After respondent Fulminante's 11-year-old stepdaughter was
murdered in Arizona, he left the State, was convicted of an
unrelated federal crime, and was incarcerated in a federal prison
in New York. There he was befriended by Anthony Sarivola, a fellow
inmate who was a paid informant for the Federal Bureau of
Investigation and was masquerading as an organized crime figure.
When Sarivola told Fulminante that he knew Fulminante was getting
tough treatment from other inmates because of a rumor that he was a
child murderer, and offered him protection in exchange for the
truth, Fulminante admitted that he had killed the girl and provided
details about the crime. After Fulminante was released from prison,
he also confessed to Sarivola's wife, whom he had never met before.
Subsequently, he was indicted in Arizona for first-degree murder.
The trial court denied his motion to suppress,
inter alia,
the confession to Sarivola, rejecting his contention that it was
coerced, and thus barred by the Fifth and Fourteenth Amendments. He
was convicted and sentenced to death. The State Supreme Court held
that the confession was coerced and that this Court's precedent
precluded the use of harmless error analysis in such a case. It
remanded the case for a new trial without the use of the
confession.
Held: The judgment is affirmed.
161 Ariz. 237,
778
P.2d 602, (1988), affirmed.
JUSTICE WHITE delivered the opinion of the Court with respect to
Parts I, II, and IV, concluding that:
1. The State Supreme Court properly concluded that Fulminante's
confession was coerced. The court applied the appropriate test,
totality of the circumstances,
cf. Schneckloth v.
Bustamonte, 412 U. S. 218,
412 U. S. 226,
to determine the confession's voluntariness, and plainly found that
Fulminante was motivated to confess by a fear of physical violence,
absent protection from his friend Sarivola. The court's finding,
permissible on this record, that there was a credible threat of
physical violence is sufficient to support a finding of coercion.
Blackburn v. Alabama, 361 U. S. 199,
361 U. S. 206.
Pp.
499 U. S.
285-288.
2. Under harmless error analysis, which the Court has determined
applies to the admission of coerced confessions,
post at
499 U. S.
306-312, the State has failed to meet its burden of
establishing, beyond a reasonable doubt,
Page 499 U. S. 280
that the admission of Fulminante's confession to Sarivola was
harmless. Pp.
499 U. S.
295-302.
(a) A defendant's confession is like no other evidence. It is
probably the most probative and damaging evidence that can be
admitted against him, and, if it is a full confession, a jury may
be tempted to rely on it alone in reaching its decision. The risk
that a coerced confession is unreliable, coupled with the profound
impact that it has upon the jury, requires a reviewing court to
exercise extreme caution before determining that the confession's
admission was harmless. Pp.
499 U. S.
295-296.
(b) The evidence shows that the State has failed to meet its
burden. First, the transcript reveals that both the trial court and
the State recognized that a successful prosecution depended on the
jury's believing both confessions, since it is unlikely that the
physical and circumstantial evidence alone would have been
sufficient to convict. Second, the jury's assessment of the second
confession could easily have depended on the presence of the first.
The jury might have believed that the two confessions reinforced
and corroborated each other, since the only evidence corroborating
some aspects of the second confession was in the first confession.
Without that confession, the jurors might have found the wife's
story unbelievable because the second confession was given under
questionable circumstances, and they might have believed that she
was motivated to lie in order to receive favorable treatment from
federal authorities for herself and her husband. Third, the
admission of the first confession led to the admission of evidence
about Sarivola's organized crime connections, which depicted
Fulminante as someone who willingly sought out the company of
criminals and, thus, was prejudicial to him. Finally, it is
impossible to say beyond a reasonable doubt that the judge, who,
during the sentencing phase, relied on evidence that could only be
found in the two confessions, would have passed the same sentence
without the confession. Pp.
499 U. S.
296-302.
THE CHIEF JUSTICE delivered the opinion of the Court with
respect to Part II, concluding that the harmless error rule adopted
in
Chapman v. California, 386 U. S.
18, is applicable to the admission of involuntary
confessions. The admission of such a confession is a "trial error,"
which occurs during a case's presentation to the trier of fact, and
may therefore be quantitatively assessed in the context of other
evidence presented in order to determine whether its admission is
harmless beyond a reasonable doubt.
See, e.g., Clemons v.
Mississippi, 494 U. S. 738. A
trial error differs markedly from violations that are structural
defects in the constitution of the trial mechanism, and thus defy
analysis by harmless error standards.
Gideon v.
Wainwright, 372 U. S. 335;
Tumey v. Ohio,
Page 499 U. S. 281
273 U. S. 510,
distinguished. It is also not the type of error that transcends the
criminal process. In fact, it is impossible to create a meaningful
distinction between confessions elicited in violation of the Sixth
Amendment, whose admission is subject to harmless error analysis,
see, e.g., Milton v. Wainwright, 407 U.
S. 371, and those elicited in violation of the
Fourteenth Amendment, since both confessions have the same
evidentiary impact and may have been elicited by equally egregious
conduct. Pp.
499 U. S.
306-312.
WHITE, J., delivered an opinion, Parts I, II, and IV of which
are for the Court, and filed a dissenting opinion in Part III.
MARSHALL, BLACKMUN, and STEVENS, JJ., joined Parts I, II, III, and
IV of that opinion; SCALIA, J., joined Parts I and II; and KENNEDY,
J., joined Parts I and IV. REHNQUIST, C.J., delivered an opinion,
Part II of which is for the Court, and filed a dissenting opinion
in Parts I and III.,
post, p.
499 U. S. 302.
O'CONNOR, J., joined Parts I, II, and III of that opinion; KENNEDY
and SOUTER, JJ., joined Parts I and II; and SCALIA, J., joined
Parts II and III. KENNEDY, J., filed an opinion concurring in the
judgment,
post, p.
499 U. S.
313.
Page 499 U. S. 282
JUSTICE WHITE delivered the opinion of the Court.
The Arizona Supreme Court ruled in this case that respondent
Oreste Fulminante's confession, received in evidence at his trial
for murder, had been coerced, and that its use against him was
barred by the Fifth and Fourteenth Amendments to the United States
Constitution. The court also held that the harmless error rule
could not be used to save the conviction. We affirm the judgment of
the Arizona court, although for different reasons than those upon
which that court relied.
I
Early in the morning of September 14, 1982, Fulminante called
the Mesa, Arizona, Police Department to report that his 11-year-old
stepdaughter, Jeneane Michelle Hunt, was missing. He had been
caring for Jeneane while his wife, Jeneane's mother, was in the
hospital. Two days later, Jeneane's body was found in the desert
east of Mesa. She had been shot twice in the head at close range
with a large caliber weapon, and a ligature was around her neck.
Because of the decomposed condition of the body, it was impossible
to tell whether she had been sexually assaulted.
Fulminante's statements to police concerning Jeneane's
disappearance and his relationship with her contained a number of
inconsistencies, and he became a suspect in her killing. When no
charges were filed against him, Fulminante left Arizona for New
Jersey. Fulminante was later convicted in New Jersey on federal
charges of possession of a firearm by a felon.
Fulminante was incarcerated in the Ray Brook Federal
Correctional Institution in New York. There he became
Page 499 U. S. 283
friends with another inmate, Anthony Sarivola, then serving a
60-day sentence for extortion. The two men came to spend several
hours a day together. Sarivola, a former police officer, had been
involved in loansharking for organized crime, but then became a
paid informant for the Federal Bureau of Investigation. While at
Ray Brook, he masqueraded as an organized crime figure. After
becoming friends with Fulminante, Sarivola heard a rumor that
Fulminante was suspected of killing a child in Arizona. Sarivola
then raised the subject with Fulminante in several conversations,
but Fulminante repeatedly denied any involvement in Jeneane's
death. During one conversation, he told Sarivola that Jeneane had
been killed by bikers looking for drugs; on another occasion, he
said he did not know what had happened. Sarivola passed this
information on to an agent of the Federal Bureau of Investigation,
who instructed Sarivola to find out more.
Sarivola learned more one evening in October, 1983, as he and
Fulminante walked together around the prison track. Sarivola said
that he knew Fulminante was "starting to get some tough treatment
and whatnot" from other inmates because of the rumor. App. 83.
Sarivola offered to protect Fulminante from his fellow inmates, but
told him, "
You have to tell me about it,' you know. I mean, in
other words, `For me to give you any help.'" Ibid.
Fulminante then admitted to Sarivola that he had driven Jeneane to
the desert on his motorcycle, where he choked her, sexually
assaulted her, and made her beg for her life, before shooting her
twice in the head. Id. at 84-85.
