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Involuntary Statements

Why does it matter whether a statement is voluntary?

What’s so wrong about an involuntary statement?  And why should courts suppress them under the voluntariness doctrine?

“Tell me what I want to hear, so we can move forward.”

Marcus Tullius Cicero, Famous Roman Defense Lawyer. Roman law addressed voluntariness & the involuntary statement.

Marcus Tullius Cicero, Famous Roman Defense Lawyer. Roman law addressed voluntariness & involuntary statements.

How reliable is information obtained under torture?

Will the torture victim say whatever she thinks the torturer wants to hear?  Will he say anything to make it stop – “to move forward?”

Laws concerning involuntary statements and confessions go back to ancient Rome, and beyond.

And American common law, comes from British common law, which in turn partly came from Roman common law.

Further, Roman law had even older predecessors, including the laws of ancient Athens, Macedonia and Greece.

That’s about as common as law gets.

Today, in Minnesota, the law remains that involuntary statements and confessions are unreliable and inadmissible in a trial.

As often with the Common Law, Minnesota Statutes partly encode voluntariness law, as we shall soon discuss.

Voluntariness vs. Miranda

Compared to Miranda:  First though, let’s compare voluntariness with the more recent development of Miranda v. Arizona, 384 U.S. 436 (1966).  The Miranda rights case stands for two things.

  1. A defendant’s answers to police questioning in custody are admissible only if police did inform her of her rights to an attorney, and against self-incrimination.
  2. And if the accused waived these rights, that the accused not only understood these rights, but voluntarily waived them.

A defense attorney can ask a court to suppress a statement police get in violation of Miranda.

The voluntariness of a confession is a separate issue from the Miranda issue.  Today we hear about the Miranda warning more.  This, thanks to the publicity for the 1966 case.

But voluntariness law is more powerful than the Miranda case, with its ancient roots in the laws of humankind.  Humans have long known that an involuntary statement is unreliable.

The key differences between the two could be simplified:

Public Policy: Remedy:
Miranda: Deter police misconduct Exclusionary Rule
Voluntariness Law: Reliability (Truth) Complete Suppression

Who has the burden of proving voluntariness?

The state has the burden of proving by a preponderance of the evidence that the defendant confessed freely and voluntarily.

What is an involuntary statement?

Deceased being weighed against his own heart

Deceased being weighed against his own heart

“A confession is not voluntary if the actions of the police, combined with the circumstances, are so coercive and intimidating that the defendant is unable to make a free-will decision.  The actions of police need not be threats or deliberate intimidation to be coercive.” M.A.K., 667 N.W.2d 467 (2003).

An inculpatory statement is only admissible if given voluntarily.  See Brown v. Mississippi, 297 U.S. 278 (1936); State v. Biron, 266 Minn. 272, 123 N.W.2d 392 (1963).

We cannot trust an involuntary statement to be accurate or true.

Totality of Circumstances

To determine if a statement was voluntary, the court considers the totality of the relevant circumstances.  This includes factors such as the defendant’s:

An involuntary statement is unreliable. A court will suppress under the voluntariness doctrine.

An involuntary statement is unreliable. A court will suppress under the voluntariness doctrine.

  • age,
  • maturity,
  • intelligence,
  • education,
  • experience, and
  • ability to comprehend.

Police must not extract a confession by threats or obtain one via direct or implicit promises.  Malloy v. Hogan, 378 U.S. 1 (1964); Bram v. United States, 168 U.S. 532 (1897).

From the Defendant’s Point-of-View:  The court determines the confession’s voluntariness by the defendant’s state of mind at the time.

The court reviews the facts surrounding the confession, to determine how the defendant responded to these circumstances.  And it decides whether the confession should then be found involuntary.  See Culombe v. Connecticut, 367 U.S. 568, 603 (1961).

What remedy?

Common Law — “Cannot Be Given in Evidence:”  A court must suppress an involuntary statement, under Minn. Stat. §634.03, for all purposes, including impeachment at trial.

Minn. Stat. §634.03 titled “Confession, inadmissible when,” is a Minnesota Statute codifying the common law going back thousands of years, predating constitutional law, and continuing to date.  It provides:

Unreliable evidence is misleading. Umbrellas in the sun.

Unreliable evidence is misleading. Umbrellas in the sun.

“A confession of the defendant shall not be sufficient to warrant conviction without evidence that the offense charged has been committed; nor can it be given in evidence against the defendant whether made in the course of judicial proceedings or to a private person, when made under the influence of fear produced by threats.

Under the law and this statute, the involuntary statement cannot be used for any purpose, even impeachment.

The common law, from ancient times, and Constitutional law limiting confessions, recognize that involuntary confessions are unreliable.  Even where involuntary confessions were corroborated, courts have suppressed them.  And this reduces the general evil of allowing involuntary confessions (general deterrence); and the consequent systemic risk of false confessions.

No “in custody” requirement

Custody status does not matter.  Unlike Miranda cases, it makes no difference whether the defendant was “in custody” or not.

No “state actor” requirement

Also unlike Miranda, we do not need state action for application of this common law rule.  Its purpose is not to deter police misconduct.  Its time-honored purpose is to improve the reliability of verdicts by excluding involuntary statements.

Your Criminal Lawyer

If the prosecutor has your involuntary confession or statement, what can you do?  You can alert your criminal defense attorney.  And your criminal lawyer can look at the facts and develop a motion to suppress the involuntary statements.

The judge will hear the motion at the Contested Omnibus Hearing.  If she agrees with your lawyer, she’ll completely suppress the involuntary statement.  Then, the prosecutor won’t be able to use it at trial for any purpose.

Gallagher Criminal Defense logo smMinneapolis Criminal Lawyer Thomas C. Gallagher‘s three decades experience suppressing involuntary confessions could help you.


And his peers consider Attorney Gallagher an expert on the topic.  In fact, Gallagher’s been asked to teach Continuing Legal Education classes on confessions law to police officers, judges and other lawyers.

You deserve the best defense.  So, call Minnesota Defense Attorney Thomas Gallagher about your case.

Questions?  You can call Defense Attorney Thomas Gallagher at, 612 333-1500