See also: ADMISSIONS; BRUTON RULE; STATEMENTS AGAINST INTEREST

1.  Generally

The term “confession” is ordinarily used in the sense of an admission of having committed a criminal offense, but the term has also been defined to include any self-incriminating statement.{footnote}18 U.S.C. § 3501(e).
Contra Stephen v. State, 898 S.W.2d 435, 437 (Ark. 1995) (admission of only one element of DUI offense does not constitute “confession”).{/footnote}  While confessions are not treated as hearsay under the federal rules,{footnote}FRE 801.{/footnote} most states do treat them as hearsay, though admissible under an exception for admissions of a party opponent.  A confession need not be spoken, but may be given through gestures or nods of the head.{footnote}United States v. Ross, 719 F.2d 615 (2d Cir. 1983).{/footnote} 

2.  Voluntariness

Due process requires that before a confession may be received in evidence, either on the issue of guilt directly or as impeachment, the prosecution must establish that it was made voluntarily.{footnote}Jackson v. Denno, 378 U.S. 368 (1969); Sims v. Georgia, 385 U.S. 538 (1967); Haynes v. Washington, 373 U.S. 503 (1963); Spano v. New York, 360 U.S. 315 (1959); Brown v. Mississippi, 297 U.S. 278 (1936). {/footnote}  The test of whether a confession is made voluintarily is whether it is “the product of an essentially free and unconstrained choice by its maker.”{footnote}Culombe v. Connecticut, 367 U.S. 568, 602 (1961) (quoted in Schneckloth v. Bustamonte, 412 U.S. 218, 225-226 (1973)).
See also U.S. v. Castaneda-Castaneda, 729 F.2d 1360 (11th Cir. 1984).{/footnote} A confession must have been made without compulsion or inducement.{footnote}Haynes v. Washington, 373 U.S. 503 (1963) (test is whether defendant’s will was overborne in order to obtain confession); Reck v. Pate, 367 U.S. 433 (1961) (same); Wilson v. United States, 162 U.S. 613 (1896).{/footnote}  The issue is sometimes phrased as whether the confession is “coerced,” but “coerced” has been held synonymous with “involuntary”.{footnote}Arizona v. Fulminante, 499 U.S. 279, 287 n. 3 (1991){/footnote}

Compelling an accused to confess also violates the privilege against self-incrimination,{footnote}Miranda v. Arizona, 384 U.S. 436 (1966).{/footnote} but the same standard applies to such claims as applies to traditional due process claims of involuntariness.{footnote}New York v. Quarles, 467 U.S. 649, 655 n. 5 (1984).
See also Withrow v. Williams, 507 U.S. 680, 693 (1993).{/footnote}

In Arizona v. Fulminante, the United States Supreme Court held that the introduction of a coerced confession at a criminal trial is subject to harmless error analysis.{footnote}499 U.S. 279 (1991) (error found not to be harmless).
Accord People v. Cahill, 853 P.2d 1037, 1040 n.1 (Cal. 1993).
See generally Ogletree, Arizona v. Fulminante: The Harm of Applying Harmless Error to Coerced Confessions, 105 Harv. L. Rev. 152 (1991).{/footnote}  See APPELLATE REVIEW–Prejudicial Versus Harmless Error.

2(a).  Factors to Be Considered

The totality of the circumstances are to be considered to determine whether the confession was voluntary.{footnote}  18 U.S.C. § 3501; Lewis v. Texas, 386 U.S. 707 (1967); United States v. Castaneda-Castaneda, 729 F.2d 1360 (11th Cir. 1984).
State v. Carrillo, 750 P.2d 883, 893 (Ariz. 1988); Arizona v. Tinajero, 1997 Ariz. App. LEXIS 3 (January 9, 1997); People v. Lamb, 336 N.E.2d 753, 756 (Ill. 1975); People v. Wright, 490 N.W.2d 351 (Mich. 1992); Betzle v. State, 847 P.2d 1010, 1022 (Wyo. 1993) (sexual assault and taking indecent liberties with a minor){/footnote} That the contents of a confession are shown to be true or reliable is not to be considered as a factor.{footnote}Rogers v. Richmond, 365 U.S. 534, 542, 544 (1961) (proper question is "whether the behavior of the State’s law enforcement officials was such as to overbear [defendant’s] will to resist and bring about confessions not freely self-determined — a question to be answered with complete disregard of whether or not [defendant] in fact spoke the truth.")
See also U.S. v. Davidson, 768 F.2d 1266 (11th Cir. 1985).{/footnote} 

Relevant factors include:{footnote}See gnerally Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (listing potential factors); Culombe v. Connecticut, 367 U.S. 568, 602 (1961) (same).{/footnote}

2(a)(1).  Coercive Conduct of Questioners

2(a)(1)(A).  Generally

The use of coercion by police is one of circumstances to be considered in determining the voluntariness of a confession.{footnote}Withrow v. Williams, 507 U.S. 680, 693 (1993) (holding that involuntariness is determined by a totality of the circumstances test, of which police coercion is just one of many potential circumstances to be considered); Miller v. Fenton, 474 U.S. 104, 109 (1985) ("Certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment.").{/footnote}  Indeed, it is a necessary predicate to any claim that a confession was involuntary.{footnote}Colorado v. Connelly, 479 U.S. 157, 167 (1986) ("coercive police activity is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment."){/footnote}

Where police use physical coercion to interrogate a suspect, a resulting confession is deemed involuntary,{footnote}Lee v. Mississippi, 332 U.S. 742 (1948); Brown v. Mississippi, 297 U.S. 278 (1936) (admission of confession obtained by whipping the defendant violated due process).{/footnote} and must always be exlcuded. Denial of food or water  constitutes improper physical coercion.{footnote}CHECK Payne v. Arkansas, 356 U.S. 560 (1958).{/footnote}  Psychological coercion may also render a confession inadmissible,{footnote}Arizona v. Fulminante, 499 U.S. 279, 287 (1991) ("coercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition."), quoting Blackburn v. Alabama, 361 U.S. 199, 206 (1960).
Leyra v. Denno, 347 U.S. 556 (1954).{/footnote} but exclusion is not always mandated where psychological coercion has been used.{footnote}Miller v. Fenton, 796 F.2d 598 (3d Cir. 1986).{/footnote} Improper means of coercing confessions include use of bright lights in the suspect’s face,{footnote}Williams v. United States, 341 U.S. 97 (1951).{/footnote} and excessively long interrogations.{footnote}Ashcraft v. Tennessee, 322 U.S. 143 (1944) (36 hours of continuous interrogation held "inherently coercive").{/footnote}  They also include disallowing telephone calls. Confessions obtained through use of "truth serums" are inadmissible.{footnote}Townsend v. Sain, 372 U.S. 293 (1963).  See also SODIUM PENTATHOL.{/footnote}  See also TRUTH SERUMS.

2(a)(1)(B).  Deception

The use of deception or tricks to obtain a confession does not by itself render a confession inadmissible, unless the deception appears calculated to elicit a false confession or is part of a scheme to obtain a confession through improper threats or inducements.{footnote}Spano v. New York, 360 U.S. 315 (1959) (confession inadmissible where obtained through false statement that suspect’s friend might lose his job if suspect did not confess); Leyra v. Denno, 347 U.S. 556 (1954) (confession inadmissible where obtained through psychiatrist’s false assurances to suspect that he had done nothing wrong and would be treated leniently).
Commonwealth v. Dupree, 275 A.2d 326 (Pa. 1971) (confession inadmissible if induced by interrogator’s false statement that the suspect’s wife would be arrested and prosecuted unless he confessed).
See generally White, Police Trickery in Inducing Confessions, 127 U. Pa. L. Rev. 581, 619 (1979)
99 ALR2d 772.{/footnote}  Generally, the fact that the police falsely claimed to have incriminating evidence against the accused is insufficient to render an otherwise voluntary confession inadmissible.{footnote}Frazier v. Cupp, 394 U.S. 731 (1969) (police falsely told accused his accomplice had confessed).
Beasley v. United States, 512 A.2d 1007, 1010 (D.C. 1986) (police falsely claimed witnesses would testify against the accused); Commonwealth v. Baity, 237 A.2d 172, 177 (Pa. 1968) (falsely telling defendant that his codefendant named him as the "triggerman" held not likely to produce false confession); Commonwealth v. Graham, 182 A.2d 727, 731 (Pa. 1962) (phony identification during which police employee pointed to defendant and said, "that’s the man," not likely to induce false confession); State v. Jackson, 304 S.E.2d 134, 144 (N.C. 1983) (police fabricated forensic evidence).
But see Florida v. Cayward, 552 So. 2d 971 (Fla. Dist. Ct. App. 1989) (excluding confession where police fabricated forensic evidence).
See generally Roppe, True Blue? Whether Police Should be Allowed to Use Trickery and Deception to Extract Confessions, 31 San Diego L. Rev. 729, 734-36, 761 (1994).{/footnote}