Sarivola was released from prison in November, 1983. Fulminante
was released the following May, only to be arrested the next month
for another weapons violation. On September 4, 1984, Fulminante was
indicted in Arizona for the first-degree murder of Jeneane.
Prior to trial, Fulminante moved to suppress the statement he
had given Sarivola in prison, as well as a second confession
Page 499 U. S. 284
he had given to Donna Sarivola, then Anthony Sarivola's fiancée
and later his wife, following his May, 1984, release from prison.
He asserted that the confession to Sarivola was coerced, and that
the second confession was the "fruit" of the first.
Id. at
6-8. Following the hearing, the trial court denied the motion to
suppress, specifically finding that, based on the stipulated facts,
the confessions were voluntary.
Id. at 44, 63. The State
introduced both confessions as evidence at trial, and on December
19, 1985, Fulminante was convicted of Jeneane's murder. He was
subsequently sentenced to death.
Fulminante appealed, arguing, among other things, that his
confession to Sarivola was the product of coercion and that its
admission at trial violated his rights to due process, under the
Fifth and Fourteenth Amendments of the United States Constitution.
After considering the evidence at trial as well as the stipulated
facts before the trial court on the motion to suppress, the Arizona
Supreme Court held that the confession was coerced, but initially
determined that the admission of the confession at trial was
harmless error, because of the overwhelming nature of the evidence
against Fulminante. 161 Ariz. 237,
778 P.2d
602 (1988). Upon Fulminante's motion for reconsideration,
however, the court ruled that this Court's precedent precluded the
use of the harmless error analysis in the case of a coerced
confession.
Id. at 262, 778 P.2d at 627. The court
therefore reversed the conviction and ordered that Fulminante be
retried without the use of the confession to Sarivola. [
Footnote 1] Because of differing
Page 499 U. S. 285
views in the state and federal courts over whether the admission
at trial of a coerced confession is subject to a harmless error
analysis, we granted the State's petition for certiorari, 494 U.S.
1055 (1990). Although a majority of this Court finds that such a
confession is subject to a harmless error analysis, for the reasons
set forth below, we affirm the judgment of the Arizona court.
II
We deal first with the State's contention that the court below
erred in holding Fulminante's confession to have been coerced. The
State argues that it is the totality of the circumstances that
determines whether Fulminante's confession was coerced,
cf.
Schneckloth v. Bustamonte, 412 U. S. 218,
412 U. S. 226
(1973), but contends that, rather than apply this standard, the
Arizona court applied a "but for" test, under which the court found
that but for the promise given by Sarivola, Fulminante would not
have confessed. Brief for Petitioner 14-15. In support of this
argument, the State points to the Arizona court's reference to
Bram v. United States, 168 U. S. 532
(1897). Although the Court noted in
Bram that a confession
cannot be obtained by "
any direct or implied promises, however
slight, nor by the exertion of any improper influence,'"
id. at 168 U. S.
542-543 (quoting 3 H. Smith & A. Keep, Russell on
Crimes and Misdemeanors 478 (6th ed. 1896)), it is clear this
passage from Bram, which under current precedent does not
state the standard for determining the voluntariness of a
confession, was not relied on by the Arizona court in reaching its
conclusion. Rather, the court cited this language as part of a
longer quotation from an Arizona case which accurately described
the State's burden of proof for establishing voluntariness.
See 161 Ariz. at 244, 778 P.2d at 609 (citing State v.
Thomas, 148 Ariz. 225, 227, 714 P.2d
395, 397 (1986), Malloy v. Hogan, 378 U. S.
1, 378 U. S. 7,
(1964), and Bram, 168 U.S. at 168 U. S.
542-543). Indeed, the Arizona Supreme Court stated that
a "determination regarding
Page 499 U. S. 286
the voluntariness of a confession . . . must be viewed in a
totality of the circumstances," 161 Ariz. at 243, 778 P.2d at 608,
and under that standard plainly found that Fulminante's statement
to Sarivola had been coerced.
In applying the totality of the circumstances test to determine
that the confession to Sarivola was coerced, the Arizona Supreme
Court focused on a number of relevant facts. First, the court noted
that, "because [Fulminante] was an alleged child murderer, he was
in danger of physical harm at the hands of other inmates."
Ibid. In addition, Sarivola was aware that Fulminante had
been receiving "
rough treatment from the guys.'" Id.
at 244, n. 1, 778 P.2d at 609, n. 1. Using his knowledge of these
threats, Sarivola offered to protect Fulminante in exchange for a
confession to Jeneane's murder, id. at 243, 778 P.2d at
608, and "[i]n response to Sarivola's offer of protection,
[Fulminante] confessed." Id. at 244, 778 P.2d at 609.
Agreeing with Fulminante that "Sarivola's promise was `extremely
coercive,'" id. at 243, 778 P.2d at 608, the Arizona Court
declared:
"[T]he confession was obtained as a direct result of extreme
coercion, and was tendered in the belief that the defendant's life
was in jeopardy if he did not confess. This is a true coerced
confession in every sense of the word."
Id. at 262, 778 P.2d at 627. [
Footnote 2]
Page 499 U. S. 287
We normally give great deference to the factual findings of the
state court.
Davis v. North Carolina, 384 U.
S. 737,
384 U. S. 741
(1966);
Haynes v. Washington, 373 U.
S. 503,
373 U. S. 515
(1963);
Culombe v. Connecticut, 367 U.
S. 568,
367 U. S.
603-604 (1961). Nevertheless, "the ultimate issue of
voluntariness' is a legal question requiring independent
federal determination." Miller v. Fenton, 474 U.
S. 104, 474 U. S. 110
(1985). See also Mincey v. Arizona, 437 U.
S. 385, 437 U. S. 398
(1978); Davis, supra, 384 U.S. at 384 U. S.
741-742; Haynes, supra, 373 U.S. at
373 U. S. 515;
Chambers v. Florida, 309 U. S. 227,
309 U. S.
228-229 (1940).
Although the question is a close one, we agree with the Arizona
Supreme Court's conclusion that Fulminante's confession was
coerced. [
Footnote 3] The
Arizona Supreme Court found a credible threat of physical violence
unless Fulminante confessed. Our cases have made clear that a
finding of coercion need not depend upon actual violence by a
government agent; [
Footnote 4]
a credible threat is sufficient. As we have said, "coercion can be
mental as well as physical, and . . . the blood of the accused is
not the only hallmark of an unconstitutional inquisition."
Blackburn v. Alabama, 361 U. S. 199,
361 U. S. 206
(1960).
See also Culombe, supra, 367 U.S. at
367 U. S. 584;
Reck v. Pate, 367 U. S. 433,
367 U. S.
440-441 (1961);
Rogers v. Richmond,
365 U. S. 534,
365 U. S. 540
(1961);
Payne v. Arkansas, 356 U.
S. 560,
356 U. S.
561
Page 499 U. S. 288
(1958);
Watts v. Indiana, 338 U. S.
49,
338 U. S. 52
(1949). As in
Payne, where the Court found that a
confession was coerced because the interrogating police officer had
promised that, if the accused confessed, the officer would protect
the accused from an angry mob outside the jailhouse door, 356 U.S.
at
356 U. S.
564-565,
356 U. S. 567,
so too here, the Arizona Supreme Court found that it was fear of
physical violence, absent protection from his friend (and
Government agent) Sarivola, which motivated Fulminante to confess.
Accepting the Arizona court's finding, permissible on this record,
that there was a credible threat of physical violence, we agree
with its conclusion that Fulminante's will was overborne in such a
way as to render his confession the product of coercion.
Four of us, JUSTICES MARSHALL, BLACKMUN, STEVENS and myself,
would affirm the judgment of the Arizona Supreme Court on the
ground that the harmless error rule is inapplicable to erroneously
admitted coerced confessions. We thus disagree with the Justices
who have a contrary views.
The majority today abandons what until now the Court has
regarded as the
"axiomatic [proposition] that a defendant in a criminal case is
deprived of due process of law if his conviction is founded, in
whole or in part, upon an involuntary confession, without regard
for the truth or falsity of the confession,
Rogers v.
Richmond, 365 U. S. 534, and even though
there is ample evidence aside from the confession to support the
conviction.
Malinski v. New York, 324 U. S.
401 (1945);
Stroble v. California, 343 U. S.
181;
Payne v. Arkansas, 356 U. S.
560."
Jackson v. Denno, 378 U. S. 368,
378 U. S. 376
(1964). The Court has repeatedly stressed that the view that the
admission of a coerced confession can be harmless error because of
the other evidence to support the verdict is "an impermissible
doctrine,"
Lynumn v. Illinois, 372 U.
