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Kansas Supreme Court Announces Clarification of Framework for Deciding Whether Confession Is Voluntary and Overrules Precedents That Held Reliability of Confession Is Factor to Be Considered

by Douglas Ankney


The Supreme Court of Kansas clarified the framework to be used for determining whether a confession was voluntary and expressly overruled prior precedents that had held that “reliability of the confession” was a factor to be considered.

When G.O. was 16 years old, his younger stepsister was hospitalized. She revealed that G.O. had molested her. The Kansas Department for Children and Families (“DCF”) was contacted. A DCF representative told G.O.’s mother (“Mother”) and stepfather that G.O. had to be removed from the home and that counselling was necessary to reintegrate the family. The DCF representative told the Mother that each family member would be interviewed. The next person to contact the Mother was a detective from the Topeka Police Department (“TPD”). The Mother believed the detective’s interview was orchestrated by the DCF. She told G.O. that he had to “give more details to the detective” than he had given to her in order to get their family back together.

At the police station, the detective told G.O. that he wasn’t under arrest; that the purpose of the interview was only “to help G.O.’s stepsister heal, … to get the family back together,” and that the interview was not “about getting people in trouble.” The detective then produced a form to waive G.O.’s rights under Miranda v. Arizona, 384 U.S. 436 (1966), and encouraged G.O. to sign it as a “formality” because they were at the police station. The detective again assured G.O. that he wouldn’t be arrested, but he also said that if G.O. didn’t tell him everything or if G.O. told him things that turned out to not be true, “then that’s when things start to get out of control.” G.O. repeatedly stated he didn’t really want to talk but eventually relented because he wanted his stepsister to get better. G.O. eventually described sexual acts with his stepsister, including oral and anal sex.

More than two years later, the State ultimately charged G.O. with 60 sex-related felonies including rape and sodomy and prosecuted him as an adult. G.O. moved to suppress his statement to the detective, arguing his waiver of rights and his confession were not knowing and voluntary. After a hearing, the trial court granted the motion. The judge concluded the confession was not voluntary, primarily based upon the detective’s repeated assurances that the interview was not about getting anyone in trouble but to help the stepsister; G.O.’s comments during the interview that he was providing details because he wanted his stepsister to get better; and the Mother’s instruction to G.O. that “he had to talk with the detective” because she believed the interview was motivated by DCF to help the stepsister and to reunite the family.

The State brought an interlocutory appeal, and a divided Court of Appeals (“COA”) reversed the trial court. The COA’s decision rested, in part, on the standard that when a defendant claims he gave a statement in response to misrepresentations of leniency, the confession may still be used as evidence unless the defendant shows that he made a false confession to obtain the leniency. State v. Garcia, 301 P.3d 658 (Kan. 2013).

The Kansas Supreme Court then granted both G.O.’s and the State’s petitions for review. The Court observed “[t]he Fifth Amendment, which applies to the states through the Fourteenth Amendment, protects ‘the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.’” Malloy v. Hogan, 378 U.S. 1 (1964). “The Fifth Amendment test for voluntariness substantially tracks the voluntariness test under the Due Process Clause of the Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157 (1986). “Under the Due Process Clause, ‘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.’” Miller v. Fenton, 474 U.S. 104 (1985).

“This concept of a due process protection against involuntary confessions flows from a ‘set of values reflecting society’s deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice.’” Schneckloth v. Bustamonte, 412 U.S. 218 (1973). There are two paths “for applying due process protection against involuntary confessions: (1) Those that are inherently coercive and a per se violation of the Due Process Clause and (2) those where a state actor uses interrogation techniques that because of the unique circumstances of the suspect are coercive.” Fenton.

Cases involving the first path of per se violations are rare and include things like extreme psychological pressure, brutal beatings, and other physical harm. Ashcraft v. Tennessee, 322 U.S. 143 (1944). But the second path occurs “when the interrogation techniques were improper only because, in the particular circumstances of the case, the confession is unlikely to have been the product of a free and rational will.” Fenton. Courts are to “assess the totality of all the surrounding circumstances – both the characteristics of the accused and the details of the interrogation” – to determine whether a confession is a “free and unconstrained choice by its maker.” Schneckloth. “In applying this totality-of-the-circumstances examination, ‘coercive police activity is a necessary predicate to the finding that a confession is not voluntary.’” Connelly.