2(a)(1)(C). Inducements to Confess

Promises of leniency made to a suspect to induce a confession will render a confession inadmissible.{footnote}Colorado v. Spring, 479 U.S. 564, 576 n. 8 (1987) (citing Lynumn v. Illinois, 372 U.S. 528 (1963) (when police officers falsely informed a suspect that she would be granted leniency if she confessed and would be deprived of state financial aid for her children if she failed to confess, her confession was involuntary); Streetman v. Lynaugh, 812 F.2d 950 (5th Cir. 1987) (promise to immediately release accused or promise not to use statement against him will render confession involuntary and inadmissible); Williams v. Withrow, 944 F.2d 284, 286 (6th Cir. 1991) (false promise that suspect would not be charged if he told the truth constituted promise of leniency and rendered confession involuntary), aff’d in part, rev’d in part, 113 S. Ct. 1745 (1993).
State v. Biron, 123 N.W.2d 392 (Minn. 1963) (confession induced by possibility of leniency held inadmissible);
See also Haynes v. Washington, 373 U.S. 503, 514 (1963) (promise that defendant would be allowed to call his wife after he made a statement, in light of other circumstances, violated due process).
But see United States v. Garot, 801 F.2d 1241, 1245 (10th Cir. 1986) (statements about placing or removing blame do not ordinarily constitute promises of leniency).
See generally Dix, Promises, Confessions, and Wayne LaFave’s Bright Line Rule Analysis, 1993 U. Ill. L. Rev. 207, 219-20 (1993).
CHECK United States v. Rutledge, 900 F.2d 1127 (7th Cir.), cert. denied, 498 U.S. 875 (1990); People v. Manning, 672 P.2d 499 (Colo. 1983); Womack v. State, 205 So. 2d 579, 585 (Ala.  1967){/footnote}  Promises to protect the accused from physical harm have also rendered resulting confessions involuntary.{footnote}Arizona v. Fuminante, 499 U.S. 279, 286-87 (1991); Payne v. Arkansas, 356 U.S. 560 (1958).{/footnote}  Improper inducements include promises of favorable treatment of members of the suspect’s family.{footnote}51 ALR4th 495 (promises that suspect’s family will benefit from confession).  Check 80 ALR2d 1428 (same).{/footnote} Promises to advise the prosecuting authorities of the suspect’s cooperation are generally held insufficient to render a resfulting confession inadmissible.{footnote}United States v. Baldacchino, 762 F.2d 170 (1st Cir. 1985) (promise to advise prosecutor of suspect’s cooperation insufficient to render confession inadmissible); United States v. Toscano-Padilla, No. 92-30247, 1993 U.S. App. LEXIS 15411, at *4 (9th Cir. June 16, 1993); United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988); United States v. Robinson, 698 F.2d 448, 455 (D.C.  Cir. 1983).
Layne v. State, 542 So. 2d 237, 239 (Miss. 1989) (confession held voluntary even though police promised to inform prosecutor that the suspect was cooperating).
But see State v. Fuqua, 152 S.E.2d 68, 72 (N.C. 1967) (excluding confession because officer told suspect he would testify that the suspect cooperated with the investigation).{/footnote}

2(a)(1)(D).  Threats

Coercive threats of force render any resulting confession involuntary.{footnote}Beecher v. Alabama, 389 U.S. 35 (1967).{/footnote}  Various other kinds of threats have been held to render a resulting confession involuntary,{footnote}Check 27 ALR3d 1185 (threats to force suspect to view victim’s corpse); Check 23 ALR2d 1306; 89 ALR3d 230 (confessions obtained through threatened use of lie detector test or test results).{/footnote} including threats to withhold public aid,{footnote}Lynumn v. Illinois, 372 U.S. 528 (1963); Ruhl v. United States, 148 F.2d 173 (10th Cir. 1945).{/footnote} threats to involve a suspect’s family members in the case,{footnote}Rogers v. Richmond, 365 U.S. 534 (1961) (threat to summon suspect’s ailing spouse for questioning); Harris v. South Carolina, 338 U.S. 68 (1949) (threat to arrest suspect’s mother).
Commonwealth v. Dupree, 275 A.2d 326 (Pa. 1971) (confession inadmissible if induced by interrogator’s false statement that the suspect’s wife would be arrested and prosecuted unless he confessed).{/footnote} and various other types of coercive threats.  Warning a suspect that he must tell the truth does not render a resulting confession inadmissible.{footnote}United States v. Barfield, 507 F.2d 53 (5th Cir. 1975); Rivers v. United States, 400 F.2d 935 (5th Cir. 1968).{/footnote}

2(a)(2).  Mental Disability or Impairment

That an accused had diminished mental or intellectual capacity is not by itself grounds for excluding a confession in the absence of evidence that police knew of the impairment and deliberately exploited it.{footnote}Colorado v. Connelly, 479 U.S. 157, 170 (1986).
State v. Lindsey, 404 So.2d 466, 472 (La. 1981) (impairment does not mean that accused cannot make a free and voluntary confession).{/footnote}  On the other hand, where coercive tactics were used, that an accused had diminished mental or intellectual capacity is a relevant factor in determining his or her capacity to resist pressure to confess.{footnote}Thomas v. Arizona, 356 U.S. 390 (1958).{/footnote} Relevant considerations may include meager education,{footnote}Arizona v. Fulminante, 499 U.S. 279, 286 n. 2 (1991) (fourth grade); Payne v. Arkansas, 356 U.S. 560, 567 (1958).{/footnote} low intelligence,{footnote}Arizona v. Fulminante, 499 U.S. 279, 286 n. 2 (1991) (“low average to average intelligence”);  Reck v. Pate, 367 U.S. 433, 441 (1961).{/footnote} a history of psychiatric problems,{footnote}Arizona v. Fulminante, 499 U.S. 279, 286 n. 2 (1991).{/footnote} or fatigue.{footnote}CHECK United States v. Casal, 915 F.2d 1225 (8th Cir. 1990).{/footnote}  A defendant’s confession is inadmissible if his will was overcome by the use of alcohol or drugs.{footnote}United States v. Holmes, 632 F.2d 167 (1st Dist. 1980); 25  ALR4th 419; 69 ALR2d 361; 69 ALR2d 84.{/footnote}  Mere emotional distress is insufficient, however, to render a confession invalid.{footnote}United States v. Rouco, 765 F.2d 983 (11th Cir. 1985).
But see United States v. Pollard, 790 F.2d 1309 (7th Cir. 1986) (confession by one in physical pain at the time may be held involuntary).{/footnote} 

2(a)(3).  Other Factors

· the circumstances and legality of the arrest;{footnote}United States v. Greer, 566 F.2d 472 (5th Cir. 1978).{/footnote}
· whether the accused was in continuous custody;{footnote}United States v. Greer, 566 F.2d 472 (5th Cir. 1978).{/footnote}
· the length of time the accused was in custody;{footnote}United States v. Greer, 566 F.2d 472 (5th Cir. 1978); 19 ALR2d 1331 (effect of delay in arraignment).{/footnote}
· the pattern of questioning;{footnote}United States v. Greer, 566 F.2d 472 (5th Cir. 1978).{/footnote}
· the length of time the suspect was questioned before confessing;{footnote}Ashcraft v. Tennessee, 322 U.S. 143 (1944) (holding that 36 hours of continuous interrogation is "inherently coercive"); United States v. Yunis, 859 F.2d 953 (App. D.C. 1988); Annotation, _____, 69  L.Ed. 131.{/footnote}
· that the confession follows a polygraph examination{footnote}Johnson v. State, 166 So. 2d 798 (Fla. Dist. Ct. App. 1964); State v. Melvin, 319 A.2d 450 (N.J. 1974);
CHECK People v. McHenry, 204 Cal. App. 2d 764, 22 Cal. Rptr. 621 (Dist. Ct. App. 1962); Leeks v. State, 95 Okl. Cr. 326, 245 P. 2d 764 (Crim. App. 1952).{/footnote}
· when the custodial process the confession was made;{footnote}18 U.S.C. § 3501(b).{/footnote}
· a special relationship with the questioner{footnote}Arizona v. Fulminante, 499 U.S. 279, 286 n. 2 (1991) (confession to jailhouse informant who accused thought of as friend friend held involuntary where, among other things, friendship “might well have made the [accused] particularly susceptible to the [informant’s] entreaties.”); Spano v. New York, 360 U.S. 315, 323 (1959) (condemning practice of having officer who was defendant’s friend falsely inform defendant that the officer’s job would be in jeopardy if the defendant did not confess).{/footnote}
· whether the accused knew of the charges before confessing;{footnote}18 U.S.C. § 3501(b).
Ariz.R.S. § 13‑3988(B) (1989) (requires judge to consider "whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession.")
But see State v. Carrillo, 750 P.2d 883, 894 (Ariz. 1988) ("The Constitution does not require the police to give every person being questioned a complete exposition of the reason for questioning, the objectives sought, the evidence already in hand, and the strength of the case being built."); Arizona v. Tinajero, 1997 Ariz. App. LEXIS 3 (January 9, 1997) (statement was not rendered involuntary by failure of police to disclose fact that victim had died); People v. Smith, 246 N.E.2d 689 (Ill. App. 1969), cert. denied, 397 U.S. 1001 (1970) (statement was not rendered involuntary by failure of police to disclose fact that victim had died).{/footnote}
· whether the accused was advised of his rights beforehand;{footnote}18 U.S.C. § 3501(b); United States v. Greer, 566 F.2d 472 (5th Cir. 1978).
Bean v. State, 398 P.2d 251 (Nev. 1965) (whether accused had been advised of the right to remain silent is one many factors to be considered).{/footnote}
· whether the accused was assisted by counsel at the time;{footnote}18 U.S.C. § 3501(b).{/footnote} and
· unreasonable delay in arraigning the defendant.{footnote}Compare Fed. R. Crim. P. 5 and United States v. Perez, 733 F.2d 1026 (2d Cir. 1984) (delay of six hours in arraigning defendant rendered confession inadmissible); U.S. v. Halbert, 436 F.2d 1226 (9th Cir. 1970).
But see 18 U.S.C. § 3501(c) (confessions “shall not be inadmissible solely because of delay” so long as delay no longer than 6 hours or, if longer than 6 hours, if arraignment could not have been held sooner).{/footnote}

2(b).  Procedure

2(b)(1).  Generally{footnote}Check 1 ALR3d 1251.{/footnote}[1341]