S. 528,
372 U. S. 537
(1963); for "the admission in evidence,
Page 499 U. S. 289
over objection, of the coerced confession vitiates the judgment
because it violates the Due Process Clause of the Fourteenth
Amendment."
Payne, supra, 356 U.S. at
356 U. S. 568.
See also Rose v. Clark, 478 U. S. 570,
478 U. S. 578,
n. 6 (1986);
New Jersey v. Portash, 440 U.
S. 450,
440 U. S. 459
(1979);
Lego v. Twomey, 404 U. S. 477,
404 U. S. 483
(1972);
Chapman v. California, 386 U. S.
18,
386 U. S. 23,
and n. 8 (1967);
Haynes v. Washington, supra, 373 U.S. at
373 U. S. 518;
Blackburn v. Alabama, supra, 361 U.S. at
361 U. S. 206;
Spano v. New York, 360 U. S. 315,
360 U. S. 324
(1959);
Brown v. Allen, 344 U. S. 443,
344 U. S. 475
(1953);
Stroble v. California, 343 U.
S. 181,
343 U. S. 190,
(1952);
Gallegos v. Nebraska, 342 U. S.
55,
342 U. S. 63
(1951);
Haley v. Ohio, 332 U. S. 596,
332 U. S. 599,
(1948);
Malinski v. New York, 324 U.
S. 401,
324 U. S. 404
(1945);
Lyons v. Oklahoma, 322 U.
S. 596,
322 U. S. 597,
n. 1 (1944). As the decisions in
Haynes and
Payne,
supra, show, the rule was the same even when another
confession of the defendant had been properly admitted into
evidence. Today, a majority of the Court, without any
justification,
cf. Arizona v. Rumsey, 467 U.
S. 203,
467 U. S. 212
(1984), overrules this vast body of precedent without a word, and,
in so doing, dislodges one of the fundamental tenets of our
criminal justice system.
In extending to coerced confessions the harmless error rule of
Chapman v. California, 386 U. S. 18
(1967), the majority declares that, because the Court has applied
that analysis to numerous other "trial errors," there is no reason
that it should not apply to an error of this nature as well. The
four of us remain convinced, however, that we should abide by our
cases that have refused to apply the harmless error rule to coerced
confessions, for a coerced confession is fundamentally different
from other types of erroneously admitted evidence to which the rule
has been applied. Indeed, as the majority concedes,
Chapman itself recognized that prior cases "have indicated
that there are some constitutional rights so basic to a fair trial
that their infraction can
never be treated as harmless
error," and it placed in that category the constitutional rule
against using a defendant's coerced confession against
Page 499 U. S. 290
him at his criminal trial. 386 U.S. at
386 U. S. 23,
and n. 8 (emphasis added). Moreover, cases since
Chapman
have reiterated the rule that using a defendant's coerced
confession against him is a denial of due process of law regardless
of the other evidence in the record aside from the confession.
Lego v. Twomey, supra, 404 U.S. at
404 U. S. 483;
Mincey v. Arizona, 437 U.S. at
437 U. S. 398;
New Jersey v. Portash, supra, 440 U.S. at
440 U. S. 459;
Rose v. Clark, supra, 478 U.S. at
478 U. S. 577,
478 U. S. 578,
and n. 6.
Chapman specifically noted three constitutional errors
that could not be categorized as harmless error: using a coerced
confession against a defendant in a criminal trial, depriving a
defendant of counsel, and trying a defendant before a biased judge.
The majority attempts to distinguish the use of a coerced
confession from the other two errors listed in
Chapman
first by distorting the decision in
Payne, and then by
drawing a meaningless dichotomy between "trial errors" and
"structural defects" in the trial process. Viewing
Payne
as merely rejecting a test whereby the admission of a coerced
confession could stand if there were "sufficient evidence," other
than the confession, to support the conviction, the majority
suggests that the Court in
Payne might have reached a
different result had it been considering a harmless error test.
Post at
499 U. S. 309
(opinion of REHNQUIST, C.J.). It is clear, though, that in
Payne the Court recognized that,
regardless of
the amount of other evidence, "the admission in evidence, over
objection, of the coerced confession vitiates the judgment,"
because
"where, as here, a coerced confession constitutes a part of the
evidence before the jury and a general verdict is returned, no one
can say what credit and weight the jury gave to the
confession."
356 U.S. at
356 U. S. 568.
The inability to assess its effect on a conviction causes the
admission at trial of a coerced confession to "defy analysis by
harmless error' standards," cf. post at 499 U. S. 309
(opinion of REHNQUIST, C.J.), just as certainly as do deprivation
of counsel and trial before a biased judge.
Page 499 U. S. 291
The majority also attempts to distinguish "trial errors" which
occur "during the presentation of the case to the jury,"
post at
499 U. S. 309,
and which it deems susceptible to harmless error analysis, from
"structural defects in the constitution of the trial mechanism,"
post at
499 U. S. 309,
which the majority concedes cannot be so analyzed. This effort
fails, for our jurisprudence on harmless error has not classified
so neatly the errors at issue. For example, we have held
susceptible to harmless error analysis the failure to instruct the
jury on the presumption of innocence,
Kentucky v. Whorton,
441 U. S. 786
(1979), while finding it impossible to analyze in terms of harmless
error the failure to instruct a jury on the reasonable doubt
standard,
Jackson v. Virginia, 443 U.
S. 307,
443 U. S. 320,
n. 14 (1979). These cases cannot be reconciled by labeling the
former "trial error" and the latter not, for both concern the exact
same stage in the trial proceedings. Rather, these cases can be
reconciled only by considering the nature of the right at issue and
the effect of an error upon the trial. A jury instruction on the
presumption of innocence is not constitutionally required in every
case to satisfy due process, because such an instruction merely
offers an additional safeguard beyond that provided by the
constitutionally required instruction on reasonable doubt.
See
Whorton, supra, 441 U.S. at
441 U. S. 789;
Taylor v. Kentucky, 436 U. S. 478,
436 U. S.
488-490 (1978). While it may be possible to analyze as
harmless the omission of a presumption of innocence instruction
when the required reasonable doubt instruction has been given, it
is impossible to assess the effect on the jury of the omission of
the more fundamental instruction on reasonable doubt. In addition,
omission of a reasonable doubt instruction, though a "trial error,"
distorts the very structure of the trial, because it creates the
risk that the jury will convict the defendant even if the State has
not met its required burden of proof.
Cf. Cool v. United
States, 409 U. S. 100,
409 U. S. 104
(1972);
In re Winship, 397 U. S. 358,
397 U. S. 364
(1970).
Page 499 U. S. 292
These same concerns counsel against applying harmless error
analysis to the admission of a coerced confession. A defendant's
confession is "probably the most probative and damaging evidence
that can be admitted against him,"
Cruz v. New York,
481 U. S. 186,
481 U. S. 195
(1987) (WHITE, J., dissenting), so damaging that a jury should not
be expected to ignore it even if told to do so,
Bruton v.
United States, 391 U. S. 123,
391 U. S. 140
(1968) (WHITE, J., dissenting), and because, in any event, it is
impossible to know what credit and weight the jury gave to the
confession.
Cf. Payne, supra, 356 U.S. at
356 U. S. 568.
Concededly, this reason is insufficient to justify a
per
se bar to the use of any confession. Thus,
Milton v.
Wainwright, 407 U. S. 371
(1972), applied harmless error analysis to a confession obtained
and introduced in circumstances that violated the defendant's Sixth
Amendment right to counsel. [
Footnote 5] Similarly, the Courts of Appeals have held
that the introduction of incriminating statements taken from
defendants in violation of
Miranda v. Arizona,
384 U. S. 436
(1966), is subject to treatment as harmless error. [
Footnote 6]
Nevertheless, in declaring that it is
"impossible to create a meaningful distinction between
confessions elicited in violation of the Sixth Amendment and those
in violation of the Fourteenth Amendment,"
post at
499 U. S. 312
(opinion of REHNQUIST, C.J.), the majority overlooks the obvious.
Neither
Milton v. Wainwright nor any of the other cases
upon which
Page 499 U. S. 293
the majority relies involved a defendant's
coerced
confession, nor were there present in these cases the distinctive
reasons underlying the exclusion of coerced incriminating
statements of the defendant. [
Footnote 7] First, some coerced confessions may be
untrustworthy.
