not coerced to begin with. In a sense, this renders their harmless error analysis irrelevant. See supra notes and accompanying text for a discussion as to why they felt the first confession was not coerced Arizona v. Fulminante, 111 S. Ct. 1246, 1266 (1991) (Rehnquist, C.J., dissenting) Capra, supra note 52, at 8. It seems that Rehnquist's long awaited and difficult

25 1993] ARIZONA v FULMINANTE Although the Court's adoption of the harmless error principle for coerced confessions received the majority of the media publicity, 184 civil libertarians would have been more justified in directing their critical voice toward such indifferent enforcement of the harmless error principle by the three dissenters of the third issue. Although it was only a dissenting opinion, it illustrates the real danger of opening the harmless error door to coerced confession: that appellate court judges, eager to uphold criminal convictions, will overlook a substantial error. 185 If that is the concern, however, the criticism should be aimed at the general foundation of the harmless error principle, 186 not its application to a specific category of error. V. CONCLUSION Oliver Wendell Holmes, in perhaps his most famous observation of the legal system, once declared: "The life of the law has not been logic: it has been experience." 187 ' He meant that the growth and development of law has related more to practical lessons of history than abstract theoretical reasoning. The Fulminante decision, and the harmless error principle in general, clearly reflect the wisdom contained within Holmes' aphorism. In theory, automatic reversal of constitutional violations is a logical provision. However, history has confirmed that the consequences of automatic reversals frequently lead to both inequitable and unjustifiable results. Reversal of a conviction is simply unwarranted when the error does not affect the composition of the record. Coerced confessions remain a serious violation of the Fifth and Fourteenth Amendments after Fulminante. The decision does not encourage or condone third-degree interrogational tactics by police as popularly criticized. The extensive media criticisms of the Fulminante decision are unfair distortions of a ruling that actually represents a classic compromise between criminal rights advocates and crime-control groups. Criminal rights advocates receive both an increased standard of coercion, and an explicit message to reviewing courts to be "extremely cautious" when applying the harmless error test in the coerced confession context. Pro-law enforcement advocates, on the other hand, receive Chief Justice Rehnquist's long-coveted harmless fight to win the war of harmless error for coerced confessions created an eagerness to immediately find this error harmless See supra note 3 and accompanying text Capra, supra note 52, at For a critical view of the harmless error principle see Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 COLUM. L. REV. 79, (1988). See also Steven H. Goldberg, Harmless Error: Constitutional Sneak Thief, 71 J. CRIM. L. & CRIMINOLOGY 421, 427 (1980) OLIVER WENDELL HOLMES, THE COMMON LAW 1 (1881).