In Jackson v. Denno, the United States Supreme Court established that a defendant seeking to prohibit the admission of a confession is entitled to a pre-trial determination of whether it was involuntary.{footnote}378 U.S. 368 (1964).{/footnote} The hearing on the voluntariness of a confession (often called a “Jackson v. Denno hearing”) must be conducted outside the jury’s presence.{footnote}18 U.S.C. § 3501(a) (federal trials); FRE 104(c); United States v. Gonzalez, 736 F.2d 981 (4th Cir. 1984); Annotation, ___________, 19 L.Ed.2d 1313.
Cal. Evid. Code § 402(b); Yelloweagle v. State, 551 P.2d 1130 (Okl.Cr. 1976).
But see Pinto v. Pierce, 389 U.S. 31 (1967) (hearing before jury not reversible error where defendant consented and hearing conducted fairly); Martinez v. Estelle, 612 F.2d 173, 177 (5th Cir. 1980) (presence of jury does not in an of itself violate due process, particularly where confession is proven voluntary); United States v. Caro, 965 F.2d 1548 (10th Cir. 1992) (hearing before jury harmless error where confession shown to be voluntary, statement was largely exculpatory, and there was ample independent evidence of guilt).{/footnote}  The defendant is entitled to be present at the hearing if he so requests.{footnote}Amado v. Commonwealth, 212 N.E.2d 205, 208-09 (Mass. 1967).{/footnote}  In a bench trial, some courts have held that the court need not conduct a separate voluntariness hearing{footnote}Allen v. McCotter, 804 F.2d 1362, 1363-64 (5th Cir. 1986).{/footnote} and may rule after trial has commenced.{footnote}United States ex rel. Placek v. Illinois, 546 F.2d 1298, 1304-05 (7th Cir. 1976).{/footnote}

No hearing on the voluntariness of a defendant’s statement is required unless the defendant raises the issue in some manner.{footnote}Wainwright v. Sykes, 433 U.S. 72, 86 (1977); United States v. Luciano-Mosquera, 63 F.3d 1142 (1st Cir. 1995), cert. denied sub nom., Pagan San Miguel v. United States, 64 USLW 3606 (1996); United States v. Wilson, 895 F.2d 168 (4th Cir. 1990); United States v. Espinoza-Seanez, 862 F.2d 526, 536 (5th Cir. 1988);  United States v. Stevens, 445 F.2d 304 (6th Cir.) (per curiam), cert. denied, 404 U.S. 945 (1971); United States v. Valencia, 773 F.2d 1037 (9th Cir. 1985); United States v. Miller, 987 F.2d 1462 (10th Cir. 1993); United States v. Hart, 729 F.2d 662, 15 Fed. Rules Evid. Serv. 450 (10th Cir.), cert. denied, 469 U.S. 1161 (1984); United States v. Monroe, 437 F.2d 684 (1970).
Sanders v. State, 179 So. 2d 35, 45 (Ala. 1965); State v. Finn, 528 P.2d 615 (Ariz. 1974).
Annotation, Duty of Court, in Federal Criminal Prosecution, to Conduct Inquiry Into Voluntariness of Accused’s Statement–Modern Cases, 132 A.L.R. Fed. 415 (1996).{/footnote} On the other hand, some courts, while acknowledging this as a general rule, have held that the trial court must, sua sponte, conduct a hearing when there are special circumstances alerting the court to the possibility that the confession was not voluntary.{footnote}United States v. Iwegbu, 6 F.3d 272 (5th Cir. 1993); United States v. Bentley, 726 F.2d 1124 (6th Cir. 1984) (sua sponte hearing on voluntariness of confession required where serious doubts raised as to defendant’s knowing and voluntary waiver of Miranda rights); United States v. Taylor, 374 F.2d 753 (7th Cir. 1967) (no "alerting circumstances" found, such as defendant’s abnormal mental or physical condition, obvious ignorance, or lack of awareness); Geberding v. United States, 471 F.2d 55 (8th Cir. 1973); Commonwealth of Northern Mariana Islands v. Mendiola, 976 F.2d 475 (9th Cir. 1992) (sua sponte hearing required even though no specific motion or objection made, where issue of voluntariness pervaded trial); United States v. Powe, 591 F.2d 833 (1978) ("alerting circumstances" found; case remanded for evidentiary hearing).
See also United States v. Luciano-Mosquera, 63 F.3d 1142 (1st Cir. 1995), cert. denied, Pagan San Miguel v. United States, 64 USLW 3606 (1996) (stating that First Circuit has recognized, but not adopted this sua sponte rule), citing United Stated v. Santiago Soto, 871 F.2d 200 (1st Cir. 1989), cert. denied, 493 U.S. 831 (no "alerting circumtances" found).
Annotation, Duty of Court, in  Federal Criminal Prosecution, to Conduct Inquiry Into Voluntariness of Accused’s Statement–Modern Cases, 132 A.L.R. Fed. 415 (1996).{/footnote}  Appellate courts have consistently held that where a trial court fails to conduct a hearing on the voluntariness of a defendant’s confession, a new trial is not necessarily required, as the case may be remanded for the trial court to conduct a post-trial hearing on the issue.{footnote}United States v. Gonzalez, 736 F.2d 981 (4th Cir. 1984); United States v. Janoe, 720 F.2d 1156 (10th Cir. 1983), cert. denied, 465 U.S. 1036; United States v. Davidson, 768 F.2d 1266 (11th Cir. 1985), rehg. denied, en banc, 774 F.2d 1179; United States v. Powe, 192 U.S. App. D.C. 224, 591 F.2d 833 (1978).{/footnote}

The prosecution bears the burden of proving the voluntariness of a confession.{footnote}Lego v. Twomey, 404 U.S. 477 (1972).{/footnote}  In federal courts and most states, the burden of proof is preponderance of the evidence.{footnote}Lego v. Twomey, 404 U.S. 477 (1972); United States v. Diaz, 891 F.2d 1057 (2d Cir. 1989); Patterson v. United States, 183 F.2d 687 (5th Cir. ____).
State v. Rooks, 401 A.2d 943, 949 (Del. 1979); People v. Prim, 289 N.E.2d 601, 606 (Ill. 1972); State v. Caron, 586 A.2d 1127 (Vt. 1990).{/footnote}  The United States Supreme Court has specifically recognized the right of the states to adopt a higher standard, however.{footnote}Lego v. Twomey, 404 U.S. 477 (1972).
See People v. Jiminez, 580 P.2d 672 (Cal. 1978) (rejecting Lego; proof beyond a reasonable doubt required); State v. Brooks, 541 So. 2d 801 (La. 1989) (proof beyond a reasonable doubt required).{/footnote}

2(b)(2).  Effect of Defendant Testifying at Hearing

The defendant may testify at such a hearing without subjecting himself to cross-examination as to other issues in the case,{footnote}FRE 104(d).{/footnote} and without prejudicing his right not to take the stand in his own defense.{footnote}United States v. Davidson, 768 F.2d 1266 (11th Cir. 1985).{/footnote}  The prosecution may be able to use the defendant’s testimony at the hearing as substantive evidence in its case, however.{footnote}See Simmons v. United States, 390 U.S. 377 (1970).
Cf. Alaska Rule 104(d) (testimony admissible only if inconsistent with defendant’s testimony at trial).{/footnote}

2(b)(3).  Effect of Admitting Confession

Even though a confession is ruled admissible, the defendant must be allowed to bring to the jury’s attention the factual circumstances surrounding the confession so that the jury may give it the proper weight.{footnote}18 U.S.C. § 3501(a) (federal criminal trials):

If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.
Crane v. Kentucky, 476 U.S. 683, 688-89 (1986) (defense evidence as to circumstances of confession may not be excluded by state courts, because such evidence bears on reliability and credibility of the confession); U.S. v. Gravitt, 484 F.2d 375, 381 (5th Cir. 1973); U.S. v. Bear Killer, 534 F.2d 1253, 1258-59 (2d Cir. 1976), cert. denied, 429 U.S. 846; U.S. v. Two Bulls, 577 F.2d 63, 66 (8th Cir. 1978); U.S. v. Smith, 638 F.2d 131, 133 (9th Cir. 1981).
Beaver v. State, 455 So.2d 253, 256 (Ala. Crim. App. 1984); Palmes v. State, 397 So.2d 648, 653 (Fla. 1981); Mont. Code Ann. § 46-13-301(5) (1983).
See also FRE 104(e) (“This rule [providing, inter alia, that hearings on admissibility of a confession must take place outside the jury’s presence] does not limit the right of a party to introduce befor the jury evidence relevant to weight or credibility”)
CHECK People v. Harlacher, No. 2-92-0028 (2d Dist. May 13, 1994).{/footnote} In jurisdictions following the “orthodox” rule, the jury does not pass on the issue of voluntariness.{footnote}Deeds v. People, 747 P.2d 1266 (Colo. 1987); State v. McPherson, 171 N.W.2d 870, 873 (Iowa 1969); People v. Walker, 132 N.W.2d 87, 91 (Mich. 1965); State v. Wajda, 206 N.W.2d 1, 2 (Minn. 1973); State v. Hampton, 294 A.2d 23 (1972) (abandoning “Massachusetts rule” in place since 1960); State v. Kiehn, 199 N.W.2d 594 (S.D. 1972); State v. Pursley, 550 S.W.2d 949 (Tenn.1977); State v. Allen, 505 P.2d 302 (Utah 1973); Matthews v. Commonwealth, 153 S.E.2d 238 (Va. 1967); State ex rel. Goodchild v. Burke, 133 N.W.2d 753, 759-764 (Wis. 19___).{/footnote}