Jackson v. Denno, 378 U.S. at
378 U. S.
385-386;
Spano v. New York, 360 U.S. at
360 U. S. 320.
Consequently, admission of coerced confessions may distort the
truthseeking function of the trial upon which the majority focuses.
More importantly, however, the use of coerced confessions, "whether
true or false," is forbidden
"because the methods used to extract them offend an underlying
principle in the enforcement of our criminal law: that ours is an
accusatorial, and not an inquisitorial, system -- a system in which
the State must establish guilt by evidence independently and freely
secured, and may not by coercion prove its charge against an
accused out of his own mouth,"
Rogers v. Richmond, 365 U.S. at
365 U. S.
540-541;
see also Lego, 404 U.S. at
404 U. S. 485.
This reflects the
"strongly felt attitude of our society that important human
values are sacrificed where an agency of the government, in the
course of securing a conviction, wrings a confession out of an
accused against his will,"
Blackburn v. Alabama, 361 U.S. at
361 U. S.
206-207, as well as
"the deep-rooted feeling that the police must obey the law while
enforcing the law; that, in the end, life and liberty can be as
much endangered from illegal methods used to convict those thought
to be criminals as from the actual criminals themselves,"
Spano, supra, 360 U.S. at
360 U. S.
320-321. Thus, permitting a coerced confession to be
part of the evidence on which a jury is free to base its verdict of
guilty is inconsistent with the thesis that ours is not an
Page 499 U. S. 294
inquisitorial system of criminal justice.
Cf. Chambers v.
Florida, 309 U.S. at
309 U. S.
235-238.
As the majority concedes, there are other constitutional errors
that invalidate a conviction even though there may be no reasonable
doubt that the defendant is guilty and would be convicted absent
the trial error. For example, a judge in a criminal trial
"is prohibited from entering a judgment of conviction or
directing the jury to come forward with such a verdict,
see
Sparf & Hansen v. United States, 156 U. S.
51,
156 U. S. 105 (1895);
Carpenters v. United States, 330 U. S.
395,
330 U. S. 408 (1947),
regardless of how overwhelmingly the evidence may point in that
direction."
United States v. Martin Linen Supply Co., 430 U.
S. 564,
430 U. S.
572-573 (1977). A defendant is entitled to counsel at
trial,
Gideon v. Wainwright, 372 U.
S. 335 (1963), and, as
Chapman recognized,
violating this right can never be harmless error. 386 U.S. at
386 U. S. 23,
and n. 8.
See also White v. Maryland, 373 U. S.
59 (1963), where a conviction was set aside because the
defendant had not had counsel at a preliminary hearing without
regard to the showing of prejudice. In
Vasquez v. Hillery,
474 U. S. 254
(1986), a defendant was found guilty beyond reasonable doubt, but
the conviction had been set aside because of the unlawful exclusion
of members of the defendant's race from the grand jury that
indicted him, despite overwhelming evidence of his guilt. The error
at the grand jury stage struck at fundamental values of our
society, and "undermine[d] the structural integrity of the criminal
tribunal itself, and [was] not amenable to harmless error review."
Id. at
474 U. S.
263-264.
Vasquez, like
Chapman, also
noted that rule of automatic reversal when a defendant is tried
before a judge with a financial interest in the outcome,
Tumey
v. Ohio, 273 U. S. 510,
273 U. S. 535
(1927), despite a lack of any indication that bias influenced the
decision.
Waller v. Georgia, 467 U. S.
39,
467 U. S. 49
(1984), recognized that violation of the guarantee of a public
trial required reversal without any showing of prejudice and even
though the values
Page 499 U. S. 295
of a public trial may be intangible and unprovable in any
particular case.
The search for truth is indeed central to our system of justice,
but
"certain constitutional rights are not, and should not be,
subject to harmless error analysis, because those rights protect
important values that are unrelated to the truthseeking function of
the trial."
Rose v. Clark, 478 U.S. at
478 U. S. 587
(STEVENS, J., concurring in judgment). The right of a defendant not
to have his coerced confession used against him is among those
rights, for using a coerced confession "abort[s] the basic trial
process" and "render[s] a trial fundamentally unfair."
Id.
at
478 U. S. 577,
478 U. S. 578,
n. 6.
For the foregoing reasons, the four of us would adhere to the
consistent line of authority that has recognized as a basic tenet
of our criminal justice system, before and after both
Miranda and
Chapman, the prohibition against
using a defendant's coerced confession against him at his criminal
trial.
Stare decisis is "of fundamental importance to the
rule of law,"
Welch v. Texas Highways and Public Transp.
Dept., 483 U. S. 468,
483 U. S. 494
(1987); the majority offers no convincing reason for overturning
our long line of decisions requiring the exclusion of coerced
confessions.
IV
Since five Justices have determined that harmless error analysis
applies to coerced confessions, it becomes necessary to evaluate
under that ruling the admissibility of Fulminante's confession to
Sarivola.
Cf. Pennsylvania v. Union Gas Co., 491 U. S.
1,
491 U.S. 45
(1989) (WHITE, J., concurring in judgment in part and dissenting in
part);
id. at
491 U.S.
57 (O'CONNOR, J., dissenting).
Chapman v.
California, 386 U.S. at
386 U. S. 24,
made clear that,
"before a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless beyond
a reasonable doubt."
The Court has the power to review the record
de novo in
order to determine an error's harmlessness.
See ibid.;
Satterwhite v.
Page 499 U. S. 296
Texas, 486 U.S. at
486 U. S. 258.
In so doing, it must be determined whether the State has met its
burden of demonstrating that the admission of the confession to
Sarivola did not contribute to Fulminante's conviction.
Chapman, supra, 386 U.S. at
386 U. S. 26.
Five of us are of the view that the State has not carried its
burden, and accordingly affirm the judgment of the court below
reversing petitioner's conviction.
A confession is like no other evidence. Indeed,
"the defendant's own confession is probably the most probative
and damaging evidence that can be admitted against him. . . . [T]he
admissions of a defendant come from the actor himself, the most
knowledgeable and unimpeachable source of information about his
past conduct. Certainly, confessions have profound impact on the
jury, so much so that we may justifiably doubt its ability to put
them out of mind even if told to do so."
Bruton v. United States, 391 U.S. at
391 U. S.
139-140 (WHITE J., dissenting).
See also Cruz v. New
York, 481 U.S. at
481 U. S. 195
(WHITE, J., dissenting) (citing
Bruton). While some
statements by a defendant may concern isolated aspects of the crime
or may be incriminating only when linked to other evidence, a full
confession in which the defendant discloses the motive for and
means of the crime may tempt the jury to rely upon that evidence
alone in reaching its decision. In the case of a coerced confession
such as that given by Fulminante to Sarivola, the risk that the
confession is unreliable, coupled with the profound impact that the
confession has upon the jury, requires a reviewing court to
exercise extreme caution before determining that the admission of
the confession at trial was harmless.
In the Arizona Supreme Court's initial opinion, in which it
determined that harmless error analysis could be applied to the
confession, the court found that the admissible second confession
to Donna Sarivola rendered the first confession to Anthony Sarivola
cumulative. 161 Ariz. at 245-246, 778 P.2d at 610-611. The court
also noted that circumstantial physical evidence concerning the
wounds, the ligature around Jeneane's neck, the location of the
body, and the presence of
Page 499 U. S. 297
motorcycle tracks at the scene corroborated the second
confession.
Ibid. The court concluded that,
"due to the overwhelming evidence adduced from the second
confession, if there had not been a first confession, the jury
would still have had the same basic evidence to convict
Fulminante."
Id. at 246, 778 P.2d at 611.
We have a quite different evaluation of the evidence. Our review
of the record leads us to conclude that the State has failed to
meet its burden of establishing, beyond a reasonable doubt, that
the admission of Fulminante's confession to Anthony Sarivola was
harmless error. Three considerations compel this result.
First, the transcript discloses that both the trial court and
the State recognized that a successful prosecution depended on the
jury's believing the two confessions. Absent the confessions, it is
unlikely that Fulminante would have been prosecuted at all, because
the physical evidence from the scene and other circumstantial
evidence would have been insufficient to convict. Indeed, no
indictment was filed until nearly two years after the murder.
[
Footnote 8] App. 2. Although
the police had suspected Fulminante from the beginning, as the
prosecutor acknowledged in his opening statement to the jury,
"[W]hat brings us to Court, what makes this case fileable, and
prosecutable and triable is that later, Mr. Fulminante confesses
this crime to Anthony Sarivola and later, to Donna Sarivola, his
wife."
