Trace Maddox (NYU Law) has posted Ghosts of Confession Law Past, Present, and Future (59 pages) on SSRN. Here is the abstract:
Modern American confession law is a ghost of its former self. Under current Due Process doctrine, a confession is admissible at trial only if it is “voluntary”—a rule that the Supreme Court claims to derive from two centuries of Anglo-American common law. But this doctrinal origin story is little more than a fiction. Today’s reductive voluntariness test bears scant resemblance to the common law’s multifaceted and chimeric exclusionary rule—and offers none of its protections.
This Article demonstrates that, contrary to the Justices’ own account, what the Court applies today is not a constitutionalization of the common law, but rather a misreading of it. Drawing upon primary sources from the eighteenth and nineteenth centuries, this Article establishes that the common law of confessions was animated by two distinct values: one concerned with the reliability of confessions, and the other with the use of oppressive tactics to obtain them. This Article examines the Court’s persistent failure to recognize and disentangle those values, and it thus traces the collapse of early confession law into the ineffectual morass of modern voluntariness. This Article then demonstrates the ways in which the voluntariness doctrine gestures at both reliability and oppression but meaningfully responds to neither, and it illustrates the concrete harms that result. On these bases, this Article advocates for a return to confession law’s roots, calling upon the Court to at last distinguish the common law’s dual concerns and to erect them into a robust, double-layered shield against the admission of unacceptable confessions. In doing so, the Court can shape American confession law into the potent safeguard that it once promised to be.
(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.")
Posted at 6:23 AM