In jurisdictions following the “Massachusetts rule,”{footnote}See Commonwealth v. Sheppard, 48 N.E. 2d 630, 639 (Mass. 1943) (court hears all the evidence and rules on voluntariness before allowing confession into evidence; if court finds the confession voluntary, jury is then instructed that it must also find that the confession was voluntary before it may consider it).{/footnote} after the court has ruled a confession voluntary and admissible, the jury also passes on the issue of voluntariness.{footnote}State v. Owen, 394 P.2d 206, 208 (Ariz. 1964); State v. Oliver, 273 A.2d 867, 872 (Conn. 1970); Flamer v. State, 490 A.2d 104, 115 (Del. 1983); Duguay v. State, 240 A.2d 738, 740 (Me. 1968); Brittingham v. State, 511 A.2d 45, 49 (Md. 1986) (extending rule to confessions used as impeachment and not as substantive evidence); State v. Mitchell, 611 S.W.2d 211 (Mo.1981) (extending rule to confessions used as impeachment and not as substantive evidence); State v. Scott, 263 N.W.2d 659, 663 (Neb. 1978); Laursen v. State, 634 P.2d 1230, 1231 (Nev. 1981) (but failure to instruct jury on question held harmless error); People v. Huntley, 15 N.Y.2d 72, 204 N.E.2d 179, 255 N.Y.S.2d 838 (1965); Hopper v. State, 736 P.2d 538 (Okl.Cr.1987); State v. Green, 531 P.2d 245, 248 (Ore. 1975); Pa. R. Crim. P. 323; Commonwealth v. Snyder, 233 A.2d 530 (Pa. 1967); State v. Ferola, 518 A.2d 1339 (R.I. 1986); Tex. Code Crim. P. Ann. art. 38.22; Johnson v. State, 510 S.W.2d 944 (Tex. Crim. App. 1974); State v. Caron, 586 A.2d 1127 (Vt. 1990); State v. Goodmon, 290 S.E.2d 260 (W. Va. 1981); Witt v. State, 892 P.2d 132 (Wyo. 1995).
See also Stein v. New York, 346 U.S. 156 (1953) (upholding the practice).
CHECK State v. Dillon, 471 P.2d 553 (Idaho 1970).{/footnote} The jury determination of voluntariness is made using a reasonable doubt standard.{footnote}Commonwealth v. Tavares, 385 Mass. 140, 152, 430 N.E.2d 1198, 1206 (1982); State v. Caron, 586 A.2d 1127 (Vt. 1990).{/footnote} In these jurisdictions, failure to instruct the jury that it must decide whether the confessions were voluntary is reversible error.{footnote}United States v. Inman, 352 F.2d 954 (4th Cir. 1965).
State v. Pulliam, 349 P.2d 781 (Ariz. 1960); People v. Bevins, 351 P.2d 776, 779-80 (Cal. 1960); State v. Breaker, 136 N.W.2d 161 (Neb. 1965); People v. Mials, 278 N.Y.S.2d 1020, 1022 (Sp. Ct. N.Y. 1967); People v. Huntley, 204 N.E.2d 179 (N.Y. 1965); State v. Brewton, 395 P.2d 874, 879 (Ore. 1964).
Contra Laursen v. State, 634 P.2d 1230, 1231 (Nev. 1981) (harmless error found).{/footnote} If such an instruction is not requested, the court must give it sua sponte.{footnote}United States v. Inman, 352 F.2d 954 (4th Cir. 1965).
State v. Pulliam, 349 P.2d 781 (Ariz. 1960); People v. Bevins, 351 P.2d 776, 779-80 (Cal. 1960); State v. Breaker, 136 N.W.2d 161 (Neb. 1965); People v. Mials, 278 N.Y.S.2d 1020, 1022 (Sp. Ct. N.Y. 1967).{/footnote}
Some federal courts have construed 18 U.S.C. 3501 as requiring that the orthodox rule be followed in federal courts.{footnote}U.S. v. Barry, 518 F.2d 342 (2d Cir. 1975); U.S. v. Bernett, 495 F.2d 943, 961 (U.S. App. D.C. 1974).
But see U.S. v. Panepinto, 430 F.2d 613 (3d Cir. 1970) (§ 3501 does not require that issue of voluntariness be submitted to jury, but nothing precludes this practice); U.S. v. Buie, 538 F.2d 545 (4th Cir. 1976) (noting rule in 4th Circuit is  to submit issue to jury), citing United States v. Inman, 352 F.2d 954 (4th Cir. 1965).

CHECK United States v. Bloom, 865 F.2d 485, 492 (2d Cir. 1989). Kulyk v. United States, 414 F.2d 139, 142 (5th Cir. 1969); Bailey v. United States, 410 F.2d 1209, 1214 n. 6 (10th Cir. 1969); Ellis v. Fitzharris, 407 F.2d 799, 803 (9th Cir. 1969).{/footnote}
Regardless of which approach is taken, it is improper for the judge to reveal his finding of voluntariness to the jury.{footnote}Clifton v. United States, 371 F. 2d 354, 360 (D.C. Cir. 1966), cert. denied, 386 U.S. 995 (1967); Tex. Code Crim. P. Ann. art. 38.22, § 2.
Dempsey v. State, 355 A.2d 455,  (Del. 1976).{/footnote}

2(b)(4).  Effect of Exclusion

Where one confession made by the defendant has been found invountary, a sunsequent confession will only be admitted if it was made free of the conditions which rendered the first confession invalid and if it is shown to be voluntary.{footnote}Lyons v. Oklahoma, 322 U.S. 596 (1944).
Check Robinson v. Percy, 738 F.2d 214 (7th Cir. 1984).{/footnote}

3. Corroboration and the Corpus Delicti Rule

The Due Process requirement that confessions be proven voluntary does not completely resolve the courts’ concerns about the reliability of confessions. Courts have long recognized that even confessions judicially found to have been voluntary may have been extracted under extreme psychological stress, and that criminal suspects have been known to voluntarily confess to crimes which they did not commit:{footnote}Smith v. United States, 348 U.S. 147, 152-53 (1954).{/footnote} 

Confessions may be unreliable because they are coerced or induced, and although separate doctrines exclude involuntary confessions from consideration from the jury, further caution is warranted because the accused may be unable to establish the involuntary nature of his statements. Moreover, though a statement may not be "involuntary" within the meaning of this exclusionary rule, still its reliability may be suspect if it is extracted from one who is under the pressure of a police investigation — whose words may reflect the strain and confusion attending his predicament rather than a clear reflection of his past.{footnote}Smith v. United States, 348 U.S. 147, 153 (1954) (citations omitted).  See also Rogers v. Richmond, 365 U.S. 534, 541 (1961); Watts v. Indiana, 338 U.S. 49, 54 (1949).
DeJesus v. State, 655 A.2d 1180, 1199 (Del. 1995).
See also United States v. Lopez-Alvarez, 970 F.2d 583, 589 n. 5 (9th Cir. 1992) (corroboration requirement also serves purpose of encouraging skillful investigation by police rather than reliance on extracting confessions, citing Escobedo v. Illinois, 378 U.S. 478, 488-89 (1964) (“a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.") {/footnote}

Courts have addressed these reliability concerns by requiring that a defendant’s extrajudicial admission or confession be corroborated. 

This corroboration requirement is raised in two procedural contexts: admissibility of a confession in the first instance and the sufficiency of the evidence as a whole.  Before a confession may even be introduced into evidence, the prosecution is required to show that it is corroborated by other evidence (§§ 3(b), (c)).  In other words, corroboration is part of the foundation required for the admissibility of a confession.  Courts also require some form of corroboration of the defendant’s confession to sustain a conviction (3(b), (c)).{footnote}See generally C. McCormick § 158; S. Saltzburg, American Criminal Procedure Cases And Commentary 511-12 (1984); C. Whitebread, Criminal Procedure ‘  15.06, at 313 (1980); 7 J. Wigmore, Evidence In Trials At Common Law ” 2070-74 (Chadbourn rev. ed. 1978).{/footnote} 

While the voluntariness requirement is mandated by the Due Process Clause, no provision of the federal Constitution or any state constituion requires corroboration as a prerequisite to admissibility of a confession,{footnote}Thomas A. Mullen, Rule Without Reason: Requiring Independent Proof of the Corpus Delicti as a Condition of Admitting an Extrajudicial Confession, 27 U.S.F. L. Rev. 385, 387 (1993).{/footnote} or in order to sustain a conviction.  Thus, a state court’s alleged violation of the states’ own corroboration rule does not rise to the level of a constitutional violation.{footnote}Autry v. Estelle, 706 F.2d 1394, 1407 (5th Cir. 1983) (habeas corpus proceeding alleging violation of corpus delicti rule).{/footnote}
 
Courts have taken one of two approaches to the corroboration requirement: the traditional “corpus delicti rule” prevailing in most of the states (3(b)) and the “trustworthiness doctrine” originated by the federal courts but adopted by a growing number of state courts (§ 3(c)). The test used is not affected by the procedural context: a court following the corpus delicti rule applies it both to the admissibility of a confession and to the sufficiency of the evidence.  Some commentator have suggested that there may be no practical difference between the two rules.{footnote}McCormick § 158, at 349; S. Saltzburg, American Criminal Procedure: Cases And Commentary 512 (1984) (which test is used “probably is unimportant.”){/footnote}
 

3(a).  Statement to Which the Corroboration Requirement Applies

The corroboration requirement is not limited in its application to standard confessions.   It also applies to extrajudicial admissions which evidence essential facts or elements of the crime.{footnote}Opper v. United States, 348 U.S. 84, 90-91 (1954) (“We think that an accused’s admissions of essential facts or elements of the crime, subsequent to the crime, are of the same character as confessions and that corroboration should be required.”; court extended rule to exculpatory admissions); United States v. Grizales, 859 F.2d 442, 445 (7th Cir. 1988); United States v. Fearn, 589 F.2d 1316, 1321 (7th Cir. 1978).
State v. Thompson, 560 N.W.2d 535 (S.D. 1997); State v. Aten, 900 P.2d 579, 584 (Wash. App. 1995) (“the corpus delicti rule requires corroboration of any statement made by the defendant, whether confession, admission, or even neutral description.”){/footnote}  For purposes of this discussion, the term “confession” will be used to refer not only to standard confessions, but also to such admissions.