App. 65-66. After trial began, during a renewed hearing on
Fulminante's motion to suppress, the trial court opined,
"You know, I think from what little I know about this trial, the
character of this man [Sarivola] for truthfulness or untruthfulness
and his credibility is the centerpiece of this case, is it
not?,"
to which the prosecutor responded, "It's very important, there's
no doubt." App. 62. Finally, in his
Page 499 U. S. 298
closing argument, the prosecutor prefaced his discussion of the
two confessions by conceding,
"[W]e have a lot of [circumstantial] evidence that indicates
that this is our suspect, this is the fellow that did it, but it's
a little short as far as saying that it's proof that he actually
put the gun to the girl's head and killed her. So it's a little
short of that. We recognize that."
10 Tr. 75 (Dec. 17, 1985).
Second, the jury's assessment of the confession to Donna
Sarivola could easily have depended in large part on the presence
of the confession to Anthony Sarivola. Absent the admission at
trial of the first confession, the jurors might have found Donna
Sarivola's story unbelievable. Fulminante's confession to Donna
Sarivola allegedly occurred in May, 1984, on the day he was
released from Ray Brook, as she and Anthony Sarivola drove
Fulminante from New York to Pennsylvania. Donna Sarivola testified
that Fulminante, whom she had never before met, confessed in detail
about Jeneane's brutal murder in response to her casual question
concerning why he was going to visit friends in Pennsylvania
instead of returning to his family in Arizona. App. 167-168.
Although she testified that she was "disgusted" by Fulminante's
disclosures,
id. at 169, she stated that she took no steps
to notify authorities of what she had learned.
Id. at
172-173. In fact, she claimed that she barely discussed the matter
with Anthony Sarivola, who was in the car and overheard
Fulminante's entire conversation with Donna.
Id. at
174-175. Despite her disgust for Fulminante, Donna Sarivola later
went on a second trip with him.
Id. at 173-174. Although
Sarivola informed authorities that he had driven Fulminante to
Pennsylvania, he did not mention Donna's presence in the car or her
conversation with Fulminante.
Id. at 159-161. Only when
questioned by authorities in June, 1985, did Anthony Sarivola
belatedly recall the confession to Donna more than a year before,
and only then did he ask if she would be willing to discuss the
matter with authorities.
Id. at 90-92.
Page 499 U. S. 299
Although some of the details in the confession to Donna Sarivola
were corroborated by circumstantial evidence, many, including
details that Jeneane was choked and sexually assaulted, were not.
Id. at 186-188. As to other aspects of the second
confession, including Fulminante's motive and state of mind, the
only corroborating evidence was the first confession to
Anthony Sarivola. [
Footnote 9]
No. CR 142821 (Super.Ct. Maricopa County, Ariz. Feb. 11, 1986), pp.
3-4. Thus, contrary to what the Arizona Supreme Court found, it is
clear that the jury might have believed that the two confessions
reinforced and corroborated each other. For this reason, one
confession was not merely cumulative of the other. While in some
cases two confessions, delivered on different occasions to
different listeners, might be viewed as being independent of each
other,
cf. Milton v. Wainwright, 407 U.
S. 371 (1972), it strains credulity to think that the
jury so viewed the two confessions in this case, especially given
the close relationship between Donna and Anthony Sarivola.
Page 499 U. S. 300
The jurors could also have believed that Donna Sarivola had a
motive to lie about the confession in order to assist her husband.
Anthony Sarivola received significant benefits from federal
authorities, including payment for information, immunity from
prosecution, and eventual placement in the federal Witness
Protection Program. App. 79, 114, 129-131. In addition, the jury
might have found Donna motivated by her own desire for favorable
treatment, for she, too, was ultimately placed in the Witness
Protection Program.
Id. at 176, 179-180.
Third, the admission of the first confession led to the
admission of other evidence prejudicial to Fulminante. For example,
the State introduced evidence that Fulminante knew of Sarivola's
connections with organized crime in an attempt to explain why
Fulminante would have been motivated to confess to Sarivola in
seeking protection.
Id. at 45-48, 67. Absent the
confession, this evidence would have had no relevance, and would
have been inadmissible at trial. The Arizona Supreme Court found
that the evidence of Sarivola's connections with organized crime
reflected on Sarivola's character, not Fulminante's, and noted that
the evidence could have been used to impeach Sarivola. 161 Ariz. at
245-246, 778 P.2d at 610-611. This analysis overlooks the fact
that, had the confession not been admitted, there would have been
no reason for Sarivola to testify, and thus no need to impeach his
testimony. Moreover, we cannot agree that the evidence did not
reflect on Fulminante's character as well, for it depicted him as
someone who willingly sought out the company of criminals. It is
quite possible that this evidence led the jury to view Fulminante
as capable of murder. [
Footnote
10]
Page 499 U. S. 301
Finally, although our concern here is with the effect of the
erroneous admission of the confession on Fulminante's conviction,
it is clear that the presence of the confession also influenced the
sentencing phase of the trial. Under Arizona law, the trial judge
is the sentencer. Ariz.Rev.Stat. § 13-703(B) (1989). At the
sentencing hearing, the admissibility of information regarding
aggravating circumstances is governed by the rules of evidence
applicable to criminal trials. § 13-703(C). In this case, "based
upon admissible evidence produced at the trial," No. CR 14821,
supra, at 2, the judge found that only one aggravating
circumstance existed beyond a reasonable doubt,
i.e., that
the murder was committed in "an
especially heinous, cruel,
and depraved manner."
Ibid.; see Ariz.Rev.Stat. §
13-703(F)(6) (1989). In reaching this conclusion, the judge relied
heavily on evidence concerning the manner of the killing and
Fulminante's motives and state of mind which could only be found in
the two confessions. For example, in labeling the murder "cruel,"
the judge focused in part on Fulminante's alleged statements that
he choked Jeneane and made her get on her knees and beg before
killing her. No. CR 142821,
supra, at 3. Although the
circumstantial evidence was not inconsistent with this
determination, neither was it sufficient to make such a finding
beyond a reasonable doubt. Indeed, the sentencing judge
acknowledged that the confessions were only partly corroborated by
other evidence.
Ibid.
In declaring that Fulminante "acted with an especially heinous
and depraved state of mind," the sentencing judge relied solely on
the two confessions.
Id. at 4. While the judge found that
the statements in the confessions regarding the alleged sexual
assault on Jeneane should not be considered on the issue of cruelty
because they were not corroborated by other evidence, the judge
determined that they were worthy of belief on the issue of
Fulminante's state of
Page 499 U. S. 302
mind.
Ibid. The judge then focused on Anthony
Sarivola's statement that Fulminante had made vulgar references to
Jeneane during the first confession, and on Donna Sarivola's
statement that Fulminante had made similar comments to her.
Ibid. Finally, the judge stressed that Fulminante's
alleged comments to the Sarivolas concerning torture, choking, and
sexual assault, "whether they all occurred or not,"
ibid.,
depicted "a man who was bragging, and relished the crime he
committed."
Id. at 5.
Although the sentencing judge might have reached the same
conclusions even without the confession to Anthony Sarivola, it is
impossible to say so beyond a reasonable doubt. Furthermore, the
judge's assessment of Donna Sarivola's credibility, and hence the
reliability of the second confession, might well have been
influenced by the corroborative effect of the erroneously admitted
first confession. Indeed, the fact that the sentencing judge
focused on the similarities between the two confessions in
determining that they were reliable suggests that either of the
confessions alone, even when considered with all the other
evidence, would have been insufficient to permit the judge to find
an aggravating circumstance beyond a reasonable doubt as a
requisite prelude to imposing the death penalty.
Because a majority of the Court has determined that Fulminante's
confession to Anthony Sarivola was coerced, and because a majority
has determined that admitting this confession was not harmless
beyond a reasonable doubt, we agree with the Arizona Supreme
Court's conclusion that Fulminante is entitled to a new trial at
which the confession is not admitted. Accordingly the judgment of
the Arizona Supreme Court is
Affirmed.
[
Footnote 1]
In its initial opinion, the Arizona Supreme Court had determined
that the second confession, to Donna Sarivola was not the "fruit of
the poisonous tree," because it was made six months after the
confession to Sarivola; it occurred after Fulminante's need for
protection from Sarivola presumably had ended; and it took place in
the course of a casual conversation with someone who was not an
agent of the State. 161 Ariz. 237, 246,
778
P.2d 602, 611 (1988). The court adhered to this determination
in its supplemental opinion.
Id. at 262, 778 P.2d at 627.
This aspect of the Arizona Supreme Court's decision is not
challenged here.