This same examination applies whether the accused is an adult or a minor. Fare v. Michael C., 442 U.S. 707 (1979). The Court set forth its updated, non-exhaustive list of factors to be considered when examining the details of the interrogation includes: (1) the length of the interview, (2) the ability of the accused to communicate with the outside world, (3) delays in arraignment, (4) the length of custody, (5) the general conditions under which the statement took place, (6) the physical/psychological pressures placed on the accused, and (7) the officer’s fairness in conducting the interview to include “promises of benefit, inducements, threats, methods, or strategies used to coerce or compel a response.” State v. Gilliland, 276 P.3d 165 (Kan. 2012).

In addition, the Court expressly added to that list the presence of a Miranda advisory and waiver along with “whether a police officer negates, contradicts, or fails to honor the advisory.” Doody v. Schriro, 548 F.3d 847 (9th Cir. 2008). The Court instructed that the “voluntariness” determination doesn’t hinge on the “presence or absence of a single controlling criterion” but rather “a careful scrutiny of all the surrounding circumstances.” Quoting Schneckloth.

In addition to the foregoing updated framework, the Court stated that “other factors illustrated by caselaw” should be taken into consideration by courts when deciding whether a defendant knowingly, intelligently, and voluntarily waived his Fifth Amendment privilege against self-incrimination. Potential characteristics of the accused that courts should consider when deciding whether an officer’s conduct resulted in an involuntary confession include: “accused’s age; maturity; intellect; education; fluency in English; physical, mental, and emotional condition; and experience, including experience with law enforcement.” Gilleland.

Finally, The Court instructed that “[w]hen the protections of the Fifth and Fourteenth Amendments apply, the State bears the burden of proving by a preponderance of the evidence that an individual voluntarily, intelligently, and knowingly waived rights guaranteed by the Fifth Amendment and voluntarily – that is based on the person’s unfettered will – made a statement.” State v. Brown, 182 P.3d 1205 (Kan. 2008).  

After trial courts apply the above framework and make a voluntariness determination, if the issue is appealed, the Court explained that “Kansas appellate courts apply a standard of review that divides the voluntariness determination into questions of fact and questions of law.” State v. Sharp, 210 P.3d 590 (Kan. 2009). The trial court’s findings of “crude historical facts, the external phenomenological occurrences and events surrounding the confession” won’t be disturbed unless unsupported by the record. Culombe v. Connecticut, 367 U.S. 568 (1961). But “the determination of how the accused reacted to the external facts and the legal significance of the reaction” is reviewed de novo. Id.

Turning to the present case, the Court agreed with the trial court that the conduct of the detective, combined with G.O.’s youth and inexperience, made the confession involuntary. G.O. was persuaded that his statements would not get him into trouble unless he lied or unless he failed to disclose everything, and he was persuaded that his statements were for the purpose of helping his stepsister and the reunification of his family, rather than for a criminal investigation.

The Court also explicitly instructed that whether a confession is reliable, i.e., is truthful, has no bearing on whether it is voluntary. In State v. McCarther, 416 P.2d 290 (Kan. 1966), the court relied on the principle that coerced confessions are inherently untrustworthy. The McCarther Court included a reliability test, namely: “the State’s action must be such that it would likely cause the accused to make a false statement to obtain the benefit of the promise.” Garcia. That is, to show involuntariness, the accused had to give a false statement as the result of the State’s coercive conduct. This test was based on a hearsay exception that permits judges to admit out-of-court statements that are “trustworthy.”

Finally, the Court explained that “McCarther and its progeny conflated the hearsay statute and the voluntariness test under the Due Process Clause of the Fourteenth Amendment.” The Court stated that McCarther’s test is in direct conflict with Rogers v. Richmond, 365 U.S. 534 (1961), wherein the U.S. Supreme Court held that a standard that considers the probable truth or falsity of the statement is not a permissible standard. Thus, the Kansas Supreme Court expressly overruled McCarther and progeny.

Accordingly, the Court reversed the decision of the COA and affirmed the decision of the trial court. See: State v. G.O., 543 P.3d 1096 (Kan. 2024).


Editor’s note: Anyone interested in the issue of voluntariness of the waiver of one’s Fifth Amendment privilege against self-incrimination is encouraged to read the Court’s full opinion, which includes in-depth discussions of both Kansas and federal case law on the subject that go well beyond the scope of this summary.

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