The corroboration requirement does not apply to statements made prior to or during the commission of the crime.{footnote}United States v. Head, 546 F.2d 6, 9 (2nd Cir. 1976) ("The admissions made by [defendant] in his taped conversation . . . were made during the course of the alleged conspiracy, rather than after its consummation, and may be sufficient to establish [his] guilt even without corroboration."), cert. denied sub nom. Wheaton v. United States, 430 U.S. 931 (1977); Government of the Virgin Islands v. Hoheb, 777 F.2d 138, 142 (3rd Cir. 1985) ("Admissions made before a crime occurred need not be corroborated, and . . . recent cases have extended this holding to apply to statements made during the course of a conspiracy."); United States v. Soteras, 770 F.2d 641, 644 n.4 (7th Cir. 1985); Buford v. United States, 272 F.2d 483, 486 n. 1 (8th Cir. 1959) ("Because appellant’s admissions in this case were made during the course of the crime rather than after its consummation, they may suffice to convict, even though they are uncorroborated, if they establish the crime charged."){/footnote}  Nor does the requirement apply to admissions made in court.{footnote}Commonwealth v. Appel, 689 A.2d 891, 909 (Pa. 1997).{/footnote}

3(b).  The Corpus Delicti Rule

Under the traditional corpus delicti rule, a defendant’s confession cannot be admitted until the corpus delicti for the crime has been first established by independent proof.{footnote}Ark. Code Ann. 16-89-111(d) (1987); People v. Alcala, 685 P.2d 1126, 1136 (1984); Ga. Code Ann. 24-3-53 (1982); Iowa R. Crim. P. 20(4); Ky. R. Crim. P. 9.60; People v. Konrad, 536 N.W.2d 517, 520 (Mich. 1995); Minn. Stat. Ann. 634.03 (1983); Mont. Code Ann. 45-5-111 (1991); N.Y. Crim. Proc. Law 60.50 (1992); Or. Rev. Stat. 136.425(1) (1990); Commonwealth v. Appel, 689 A.2d 891, 909 (Pa. 1997); State v. Thompson, 560 N.W.2d 535 (S.D. 1997); Tex. Crim. Proc. Code Ann. 38.22, 3(c) (1979); State v. Aten, 900 P.2d 579, 583 (Wash. App. 1995).{/footnote}  In some jurisdictions, after the court has conducted a hearing out of the jury’s presence and found a sufficient showing of the corpus delicti, the issue is submitted to the jury: the jury is instructed that it must find sufficient independent proof of the corpus delicti before it can consider the defendant’s confession and reach the ultimate issue of guilt.{footnote}Comment, Reevaluation of the California Corpus Delicti Rule: A Response to the Invitation of Proposition 8, 78 Calif. L. Rev. 1571, 1576 (1990) (discussing California procedure; citing California Jury Instructions, Criminal No. 2.72 (1988)).{/footnote}  The corpus delecti rule also provides that to sustain a conviction the prosecution must introduce evidence of the existence of a crime independent of the defendant’s confession.{footnote}United States v. Lopez-Alvarez, 970 F.2d 583, 592 (9th Cir. 1992), cert. denied, __U.S. ___ (19__).
People v. Jennings, 807 P.2d 1009 (Cal. 1991); DeJesus v. State, 655 A.2d 1180, 1199-1200 (Del. 1995) (felony murder); People v. McMahan, 548 N.W.2d 199, 200 (Mich. 1996) (murder conviction reversed where no independent evidence corroborated defendant’s confession; although woman who defendant confessed to murdering had disappeared, police found no body, no weapon and no physical evidence of any crime); People v. Williams, 373 N.W.2d 567 (Mich. 1985); Commonwealth v. Appel, 689 A.2d 891, 909 (Pa. 1997); State v. Speights, 208 S.E.2d 43 (S.C. 1974); State v. Thompson, 560 N.W.2d 535 (S.D. 1997) (reversing conviction for sexual contact with a minor); Bremerton v. Corbett, 723 P.2d 1135 (1986) (rejecting trustworthiness doctrine); Betzle v. State, 847 P.2d 1010, 1022 (Wyo. 1993) (corroboration held sufficient to sustain charges of sexual assault and taking indecent liberties with a minor).{/footnote} 

Traditionally, the rule required the prosecution to provide independent evidence of each element of the offense with which the defendant is charged.{footnote}1 McCormick on Evidence § 145 at 558 (Strong 4th ed. 1992).
DeJesus v. State, 655 A.2d 1180, 1199 (Del. 1995).{/footnote}  The modern trend, however, is to require independent evidence of only the essential aspects of the crime.{footnote}1 McCormick on Evidence § 145 at 558 (Strong 4th ed. 1992).{/footnote}  Thus, it has been held that the rule only requires (1) proof of injury, death or loss, according to the nature of the crime; and (2) proof of criminal means or agency as the cause of the injury, death or loss.{footnote}DeJesus v. State, 655 A.2d 1180, 1199-1200 (Del. 1995) (felony murder); Commonwealth v. Appel, 689 A.2d 891, 909 n. 20 (Pa. 1997); State v. Thompson, 560 N.W.2d 535 (S.D. 1997).{/footnote} The identity of the perpetrator is not an element of corpus delicti.{footnote}State v. Thompson, 560 N.W.2d 535 (S.D. 1997).{/footnote}

The prosecution need only present "some evidence" to sustain its burden under the corpus delecti rule.{footnote}People v. Jennings, 807 P.2d 1009 (Cal. 1991); DeJesus v. State, 655 A.2d 1180, 1202-03 (Del. 1995) (felony murder); State v. Thompson, 560 N.W.2d 535 (S.D. 1997) (“slight evidence is sufficient”; reversing conviction for sexual contact with a minor).{/footnote}  That evidence may be direct or circumstantial.{footnote}Perovich v. United States, 205 U.S. 86 (1907).
State v. Thompson, 560 N.W.2d 535 (S.D. 1997).
See also Matthews v. Superior Court, 201 Cal. App. 3d 385, 247 Cal. Rptr. 226 (1988) (defendant’s prior acts may suffice), modified, 209 Cal. App. 3d 155, 257 Cal. Rptr. 43 (1989).{/footnote}  The fact that the defendant confessed multiple times, however, does not constitute corroboration.{footnote}Duncan v. State, 494 A.2d 235, 239 (Md.Ct.Spec.App. 1985); Lemons v. State, 433 A.2d 1179 (Md.Ct.Spec.App. 1981); People v. Cuozzo, 54 N.E.2d 20 (N.Y. 1944) (insufficient independent evidence of corpus delicti though defendant confessed 11 times); State v. Aten, 900 P.2d 579, 584 (Wash. App. 1995); Annotation, Corroboration of Extrajudicial Confession or Admission, 45 A.L.R. 2d 1316, 1327 (1956).
See also authorities cited in § 3(c).{/footnote}  The independent evidence tending to establish the corpus delecti need not be shown beyond a reasonable doubt{footnote}  DeJesus v. State, 655 A.2d 1180, 1203 (Del. 1995); State v. Thompson, 560 N.W.2d 535 (S.D. 1997).{/footnote} or by a preponderance of the evidence,{footnote}DeJesus v. State, 655 A.2d 1180, 1203 (Del. 1995){/footnote} just so long as the evidence as a whole, including the confession, proves the corpus delecti beyond a reasonable  doubt.{footnote}DeJesus v. State, 655 A.2d 1180, 1203 (Del. 1995); State v. Thompson, 560 N.W.2d 535 (S.D. 1997).{/footnote}  

3(b)(i).  As Applied to Particular Crimes{footnote}See also authorities collected under CORPUS DELICTI § 2.  As Applied to Particular Crimes.{/footnote}[1388]

Homicide.  Where some form of homicide is charged, the corpus delecti rule is satisfied if the prosecution presents independent evidence of the death of a person caused by criminal means.{footnote}DeJesus v. State, 655 A.2d 1180, 1200 (Del. 1995) (corpus delecti of criminally negligent homicide conviction shown by independent proof that victim died as a result of being stabbed by defendant); . People v. Williams, 373 N.W.2d 567, 570 (Mich. 1985); Commonwealth v. Appel, 689 A.2d 891, 909 (Pa. 1997).{/footnote}  The prosecution need not furnish independent evidence of the requisite mens rea.{footnote}DeJesus v. State, 655 A.2d 1180, 1200 (Del. 1995).{/footnote}  Where the charge is felony murder, some jurisdictions require independent proof of the commission of the underlying felony apart from the defendant’s confession,{footnote}People v. Mattson, 688 P.2d 887 (Cal. 1984); DeJesus v. State, 655 A.2d 1180, 1202 (Del. 1995); State v. Bradford, 864 P.2d 680, 685 (Kan. 1993); People v. Emerson, 512 N.W.2d 3 (Mich. Ct. App. 1994); Gribble v. State, 808 S.W.2d 65, 71 (Tex. Crim. 1990), cert. denied, 501 U.S. 1232 (1991) (capital murder requires proof of felony).{/footnote} although the majority rule is otherwise.{footnote}Hart v. State, 783 S.W.2d 40, 42 (Ark. 1990); State v. Oliveras, 557 A.2d 534, 536-37 (Conn. 1989); Reyes v. State, 155 So.2d 663 (Fla. App. 1963); Harrison v. State, 382 N.E.2d 920 (Ind.), cert. denied, 441 U.S. 912 (1978); Ballard v. State, 636 A.2d 474 (Md. Ct. App. 1994); People v. Hughey, 464 N.W.2d 914, 916 (Mich. Ct. App. 1990); Gentry v. State, 416 So.2d 650, 652-53 (Miss. 1982); State v. Johnson, 158 A.2d 11, 19-20 (N.J. 1960); Commonwealth v. Weeden, 322 A.2d 343, 348 (Pa. 1974); State v. Bishop, 753 P.2d 439, 477-78 (Utah 1988).
1 McCormick on Evidence § 145 at 558 (Strong 4th ed. 1992).{/footnote}  The majority of courts also do not require independent proof of other aggravating circumstances included the homicide charge.{footnote}People v. Edelbacher, 766 P.2d 1, 25 (Cal. 1989) (independent proof of corpus delicti of lying-in-wait special circumstance not required); People v. Robbins, 755 P.2d 355 (Cal. 1988) (conviction of kidnapping and murder with a lewd and lascivious act special circumstance upheldeven though no independent proof of lewd act), cert. denied, 488 U.S. 1034 (1989); People v. Howard, 749 P.2d 279, 301 (Cal.) (independent proof of corpus delicti of special circumstance not required where special circumstance was committing murder for financial gain), cert. denied, 488 U.S. 871 (1988).{/footnote}