[
Footnote 2]
There are additional facts in the record, not relied upon by the
Arizona Supreme Court, which also support a finding of coercion.
Fulminante possesses low average to average intelligence; he
dropped out of school in the fourth grade. Record 88i,
88
0. He is short in stature and slight in build.
Id. at 88. Although he had been in prison before,
ibid. he had not always adapted well to the stress of
prison life. While incarcerated at the age of 26, he had "felt
threatened by the [prison] population,"
id. at 88x, and he
therefore requested that he be placed in protective custody. Once
there, however, he was unable to cope with the isolation, and was
admitted to a psychiatric hospital.
Id. at 88t-88bl. The
Court has previously recognized that factors such as these are
relevant in determining whether a defendant's will has been
overborne.
See, e.g., Payne v. Arkansas, 356 U.
S. 560,
356 U. S. 567
(1958) (lack of education);
Reck v. Pate, 367 U.
S. 433,
367 U. S. 441
(1961) (low intelligence).
Cf. Schneckloth v. Bustamonte,
412 U. S. 218,
412 U. S. 226
(1973) (listing potential factors);
Culombe v.
Connecticut, 367 U. S. 568,
367 U. S. 602
(1961) (same). In addition, we note that Sarivola's position as
Fulminante's friend might well have made the latter particularly
susceptible to the former's entreaties.
See Spano v. New
York, 360 U. S. 315,
360 U. S. 323
(1959).
[
Footnote 3]
Our prior cases have used the terms "coerced confession" and
"involuntary confession" interchangeably "by way of convenient
shorthand."
Blackburn v. Alabama, 361 U.
S. 199,
361 U. S. 207
(1960). We use the former term throughout this opinion, as that is
the term used by the Arizona Supreme Court.
[
Footnote 4]
The parties agree that Sarivola acted as an agent of the
Government when he questioned Fulminante about the murder and
elicited the confession. Brief for Petitioner 19, Brief for
Respondent 2.
[
Footnote 5]
In
Satterwhite v. Texas, 486 U.
S. 249 (1988), and
Moore v. Illinois,
434 U. S. 220
(1977), the harmless error rule was applied to the admission of
evidence in violation of the Sixth Amendment Counsel Clause, but in
neither case did the error involve admitting a confession or an
incriminating statement of the defendant, which was the case in
Milton v. Wainwright.
[
Footnote 6]
Howard v. Pung, 862 F.2d 1348, 1351 (CA8),
cert.
denied, 492 U.S. 920 (1989);
United States v.
Johnson, 816 F.2d 918, 923 (CA3 1987);
Bryant v.
Vose, 785 F.2d 364, 367 (CA1),
cert. denied, 477 U.S.
907 (1986);
Martin v. Wainwright, 770 F.2d 918, 932 (CA11
1985),
modified, 781 F.2d 185,
cert. denied, 479
U.S. 909 (1986);
United States v. Ramirez, 710 F.2d 535,
542-543 (CA9 1983);
Harryman v. Estelle, 616 F.2d 870, 875
(CA5) (en banc),
cert. denied, 449 U.S. 860 (1980).
[
Footnote 7]
The same can be said of the
Miranda cases. As the Court
has recognized, a
Miranda violation
"does not mean that the statements received have actually been
coerced, but only that the courts will presume the privilege
against compulsory self-incrimination has not been intelligently
exercised."
Oregon v. Elstad, 470 U. S. 298,
470 U. S. 310
(1985).
See also New York v. Quarles, 467 U.
S. 649,
467 U. S. 654
(1984).
[
Footnote 8]
Although Fulminante had allegedly confessed to Donna Sarivola
several months previously, police did not yet know of this
confession, which Anthony Sarivola did not mention to them until
June, 1985. App. 992. They did, however, know of the first
confession, which Fulminante had given to Anthony Sarivola nearly a
year before.
[
Footnote 9]
The inadmissible confession to Anthony Sarivola was itself
subject to serious challenge. Sarivola's lack of moral integrity
was demonstrated by his testimony that he had worked for organized
crime during the time he was a uniformed police officer. App.
74-75, 104-105. His overzealous approach to gathering information
for which he would be paid by authorities,
id. at 79, was
revealed by his admission that he had fabricated a tape recording
in connection with an earlier, unrelated FBI investigation.
Id. at 998. He received immunity in connection with the
information he provided.
Id. at 129. His eagerness to get
in and stay in the federal Witness Protection Program provided a
motive for giving detailed information to authorities.
Id.
at 114, 129-131. During his first report of the confession,
Sarivola failed to hint at numerous details concerning an alleged
sexual assault on Jeneane, he mentioned them for the first time
more than a year later during further interrogation, at which he
also recalled, for the first time, the confession to Donna
Sarivola.
Id. at 90-92, 148-149. The impeaching affect of
each of these factors was undoubtedly undercut by the presence of
the second confession, which, not surprisingly, recounted a quite
similar story, and thus corroborated the first confession. Thus,
each confession, though easily impeachable if viewed in isolation,
became difficult to discount when viewed in conjunction with the
other.
[
Footnote 10]
Fulminante asserts that other prejudicial evidence, including
his prior felony convictions and incarcerations, and his prison
reputation for untruthfulness, likewise would not have been
admitted that the confession to Sarivola been excluded. Brief for
Respondent 31-32. Because we find that the admission of the
confession was not harmless in any event, we express no opinion as
to the effect any of this evidence might have had on Fulminante's
conviction.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR joins,
JUSTICE KENNEDY and JUSTICE SOUTER join as to Parts I and II, and
JUSTICE SCALIA joins as to Parts II
Page 499 U. S. 303
and III, delivering the opinion of the Court as to Part II, and
dissenting as to Parts I and III.
The Court today properly concludes that the admission of an
"involuntary" confession at trial is subject to harmless error
analysis. Nonetheless, the independent review of the record which
we are required to make shows that respondent Fulminante's
confession was not, in fact, involuntary. And even if the
confession were deemed to be involuntary, the evidence offered at
trial, including a second, untainted confession by Fulminante,
supports the conclusion that any error here was certainly
harmless.
I
The question of whether respondent Fulminante's confession was
voluntary is one of federal law.
"Without exception, the Court's confession cases hold that the
ultimate issue of 'voluntariness' is a legal question requiring
independent federal determination."
Miller v. Fenton, 474 U. S. 104,
474 U. S. 110
(1985). In
Mincey v. Arizona, 437 U.
S. 385 (1978), we overturned a determination by the
Supreme Court of Arizona that a statement of the defendant was
voluntary, saying
"we are not bound by the Arizona Supreme Court's holding that
the statements were voluntary. Instead, this Court is under a duty
to make an independent evaluation of the record."
Id. at
437 U. S.
398.
The admissibility of a confession such as that made by
respondent Fulminante depends upon whether it was voluntarily
made.
"The ultimate test remains that which has been the only clearly
established test in Anglo-American courts for two hundred years:
the test of voluntariness. Is the confession the product of an
essentially free and unconstrained choice by its maker? If it is,
if he has willed to confess, it may be used against him. If it is
not, if his will has been overborne and his capacity for
self-determination critically impaired, the use of his confession
offends due process. "
Page 499 U. S. 304
Culombe v. Connecticut, 367 U.
S. 568,
367 U. S. 602
(1961) (quoted in
Schneckloth v. Bustamonte, 412 U.
S. 218,
412 U. S.
225-226 (1973)).
In this case, the parties stipulated to the basic facts at the
hearing in the Arizona trial court on respondent's motion to
suppress the confession. Anthony Sarivola, an inmate at the Ray
Brook Prison, was a paid confidential informant for the FBI. While
at Ray Brook, various rumors reached Sarivola that Oreste
Fulminante, a fellow inmate who had befriended Sarivola, had killed
his step-daughter in Arizona. Sarivola passed these rumors on to
his FBI contact, who told him "to find out more about it."
Sarivola, having already discussed the rumors with the defendant on
several occasions, asked him whether the rumors were true, adding
that he might be in a position to protect Fulminante from physical
recriminations in prison, but that "[he] must tell him the truth."
Fulminante then confessed to Sarivola that he had, in fact, killed
his step-daughter in Arizona, and provided Sarivola with
substantial details about the manner in which he killed the child.
At the suppression hearing, Fulminante stipulated to the fact that
"[a]t no time did the defendant indicate he was in fear of other
inmates, nor did he ever seek Mr. Sarivola's
protection.'" App.
at 10. The trial court was also aware, through an excerpt from
Sarivola's interview testimony which the defendant appended to his
reply memorandum, that Sarivola believed Fulminante's time was
"running short," and that he would "have went out of the prison
horizontally." Id. at 28. The trial court found that
respondent's confession was voluntary.
