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Reviews in Review
July 2005, Page 47
Confessions / Federalism
By Ellen Podgpr
Confessions
Mark A. Godsey, Rethinking the Involuntary Confession Rule: Toward a Workable Test for Identifying Compelled Self-Incrimination, 93 California Law Review 465 (2005):
Using a “totality of the circumstances” test in determining whether a confession was voluntary, has often left the accused with an insufficient remedy when up against law enforcement testimony and practices. The State Legislative Network Website of NACDL offers extensive resources on the push for mandatory electronic recording of custodial interrogations to level this playing field.
Professor Mark Godsey offers another dimension to the involuntary confession debate in an article that proposes a new test for determining voluntariness. He states that “the vast ‘wiggle room’ inherent in the highly subjective voluntariness test offers judges free rein to interpret the facts of an interrogation in a myriad of ways, thus making a finding that a confession was made involuntarily very rare in practice.” As opposed to the existing subjective approach that often favors law enforcement, Professor Godsey provides a test with brighter lines.
The objective approach presented by Professor Godsey is called the “objective penalties test, ” and he describes it as premised on the “self-incrimination clause, in which the touchstone for admissibility would be compulsion rather than voluntariness.” The article offers a strong historical basis for the acceptance of this approach and also puts the test in the context of Miranda doctrine. Professor Godsey also discusses the case of Garrity v. New Jersey as a case where a conviction was reversed and an “objective penalties” approach was used in part by the Court.
Professor Godsey does not, however, completely discard due process as a basis for an involuntary confession. He specifically states that “existing due process doctrines should serve to buttress the court’s confession analysis where the objective penalties test falls short.” Whether one agrees or disagrees with this approach, the article offers some fascinating historical material that may assist in presenting an argument to exclude a confession.
Federalism
George D. Brown, Carte Blanche: Federal Prosecution of State and Local Officials After Sabri, 54 Catholic Law Review 403 (2005):
The government was given additional support in prosecutions under 18 U.S.C. § 666, with the Supreme Court opinion in Sabri v. United States. In describing the Court’s decision, Professor George Brown says that “it issued a unanimous decision that seems both to confirm the national role in policing state and local officials and to cast doubt on the depth of the Court’s commitment to any ‘New Federalism.’”
But Professor Brown presents a third perspective in his article as he notes “Sabri confirms the high priority that the Court places on the National Government’s authority to fight corruption at any level in order to protect the democratic process and public confidence in it.” As devastating a decision as Sabri was to those who have white collar defense practices that include federal prosecutions of state and local corruption, understanding this opinion is necessary to present distinguishing arguments. This article offers a comprehensive analysis of Sabri that may prove useful in finding arguments that will allow the Court to rethink the position taken in this case. n |
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