Robbery. In a robbery case, the corpus delecti is the physical property taken by force from another.{footnote}DeJesus v. State, 655 A.2d 1180, 1203 (Del. 1995) (dictum; case involved charge of attempted robbery).{/footnote} The crime of attmepted robbery has no tangible corpus delicti where there has been no actual taking of property. To establsih the corpus delicti for the crime of attempted robbery it has been held that the prosecution must show “the defendant (1) attempted to take, exercise control over or obtain the property of another (2) by the use or threat of immediate force.”{footnote}DeJesus v. State, 655 A.2d 1180, 1203 (Del. 1995).
Contra People v. Ainsworth, 755 P.2d 1017, 1047 (1988) (no corpus delicti jury instruction required since it "did not relate to a crime for which there could exist the corpus delicti"), cert. denied, 488 U.S. 1050 (1989).{/footnote}
 
The corpus delicti requirement does not apply in civil administrative proceedings.{footnote}Corrigan v. Zolin, 47 Cal. App. 4th 230, 54 Cal. Rptr. 2d 634 (1996) (driver’s license revocation); Shakin v. Board of Medical Examiners, 254 Cal.App.2d 102, 110 62 Cal.Rptr. 274 (1967) (revocation of physician’s license); Hansen v. Civil Service Board, 305 P.2d 1012 (Cal. App. 1957) (dismissal of fireman) {/footnote}

3(c).  The Trustworthiness Doctrine

Under what is sometimes referred to as the “trustworthiness doctrine,” a defendant’s confession may be admitted so long as the prosecution introduces evidence of the trustworthiness of the confession, whether or not that evidence independently shows that a crime has been committed.{footnote}United States v. Valdez, 880 F.2d 1230, 1233 (11th Cir. 1989), quoting Opper v. United States, 348 U.S. 84, 93 (1954).
Contra United States v. Fearn, 589 F.2d 1316 (7th Cir. 1978) (corroboration requirement is not a constraint on the admissibility of a confession but only relates to the sufficiency of the evidence).{/footnote}  The jury is instructed that it must find sufficient independent proof of the corpus delicti before it can consider the defendant’s confession and reach the ultimate issue of guilt.{footnote}United States v. Marshall, 863 F.2d 1285, 1288 (6th Cir. 1988):

The record reveals some evidence which may tend to corroborate defendant’s statements that he distributed cocaine, but the jury was never advised that corroboration was necessary. It may have convicted on the basis of the uncorroborated statement alone. The District Court’s refusal to give the requested corroboration instruction was erroneous, and we are unable to say it was harmless.{/footnote}  The trustworthiness doctrine also requires proof of truthworthiness to sustain a conviction, whether or not that evidence independently shows that a crime has been committed.{footnote}Wong Sun v. United States, 371 U.S. 471, 488-89 (1963) (“It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused.”); Opper v. United States, 348 U.S. 84, 93 (1954); United States v. Wilson, 436 F.2d 122, 124 (3rd Cir.), cert. denied, 402 U.S. 912 (1971); West v. Johnson, 92 F.3d 1385 (5th Cir. 1996) (applying Texas law); United States v. Gresham, 585 F.2d 103, 106 (5th Cir. 1978). Landsdown v. United States, 348 F.2d 405 (5th Cir. 1971); United States v. Abigando, 439 F.2d 827, 833 (5th Cir. 1971); United States v. Kerley, 838 F.2d 932, 940 (7th Cir. 1988) ("the corpus delicti rule no longer exists in the federal system"), modified in part, Nos. 87-1882, 87-2644 (7th Cir. April 5, 1988) (LEXIS, Genfed Library, Courts File; United States v. Pichany, 490 F.2d 1073, 1076-77 (7th Cir. 1973) (independent evidence need only corroborate the "essential facts" of the confession and justify a "jury inference" of the confession’s truthfulness”); United States v. Johnson, 589 F.2d 716, 718-19 (D.C. Cir. 1978).
Jacinth v. State, 593 P.2d 263, 266 (Alaska 1979); State v. Yoshida, 354 P.2d 986, 990 (Haw. 1960); People v. Brechon, 390 N.E.2d 626 (Ill. Ct. App. 1979); State v. Parker, 337 S.E.2d 487, 495 (N.C. 1985) (non-capital cases); State v. Franklin, 304 S.E.2d 579, 586 (N.C. 1983), overruled on other grounds, State v. Parker, 337 S.E.2d 487 (N.C. 1985) (applying this analysis to felony murder); State v. George, 257 A.2d 19 (N.H. 1969); State v. Lucas, 152 A.2d 50, 60 (N.J. 1959); State v. Paris, 414 P.2d 512, 514-15 (1966); State v. Ervin, 731 S.W.2d 70, 72 (Tenn. Crim. App. 1986); White v. State, 591 S.W.2d 851 (Tex. Cr. App. 1979) ("It is well settled that if there is some evidence corroborative of a confession, the confession may be used to establish the ‘corpus delecti [sic].'”; confession to murders during course of robbery held sufficiently corroborated by circumstances which coincided with details of the confession; no independent evidence established robbery); Schultz v. State, 264 N.W.2d 245, 253 (Wis. 1978).
Contra United States v. Lopez-Alvarez, 970 F.2d 583, 592 (9th Cir.), cert. denied, 113 S.Ct. 504 (1992) (prosecution required to prove through independent evidence both the reliability of the confession and “the gravamen of the offense – the existence of the injury that forms the core of the offense and a link to a criminal actor.”)
CHECK United States v. Von Stoll, 726 F.2d 584 (9th Cir. 1984).
CHECK Lemons v. State, 433 A.2d 1179, 1181 (Md. App. 1981); Commonwealth v. Herman, 431 A.2d 1016, 1022 (Pa. Super. 1981); State v. Hamrick, 576 P.2d 912, 913 (Wash. Ct. App.  1978).
CHECK United States v. Shunk, 881 F.2d 917, 919 (10th Cir. 1989);
CHECK State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494, 496 (1964) (strict application of corpus delicti rule "creates complications and difficulties" at trial which "tend to produce unjust results because of the greater hazard that mistakes will be made by the court or jury"); {/footnote}  There must be "substantial independent evidence which would tend to establish the trustworthiness of the statement."{footnote}Opper, 348 U.S. at 93; United States v. Fayette, 388 F.2d 728 (2d Cir. 1968); United States v. Grizales, 859 F.2d 442, 445 (7th Cir. 1988).{/footnote}  Such evidence may be circumstantial.{footnote}United States v. Grizales, 859 F.2d 442, 446 (7th Cir. 1988); United States v. Bukowski, 435 F.2d 1094, 1106 (7th Cir. 1970), cert. denied, 401 U.S. 911 (1971).{/footnote} The fact that the defendant confessed multiple times, however, does not constitute corroboration.{footnote}United States v. Calderon, 348 U.S. 160, 165 (1954) (additional uncorroborated admissions are insufficient to corroborate confession).
See also authorities cited in § 3(b).{/footnote}

The United States Supreme Court adopted this approach in Opper v. United States, holding:

We think the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement. Thus, the independent evidence serves a dual function.{footnote}348 U.S. at 93.{/footnote}
 

3(d).  Appeal

Whether a defendant’s admission or confession was sufficiently corroborated is a mixed question of law and fact that has been held primarily factual, and therefore subject to review for clear error.{footnote}United States v. Hernandez, 105 F.3d 1330, 1332 (9th Cir. 1997).{/footnote}

4.  Expert Testimony as to Trustworthiness

Expert testimony has been admitted for the purpose of explaining circumstances likely to produce a false or untrustworthy confession.{footnote}State v. Sawyer, 561 So. 2d 278, 289 (Fla. Dist. Ct. App. 1990).
Contra People v. Slago, 374 N.E.2d 1270, 1275 (Ill. Ct. App. 1978) (upholding exclusion of psychologist’s testimony that defendant could have made a false confession out of fear of the alleged real murderers; “the expert opinion . . . does not present a concept beyond the understanding of the average person . . . .”)
{/footnote}

5. Exclusionary Rules

While a thorough treatment of the Miranda rule and the law of search and seizure is beyond the scope of this work, there are several important exclusionary rules affecting confessions. 