The Supreme Court of Arizona stated that the trial court
committed no error in finding the confession voluntary based on the
record before it. But it overturned the trial court's finding of
voluntariness based on the more comprehensive trial record before
it, which included, in addition to the facts stipulated at the
suppression hearing, a statement made by Sarivola at the trial that
"the defendant had been receiving
rough treatment from the
guys, and if the defendant would
Page 499 U. S.
305
tell the truth, he could be protected.'" 161 Ariz. 237, 244,
n. 1, 778
P.2d 602, 609, n. 1 (1989). It also had before it the
presentence report, which showed that Fulminante was no stranger to
the criminal justice system: he had six prior felony convictions,
and had been imprisoned on three prior occasions.
On the basis of the record before it, the Supreme Court
stated:
"Defendant contends that, because he was an alleged child
murderer, he was in danger of physical harm at the hands of other
inmates. Sarivola was aware that defendant faced the possibility of
retribution from other inmates, and that, in return for the
confession with respect to the victim's murder, Sarivola would
protect him. Moreover, the defendant maintains that Sarivola's
promise was 'extremely coercive,' because the 'obvious' inference
from the promise was that his life would be in jeopardy if he did
not confess. We agree."
Id. at 243, 778 P.2d at 608.
Exercising our responsibility to make the independent
examination of the record necessary to decide this federal
question, I am at a loss to see how the Supreme Court of Arizona
reached the conclusion that it did. Fulminante offered no evidence
that he believed that his life was in danger or that he, in fact,
confessed to Sarivola in order to obtain the proffered protection.
Indeed, he had stipulated that "[a]t no time did the defendant
indicate he was in fear of other inmates, nor did he ever seek Mr.
Sarivola's
protection.'" App. at 10. Sarivola's testimony that
he told Fulminante that "if [he] would tell the truth, he could be
protected," adds little, if anything, to the substance of the
parties' stipulation. The decision of the Supreme Court of Arizona
rests on an assumption that is squarely contrary to this
stipulation, and one that is not supported by any testimony of
Fulminante.
The facts of record in the present case are quite different from
those present in cases where we have found confessions
Page 499 U. S. 306
to be coerced and involuntary. Since Fulminante was unaware that
Sarivola was an FBI informant, there existed none of "the danger of
coercion result[ing] from the interaction of custody and official
interrogation."
Illinois v. Perkins, 496 U.
S. 292,
496 U. S. 297
(1990). The fact that Sarivola was a government informant does not,
by itself, render Fulminante's confession involuntary, since we
have consistently accepted the use of informants in the discovery
of evidence of a crime as a legitimate investigatory procedure
consistent with the Constitution.
See, e.g., Kuhlmann v.
Wilson, 477 U. S. 436
(1986);
United States v. White, 401 U.
S. 745 (1971);
Hoffa v. United States,
385 U. S. 293,
385 U. S. 304
(1966). The conversations between Sarivola and Fulminante were not
lengthy, and the defendant was free at all times to leave
Sarivola's company. Sarivola at no time threatened him or demanded
that he confess; he simply requested that he speak the truth about
the matter. Fulminante was an experienced habitue of prisons, and
presumably able to fend for himself. In concluding on these facts
that Fulminante's confession was involuntary, the Court today
embraces a more expansive definition of that term than is warranted
by any of our decided cases.
II
Since this Court's landmark decision in
Chapman v.
California, 386 U. S. 18
(1967), in which we adopted the general rule that a constitutional
error does not automatically require reversal of a conviction, the
Court has applied harmless error analysis to a wide range of
errors, and has recognized that most constitutional errors can be
harmless.
See, e.g., Clemons v. Mississippi, 494 U.
S. 738,
494 U. S.
752-754 (1990) (unconstitutionally overbroad jury
instructions at the sentencing stage of a capital case);
Satterwhite v. Texas, 486 U. S. 249
(1988) (admission of evidence at the sentencing stage of a capital
case in violation of the Sixth Amendment Counsel Clause);
Carella v. California, 491 U. S. 263,
491 U. S. 266
(1989)
Page 499 U. S. 307
(jury instruction containing an erroneous conclusive
presumption);
Pope v. Illinois, 481 U.
S. 497,
481 U. S.
501-504 (1987) (jury instruction misstating an element
of the offense);
Rose v. Clark, 478 U.
S. 570 (1986) (jury instruction containing an erroneous
rebuttable presumption);
Crane v. Kentucky, 476 U.
S. 683,
476 U. S. 691
(1986) (erroneous exclusion of defendant's testimony regarding the
circumstances of his confession);
Delaware v. Van Arsdall,
475 U. S. 673
(1986) (restriction on a defendant's right to cross-examine a
witness for bias in violation of the Sixth Amendment Confrontation
Clause);
Rushen v. Spain, 464 U.
S. 114,
464 U. S.
117-118, and n. 2 (1983) (denial of a defendant's right
to be present at trial);
United States v. Hasting,
461 U. S. 499
(1983) (improper comment on defendant's silence at trial, in
violation of the Fifth Amendment Self-Incrimination Clause);
Hopper v. Evans, 456 U. S. 605
(1982) (statute improperly forbidding trial court's giving a jury
instruction on a lesser-included offense in a capital case in
violation of the Due Process Clause);
Kentucky v. Whorton,
441 U. S. 786
(1979) (failure to instruct the jury on the presumption of
innocence);
Moore v. Illinois, 434 U.
S. 220,
434 U. S. 232
(1977) (admission of identification evidence in violation of the
Sixth Amendment Counsel Clause);
Brown v. United States,
411 U. S. 223,
411 U. S.
231-232 (1973) (admission of the out-of-court statement
of a nontestifying codefendant in violation of the Sixth Amendment
Counsel Clause);
Milton v. Wainwright, 407 U.
S. 371 (1972) (confession obtained in violation of
Massiah v. United States, 377 U.
S. 201 (1964));
Chambers v. Maroney,
399 U. S. 42,
399 U. S. 52-53
(1970) (admission of evidence obtained in violation of the Fourth
Amendment);
Coleman v. Alabama, 399 U. S.
1,
399 U. S. 10-11
(1970) (denial of counsel at a preliminary hearing in violation of
the Sixth Amendment Counsel Clause).
The common thread connecting these cases is that each involved
"trial error" -- error which occurred during the presentation of
the case to the jury, and which may therefore
Page 499 U. S. 308
be quantitatively assessed in the context of other evidence
presented in order to determine whether its admission was harmless
beyond a reasonable doubt. In applying harmless error analysis to
these many different constitutional violations, the Court has been
faithful to the belief that the harmless error doctrine is
essential to preserve the
"principle that the central purpose of a criminal trial is to
decide the factual question of the defendant's guilt or innocence,
and promotes public respect for the criminal process by focusing on
the underlying fairness of the trial, rather than on the virtually
inevitable presence of immaterial error."
Van Arsdall, supra, 475 U.S. at
475 U. S. 681
(citations omitted).
In
Chapman v. California, supra, the Court stated
that
"Although our prior cases have indicated that there are some
constitutional rights so basic to a fair trial that their
infraction can never be treated as harmless error,([n. 8]) this
statement in
Fahy [v. State of Connecticut, 375 U. S. 85
(1963)] itself belies any belief that all trial errors which
violate the Constitution automatically call for reversal."
"-----"
"8.
See, e.g., Payne v. Arkansas, 356 U. S.
560 (coerced confession);
Gideon v. Wainwright,
372 U. S.
335 (right to counsel);
Tumey v. Ohio,
273 U. S.
510 (impartial judge)."
Id., 386 U.S. at
386 U. S.
23.
It is on the basis of this language in
Chapman that
JUSTICE WHITE, in dissent, concludes that the principle of
stare decisis requires us to hold that an involuntary
confession is not subject to harmless error analysis. I believe
that there are several reasons which lead to a contrary conclusion.
In the first place, the quoted language from
Chapman does
not, by its terms, adopt any such rule in that case. The language
that "[a]lthough our prior cases have indicated," coupled with the
relegation of the cases themselves to a footnote, is more
appropriately regarded as a historical reference to the holdings of
these cases. This view is buttressed by an examination of the
opinion in
Payne v. Arkansas, 356 U.
S. 560 (1958), which is the case referred to for the
proposition that
Page 499 U. S. 309
an involuntary confession may not be subject to harmless error
analysis. There the Court said:
"Respondent suggests that, apart from the confession, there was
adequate evidence before the jury to sustain the verdict. But
where, as here, an involuntary confession constitutes a part of the
evidence before the jury and a general verdict is returned, no one
can say what credit and weight the jury gave to the confession.