4(a).  Failure to Provide Miranda Warnings

A defendant’s confession is admissible even if no Miranda warning was given if the suspect was not in custody{footnote}Berkemer v. McCarty, 468 U.S. 420 (1984).{/footnote} or was not subjected to interrogation.{footnote}Rhode Island v. Innis, 446 U.S. 291 (1980).
People v. Ray, 914 P.2d 846 (Cal. 1996), cert. denied, 65 U.S.L.W. 3340 (U.S. Nov. 4, 1996).{/footnote}

‘ 4(a).  Unlawful Arrests

Confessions which are obtained as a result of an unlawful arrest may be excluded as "fruit of the poisonous tree."{footnote}Taylor v. Alabama, 457 U.S. 687 (1982) (burden rests on prosecution to show confession not product of unlawful arrest); Wong Sun v. United States, 371 U.S. 471 (1963); McNabb v. United States, 318 U.S. 332 (1943).
Cf. United States v. Houle, 620 F.2d 164 (8th Cir. 1980) (confession to cellmate after illegal arrest held admissible).{/footnote} The court must determine whether the confession was "sufficiently an act of free will to purge the primary taint of the unlawful invasion."{footnote}Wong Sun v. United States, 371 U.S. 471, 488 (1963).
State v. Reffitt, 702 P.2d 681 (Ariz. 1985).{/footnote} That Miranda warnings were given is an important factor in determining whether the confession is tainted by an illegal arrest, but this is not the only factor to be considered.{footnote}Brown v. Illinois, 422 U.S. 590, 603 (1975).
State v. Reffitt, 702 P.2d 681 (Ariz. 1985).{/footnote}  In determining whether a confession has been purged of the taint of an illegal arrest, a court must weigh the following factors:{footnote}Taylor v. Alabama, 457 U.S. 687, 690, 697-98 (1982); Rawlings v. Kentucky, 448 U.S. 98, 107 (1980).
State v. Reffitt, 702 P.2d 681 (Ariz. 1985).{/footnote} 1) the voluntariness of the confession, as a threshold requirement; 2) the temporal proximity between the illegal arrest and the confession;{footnote}See Taylor, 457 U.S. at 691 (six hours insufficient; unrepresented accused fingerprinted, subjected to lineup, and questioned several times before confessing); Dunaway v. New York, 442 U.S. 200, 218 (1979) (two hours between arrest and confession insufficient); Brown v. Illinois, 422 U.S. 590, 592-95 (1975) (two hours between confession and illegal arrest insufficient; questioning began an hour after the illegal arrest).
But see Rawlings v. Kentucky, 448 U.S. 98, 108 (1980) (statement made after 45 minutes of illegal detention admissible due to the noncoercive circumstances).  {/footnote} 3) the presence of intervening circumstances, such as the existence of probable cause for the arrest;{footnote}United States v. Maier, 720 F.2d 978, 980 (8th Cir.1983); United States v. Manuel, 706 F.2d 908, 911-12 (9th Cir.1983).
State v. Reffitt, 702 P.2d 681 (Ariz. 1985); In re R.S., 93 Ill.App.3d 941, 49 Ill.Dec. 551, 418 N.E.2d 195 (1981); People v. Finch, 86 Ill.App.3d 493, 41 Ill.Dec. 741, 408 N.E.2d 87 (1980); People v. Emanuel, 98 Mich.App. 163, 295 N.W.2d 875 (1980); Barry v. New Jersey, 410 A.2d 259 (N.J. Super. 1979), cert. granted, 420 A.2d 316 (N.J. 1980), rev’d, 429 A.2d 581 (1981), cert. denied, 454 U.S. 1017 (1981); Commonwealth v. Bogan, 393 A.2d 424 (Pa. 1978); State v. Lewis, 573 P.2d 1347 (Wash. App. 1978).{/footnote} and 4) the purpose and flagrancy of official misconduct.{footnote}Brown v. Illinois, 422 U.S. 590, 592-95 (1975).
{/footnote} This last factor is entitled to particular weight.{footnote}Brown v. Illinois, 422 U.S. 590, 592-95 (1975) (this factor is "particularly" relevant); United States v. O’Looney, 544 F.2d 385, 390 (9th Cir.1976), cert. denied, 429 U.S. 1023 (1976).
State v. Reffitt, 702 P.2d 681 (Ariz. 1985) (this factor entitled to “special weight”).{/footnote}  A confession is likely to be suppressed where the police arrest the accused without probable cause as part of a "[fishing] expedition for evidence in the hope that something might turn up."{footnote}Brown, 422 U.S. at 605; Taylor, 457 U.S. at 693; Dunaway, 442 U.S. at 218; Wong Sun, 371 U.S. at 480-81.
{/footnote} On the other hand, courts will generally not suppress a confession if the arrest was made without in good faith and involved an arguable mistake.{footnote}Rawlings v. Kentucky, 448 U.S. 98, 110 (1980); United States v. Martinez-Gonzalez, 686 F.2d 93, 99 (2d Cir.1982) (police failure to state purpose when entering apartment not purposeful); United States v. Preston, 608 F.2d 626, 634 (5th Cir.1979) (police officer’s conduct had an arguable basis); United States v. Carsello, 578 F.2d 199, 204 n. 4 (7th Cir.1978); United States v. Manuel, 706 F.2d 908, 912 (9th Cir.1983) (police conduct not flagrant); United States v. O’Looney, 544 F.2d 385, 390 (9th Cir.1976), cert. denied, 429 U.S. 1023 (1976)
State v. Reffitt, 702 P.2d 681 (Ariz. 1985) (confession admissible where police erroneously relied upon acquiescence of defendant’s girlfriend to break into motel room where she had been staying with the defendant and arrest him).{/footnote}  The prosecution bears the burden of proving that the the confession is untainted by the illegal arrest.{footnote}Taylor v. Alabama, 457 U.S. 687, 690 (1982).
State v. Reffitt, 702 P.2d 681 (Ariz. 1985).{/footnote}

4(b).  Right to Counsel

In Massiah v. United States, the United States Supreme Court held that once a suspect has been indicted, the government may not deliberately elicit statements from the suspect without counsel being present.{footnote}377 U.S. 201 (1964).
See also State v. Gallagher, 396 P.2d 241 (Ariz. 1964).{/footnote}  This right to counsel attaches once judicial proceedings have been initiated “by way of formal charge, preliminary hearing, indictment, information, or arraignment."{footnote}Brewer v. Williams, 430 U.S. 387, 398 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).{/footnote}

Confessions which are obtained after a defendant has been deprived of his right to counsel are inadmissible.{footnote}Michigan v. Jackson, 475 U.S. 625 (1986); Escobedo v. Illinois, 378 U.S. 478 (1964); Massiah v. United States, 377 U.S. 201 (1964).
But see United States v. Johnson, 529 F.2d 581 (8th Cir. 1976) (confession in absence of counsel admissibe where law enforcement agent unaware that counsel had been appointed, and Miranda warnings were given).{/footnote}  This rule has been extended to the situation where a confession is elicited through a fellow prisoner acting on behalf of the government as an informant.{footnote}United States v. Henry, 447 U.S. 264 (1980).
Cf. United States v. Malik, 680 F.2d 1162 (7th Cir. 1982) (confession elicited by fellow prisoner not acting on behalf of government admissible even in absence of counsel).{/footnote}

6.  Confessions of Accomplices

To be admissible against the defendant, an accomplice’s confession must fall within an exception to the hearsay rule (§ 6(a)) and must not violate the Confrontation Clause of the Sixth Amendment (§ 6(b)).  Where a co-defendant’s confession is inadmissible against the defendant, it cannot be admitted against a non-testifying co-defendant in a joint trial, even with an instruction directing the jury to consider the confession only with respect to the guilt of the co-defendant (the “Bruton rule”, § 6(c)). 

6(a). The Hearsay Problem

Co-defendant’s confessions are generally offered under the hearsay exception for statements against interest, codified in the federal rules as FRE 804(b)(3), although some jurisdictions do not recignize an exception for statements against penal interest.  See STATEMENTS AGAINST INTEREST.  Whether a co-defendant’s confession was truly against the co-defendant’s interests is determined on a case-by-case basis depending on the circumstances surrounding the confession.{footnote}United States v. Boyce, 849 F.2d 833, 837 (3d Cir. 1988) (using "totality of circumstances" approach, finding confession made while co-defendant in custody not trustworthy); United States v. Magana-Olvera, 917 F.2d 401, 409 (9th Cir. 1990).
See also FRE 804 (Advisory Committee’s Note).
People v. Frierson, 808 P.2d 1197, 1205 (Cal. 1991) (en banc), cert. denied, 12 S.Ct. 944 (1992) (court may consider circumstancers under which statement made, possible motivation of declarant, and declarant’s relationship with defendant).{/footnote}  Factors to be considered include whether the confession was made while the co-defendant was in custudy;{footnote}United States v. Magana-Olvera, 917 F.2d 401, 409 (9th Cir. 1990); United States v. Monaco, 735 F.2d 1173, 1176-77 (9th Cir. 1984).
See also FRE 804 (Advisory Committee’s Note).
But see United States v. Boyce, 849 F.2d 833, 837 (3d Cir. 1988) (holding that not every confession made in custody is inherently unreliable, but under "totality of circumstances" approach, confession at issue in the case not trustworthy).{/footnote} whether the confession was made in an attempt to curry favor with the authorities;{footnote}United States v. Magana-Olvera, 917 F.2d 401, 409 (9th Cir. 1990); United States v. Johnson, 802 F.2d 1459, 1465 (D.C. Cir. 1986).
See also FRE 804 (Advisory Committee’s Note).{/footnote} whether the authorities offered the co-defendant leniency in exchange for cooperation;{footnote}United States v. Garcia, 897 F.2d 1413, 1421 (7th Cir. 1990) (finding no motive to falsify becuase statements made voluntarily and not part of plea agreement); United States v. Magana-Olvera, 917 F.2d 401, 409 (9th Cir. 1990).{/footnote} and whether the confession tended to shift blame from the co-defendant to the defenant.{footnote}Williamson v. U.S., 114 S.Ct. 2431, 2436 (1994) (“even the confessions of arrested accomplices may be admissible [under FRE 8034(b)(3)] if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor."); United States v. Magana-Olvera, 917 F.2d 401, 409 (9th Cir. 1990).{/footnote}  [Some courts require an obvious motive to falsify.{footnote}CHECK United  States v. Gabay, 923 F.2d 1536, 1540-41 (11th Cir. 1991).{/footnote}]

Where a confession contains both statements against the declarant’s interests and self-serving statements which inculpate the defendant, courts have taken three different approaches.{footnote}See generally Noworyta, Admitting Confessions of Codefendants: Has Lee v. Illinois Created an Additional Hearsay Exception?, 48 U. Miami L. Rev. 435, 438-39 (1993). {/footnote}  The first is to admit the entire statement.{footnote}United States v. Casamento, 887 F.2d 1141, 1171 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990); United States v. Lieberman, 637 F.2d 95, 103 (2d Cir. 1980).
New Mexico v. Earnest, 744 P.2d 539, 540 (N.M. 1987); North Carolina v. Wilson, 367 S.E.2d 589, 598-99 (N.C. 1988).
McCormick § 279 at 677; 5 Wigmore § 1465 at 341.{/footnote}  The second is to admit or exclude the entire statement depending upon whether it is predominantly self-serving or predominantly against the declarant’s interests.{footnote}Washington v. Rice, 844 P.2d 416, 424 (Wash. 1993) (en banc).
McCormick § 279 at 677.{/footnote}  The third approach is to admit the portions which are against the declarant’s interests and exclude the portions which are self-serving.{footnote}Stephens, Inc. v. Gelderman, Inc., 962 F.2d 808, 812 (8th Cir. 1992); United States v. Lilley, 581 F.2d 182, 188 (8th Cir. 1978); United States v. Porter, 881 F.2d 878, 883 (10th Cir.), cert. denied, 493 U.S. 944 (1989).
People v. Leach, 541 P.2d 296, 311 (Cal. 1975); New York v. Brensic, 509 N.E.2d 1226, 1229 (N.Y. 1987).{/footnote}  Some courts following this third approach will also admit the self-serving portions if the totality of the circumstances provides them reasonable assurances of trustworthiness.{footnote}New Hampshire v. Kiewert, 605 A.2d 1031, 1036 (N.H. 1992).{/footnote}

[Some courts require corroboration of the offered statement.{footnote}United States v. Oliver, 626 F.2d 254, 260 (2d Cir. 1980); United States v. Boyce, 849 F.2d 833, 836 (3d Cir. 1988); United States v. Harrell, 788 F.2d 1524, 1626 (11th Cir. 1986).{/footnote}]

6(b).  The Confrontation Clause

  
Whether a confession is admissible under  a hearsay exception is a separate inquiry from whether its admission would violate the Confrontation Clause.  Even a confession which does not violate  a defendant’s constitutional right to confrontation must be excluded as hearsay if it does not fall within a hearsay exception.{footnote}Illinois v. Moore, 593 N.E.2d 771 (Ill. App. Ct. 1992).
See generally Noworyta, Admitting Confessions of Codefendants: Has Lee v. Illinois Created an Additional Hearsay Exception?, 48 U. Miami L. Rev. 435 (1993).{/footnote}  The hearsay analysis and the Confrontation Clause analysis must be undertaken independently.{footnote}See, e.g., Illinois v. Moman, 558 N.E.2d 1231 (Ill. App. Ct. 1st Dist. 1990); New Hampshire v. Cook, 610 A.2d 800 (N.H. 1992); Washington v. Rice, 844 P.2d 416 (Wash. 1993).{/footnote}

6(b)(1).  Summary of Cases Construing the Confrontation Clause

For constitutional pruposes, the threshhold issue is whether the hearsay declarant is present at trial and available for cross-examination.  If so, admission of the declarant’s confession does not violate the Confrontation Clause.{footnote}Nelson v. O’Neil, 402 U.S.  622, 626-30 (1971) (in joint trial, admission of evidence of codefendant-declarant’s oral confession does not violate confrontation rights of defendant, against whom declaration is not usable, if codefendant testifies and is subject to cross-examination); California v. Green, 339 U.S. 149 (1970).{/footnote}  Otherwise, the prosecution must prove that the hearsay is reliable and, if the hearsay is in the form of prior testimony, that the witness’ presence at trial could not be secured despite good faith efforts.
 
The reliability requirement is satisfied where the confession falls within a "firmly rooted hearsay exception".{footnote} White v. Illinois, 112 S.Ct. 736, 743 (1992).{/footnote} If the confession does not fall within a "firmly rooted" exception, it is presumed unreliable and must be excluded absent a showing of "paricularized guarantees of trustworthiness.{footnote}Ohio v. Roberts, 448 U.S. 56, 66 (1980).
See also Lee v. Illinois, 476 U.S. 530, 543 (1986).{/footnote}  See CONFRONTATION CLAUSE.

6(b)(2).  The Reliability of  an Accomplice’s Confession

In Lee v. Illinois,{footnote}476 U.S. 530 (1986). {/footnote} the Supreme Court addressed the admissibility under the Confrontation Clause of a non-testifying co-defendant’s confession as substantive evidence against the defendant in a murder prosecution.  Although the state argued that the confession fell within the hearsay exception for statements against interest, the Court, in a footnote, rejected the use of this exception to render confessions presumptively reliable:

We reject respondent’s categorization of the hearsay involved in this case as a simple "declaration against penal interest." That concept defines too large a class for meaningful Confrontation Clause analysis. We decide this case as involving a confession by an accomplice which incriminates a criminal defendant.{footnote}476 U.S. at 544 n. 5.{/footnote}

Thus, notwithstanding whether an accomplice’s confession satisfies the hearsay exception for statements against interest and whether that exception is “firmly rooted”, it is still presumptively unreliable and most be proven to possess paricularized guarantees of trustworthiness.

The Court found the confession lacked sufficient "indicia of reliability" to satisfy the Confrontation Clause.  Although the codefendant’s confession overlapped (or "interlocked") susbstantially with a confession made by the defendant, the two confessions diverged on the facts relevant to whether the murder was premeditated.  The Court concluded:

If those portions of the codefendant’s purportedly "interlocking" statement which bear to any significant degree on the defendant’s participation in the crime are not thoroughly substantiated by the defendant’s own confession, the admission of the statement [violates the Confrontation Clause].{footnote}476 U.S.  at 545.{/footnote}

Thus, the court may examine the extent to which a co-defendant’s confessions interlocks with a confession by the defendant to determine whether there are sufficient "indicia of reliability" to satisfy the requirements of the Confrontation Clause.{footnote}Cruz v. New York, 481 U.S. 186 (1987).{/footnote} 

Accomplice’s confessions have also been held sufficiently reliable where the confession does not purport to minimize the accomplice’s culpability.{footnote}United States v. Vernor, 902 F.2d 1182, 1187-88 (5th Cir.) (confession bore sufficient indicia of reliability where accomplice made no attempt to minimize his own role in the crime and no indication that confession was involuntary or for ulterior motive), cert. denied, 498 U.S. 922 (1990).
State v. Gilliam, 635 N.E.2d 1242, 1246 (Ohio 1994), cert. denied, 115 S. Ct. 750 (1995).
See also White, Accomplices’ Confessions And The Confrontation Clause, 4 Wm. & Mary Bill of Rts. J. 753, 772 (1996) (in light of Williamson, “it would appear that statements contained in an accomplice’s confession may be admitted consistent with the Confrontation Clause so long as (1) the confession was not given as a result of a police inducement such as a promise of leniency, and (2) the statements were inculpatory as to the accomplice….”)  {/footnote} In Williamson v. United States,{footnote}114 S.Ct. 2431 (1994).{/footnote} the Supreme Court in  a plurality opinion stated:

the very fact that a statement [in an accomplice’s confession offered under FRE 804(b)(3)] is genuinely self-inculpatory–which our reading of Rule 804(b)(3) requires–is itself one of the ‘particularized guarantees of trustworthiness’ that makes a statement admissible under the Confrontation Clause.{footnote}{/footnote}

6(c).  The Bruton Rule

The Bruton Rule comes into play where two or more defendants are being tried jointly.  Where a co-defendant’s confession is inadmissible against the defendant under the Confrontation Clause (§ 6(b)), that confession cannot be introduced in a joint trial, even if the jury is instructed to only consider the confession against the co-defendant. See BRUTON RULE.

7.  Appeal Generally

In Colorado v. Connelly, the United States Supreme Court held that admission of a confession which is unreliable does not rise to the level of a Due Process violation.{footnote}479 U.S. 157, 167 (1986){/footnote}

Bibliography

David M. Nissman et al., Law of Confessions (1985).

2.  Voluntariness

Ogletree, Arizona v. Fulminante: The Harm of Applying Harmless Error to Coerced Confessions, 105 Harv. L. Rev. 152 (1991).
White, False Confessions And The Constitution: Safeguards Against Untrustworthy Confessions, 32 Harv. C.R.-C.L. L. Rev. 105 (1997).
White, Confessions Induced By Broken Government Promises, 43 Duke L.J. 947 (1994).

3.  Reliability and the Corpus Delicti Requirement

Thomas A. Mullen, Rule Without Reason: Requiring Independent Proof of the Corpus Delicti as a Condition of Admitting an Extrajudicial Confession, 27 U.S.F. L. Rev. 385 (1993).
Brian C. Reeve, State v. Parker: North Carolina Adopts the Trustworthiness Doctrine, 64 N.C. L. Rev. 1285 (1986).
Casenote,  Criminal Law – Michigan Courts Require Proof of the Corpus Delicti to Admit All Extrajudicial Confessions and Reject Use of the Trustworthiness Doctrine, People v. McMahan, 548 N.W.2d 199 (Mich. 1996), 74 U. Det. Mercy L. Rev. 407 (1997).
Comment, Reevaluation of the California Corpus Delicti Rule: A Response to the Invitation of Proposition 8, 78 Calif. L. Rev. 1571 (1990).
Comment, Corroborating Confessions: An Empirical Analysis of Legal Safeguards Against False Confessions, 1984 Wis. L. Rev. 1121, 1140-41.
Developments in the Law — Confessions, 79 Harv.L.Rev. 938,
1072-1084 (1966); Note, Proof of the Corpus Delicti Aliunde the Defendant’s
Confession, 103 U.Pa.L.Rev. 638 (1955).
Annotation, Corroboration of Extrajudicial Confession or Admission, 45 A.L.R.2d 1316 (1956).

6.  Confessions of Accomplices

Noworyta, Admitting Confessions of Codefendants: Has Lee v. Illinois Created an Additional Hearsay Exception?, 48 U. Miami L. Rev. 435 (1993).
White, Accomplices’ Confessions And The Confrontation Clause, 4 Wm. & Mary Bill of Rts. J. 753 (1996).