And, in these circumstances, this Court has uniformly held that,
even though there may have been sufficient evidence, apart from the
coerced confession, to support a judgment of conviction, the
admission in evidence, over objection, of the coerced confession
vitiates the judgment because it violates the Due Process Clause of
the Fourteenth Amendment."
Id. at
356 U. S.
567-568.
It is apparent that the State's argument which the Court
rejected in
Payne is not the harmless error analysis later
adopted in
Chapman, but a much more lenient rule which
would allow affirmance of a conviction if the evidence other than
the involuntary confession was sufficient to sustain the verdict.
This is confirmed by the dissent of Justice Clark in that case,
which adopted the more lenient test. Such a test would, of course
-- unlike the harmless error test -- make the admission of an
involuntary confession virtually risk-free for the state.
The admission of an involuntary confession -- a classic "trial
error" -- is markedly different from the other two constitutional
violations referred to in the
Chapman footnote as not
being subject to harmless error analysis. One of those cases,
Gideon v. Wainwright, 372 U. S. 335
(1963), involved the total deprivation of the right to counsel at
trial. The other,
Tumey v. Ohio, 273 U.
S. 510 (1927), involved a judge who was not impartial.
These are structural defects in the constitution of the trial
mechanism, which defy analysis by "harmless error" standards. The
entire conduct of the trial, from beginning to end, is
obviously
Page 499 U. S. 310
affected by the absence of counsel for a criminal defendant,
just as it is by the presence on the bench of a judge who is not
impartial. Since our decision in
Chapman, other cases have
added to the category of constitutional errors which are not
subject to harmless error the following: unlawful exclusion of
members of the defendant's race from a grand jury,
Vasquez v.
Hillery, 474 U. S. 254
(1986); the right to self-representation at trial,
McKaskle v.
Wiggins, 465 U. S. 168,
465 U. S.
177-178, n. 8 (1984); and the right to public trial,
Waller v. Georgia, 467 U. S. 39,
467 U. S. 49, n.
9 (1984). Each of these constitutional deprivations is a similar
structural defect affecting the framework within which the trial
proceeds, rather than simply an error in the trial process
itself.
"Without these basic protections, a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt
or innocence, and no criminal punishment may be regarded as
fundamentally fair."
Rose v. Clark, 478 U.S. at
478 U. S.
577-578 (citation omitted).
It is evident from a comparison of the constitutional violations
which we have held subject to harmless error, and those which we
have held not, that involuntary statements or confessions belong in
the former category. The admission of an involuntary confession is
a "trial error," similar in both degree and kind to the erroneous
admission of other types of evidence.
The evidentiary impact of an involuntary confession, and its
effect upon the composition of the record, is indistinguishable
from that of a confession obtained in violation of the Sixth
Amendment -- of evidence seized in violation of the Fourth
Amendment -- or of a prosecutor's improper comment on a defendant's
silence at trial in violation of the Fifth Amendment. When
reviewing the erroneous admission of an involuntary confession, the
appellate court, as it does with the admission of other forms of
improperly admitted evidence, simply reviews the remainder of the
evidence against the defendant to determine whether the admission
of the confession was harmless beyond a reasonable doubt.
Page 499 U. S. 311
Nor can it be said that the admission of an involuntary
confession is the type of error which "transcends the criminal
process." This Court has applied harmless error analysis to the
violation of other constitutional rights similar in magnitude and
importance, and involving the same level of police misconduct. For
instance, we have previously held that the admission of a
defendant's statements obtained in violation of the Sixth Amendment
is subject to harmless error analysis. In
Milton v.
Wainwright, 407 U. S. 371
(1972), the Court held the admission of a confession obtained in
violation of
Massiah v. United States, 377 U.
S. 201 (1964), to be harmless beyond a reasonable doubt.
We have also held that the admission of an out-of-court statement
by a nontestifying codefendant is subject to harmless error
analysis.
Brown v. United States, 411 U.S. at
411 U. S.
231-232;
Schneble v. Florida, 405 U.
S. 427 (1972);
Harrington v. California,
395 U. S. 250
(1969). The inconsistent treatment of statements elicited in
violation of the Sixth and Fourteenth Amendments, respectively, can
be supported neither by evidentiary or deterrence concerns nor by a
belief that there is something more "fundamental" about involuntary
confessions. This is especially true in a case such as this one,
where there are no allegations of physical violence on behalf of
the police. The impact of a confession obtained in violation of the
Sixth Amendment has the same evidentiary impact as does a
confession obtained in violation of a defendant's due process
rights. Government misconduct that results in violations of the
Fourth and Sixth Amendments may be at least as reprehensible as
conduct that results in an involuntary confession. For instance,
the prisoner's confession to an inmate-informer at issue in
Milton, which the Court characterized as implicating the
Sixth Amendment right to counsel, is similar on its facts to the
one we face today. Indeed, experience shows that law enforcement
violations of these constitutional guarantees can involve conduct
as egregious as police conduct used to elicit statements in
violation of the Fourteenth Amendment. It is thus
Page 499 U. S. 312
impossible to create a meaningful distinction between
confessions elicited in violation of the Sixth Amendment and those
in violation of the Fourteenth Amendment.
Of course an involuntary confession may have a more dramatic
effect on the course of a trial than do other trial errors -- in
particular cases, it may be devastating to a defendant -- but this
simply means that a reviewing court will conclude in such a case
that its admission was not harmless error; it is not a reason for
eschewing the harmless error test entirely. The Supreme Court of
Arizona, in its first opinion in the present case, concluded that
the admission of Fulminante's confession
was harmless
error. That court concluded that a second and more explicit
confession of the crime made by Fulminante after he was released
from prison was not tainted by the first confession, and that the
second confession, together with physical evidence from the wounds
(the victim had been shot twice in the head with a large calibre
weapon at close range and a ligature was found around her neck) and
other evidence introduced at trial rendered the admission of the
first confession harmless beyond a reasonable doubt. 161 Ariz. at
24246, 778 P.2d at 61611.
III
I would agree with the finding of the Supreme Court of Arizona
in its initial opinion -- in which it believed harmless error
analysis was applicable to the admission of involuntary confessions
-- that the admission of Fulminante's confession was harmless.
Indeed, this seems to me to be a classic case of harmless error: a
second confession giving more details of the crime than the first
was admitted in evidence and found to be free of any constitutional
objection. Accordingly, I would affirm the holding of the Supreme
Court of Arizona in its initial opinion, and reverse the judgment
which it ultimately rendered in this case.
Page 499 U. S. 313
JUSTICE KENNEDY, concurring in the judgment.
For the reasons stated by THE CHIEF JUSTICE, I agree that
Fulminante's confession to Anthony Sarivola was not coerced. In my
view, the trial court did not err in admitting this testimony. A
majority of the Court, however, finds the confession coerced, and
proceeds to consider whether harmless error analysis may be used
when a coerced confession has been admitted at trial. With the case
in this posture, it is appropriate for me to address the harmless
error issue.
Again for the reasons stated by THE CHIEF JUSTICE, I agree that
harmless error analysis should apply in the case of a coerced
confession. That said, the court conducting a harmless error
inquiry must appreciate the indelible impact a full confession may
have on the trier of fact, as distinguished, for instance, from the
impact of an isolated statement that incriminates the defendant
only when connected with other evidence. If the jury believes that
a defendant has admitted the crime, it doubtless will be tempted to
rest its decision on that evidence alone, without careful
consideration of the other evidence in the case. Apart, perhaps,
from a videotape of the crime, one would have difficulty finding
evidence more damaging to a criminal defendant's plea of innocence.
For the reasons given by JUSTICE WHITE in
499 U.
S. I cannot with confidence find admission of
Fulminante's confession to Anthony Sarivola to be harmless
error.
The same majority of the Court does not agree on the three
issues presented by the trial court's determination to admit
Fulminante's first confession: whether the confession was
inadmissible because coerced; whether harmless error analysis is
appropriate; and if so whether any error was harmless here. My own
view that the confession was not coerced does not command a
majority.
In the interests of providing a clear mandate to the Arizona
Supreme Court in this capital case, I deem it proper to accept in
the case now before us the holding of five Justices that
Page 499 U. S. 314
the confession was coerced and inadmissible. I agree with a
majority of the Court that admission of the confession could not be
harmless error when viewed in light of all the other evidence, and
so I concur in the judgment to affirm the ruling of the Arizona
Supreme Court.