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Statements – Voluntariness – Private Citizen’s Coercion

State v. Marvin J. Moss, 2003 WI App 239, PFR filed 10/27/03
For Moss: F.M. Van Hecke

Issue/Holding:

¶2. The issue in this case is whether a defendant’s incriminating statement improperly coerced by a person who is not a state agent offends constitutional due process such that the statement is inadmissible. We conclude that there is no due process violation where, as in this case, a private citizen coerces a confession from another private citizen and there is no state action or state nexus. We uphold the trial court’s order denying Moss’s motion to suppress and affirm the judgment.

Moss, a pastor, illicitly touched a girl he was counseling. He sought help himself and confessed to a psychologist-minister (Fringer), but only after assurances that his statements would be confidential and privileged. Fringer then falsely told Moss that he was a “mandatory reporter” (see § 48.981(2)(a)), and that Moss would be turned in if he didn’t self-report. The court of appeals draws the following conclusions: Fringer was a private actor, not a state agent; Fringer was not a mandatory reporter; Fringer’s actions amounted to coercion. ¶¶10-12. However, coercivepolice conduct is required to make a statement involuntary, under Colorado v. Connelly, 479 U.S. 157 (1986), ¶13; State v. Bowe, 88 P.2d 538, 542 (Haw. 1994) rejected, ¶20.

Connelly gave a statement to the police and therefore the case stands for the idea that a statement that is the product only of someone’s mental abnormality is not the product of coercion at all. In other words, you can read the holding to lay stress on the need for coercion rather than for policeactivity, because that’s what was raised by the facts. But Connelly nonetheless contains broad language: “[t]he most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause.” 479 U.S. at 166. Moss follows that prescription, ¶20 (“we are bound by the decisions of the United States Supreme Court on matters of federal law”). But that still leaves open the possibility of suppression (or, to be technical, exclusion) on some other theory. Moss itself goes on to acknowledge such a possibility:

¶21. Our rejection of Moss’s constitutional due process claim does not render statements such as these automatically admissible. Rather, as the Connelly Court recognized, the Constitution leaves “sweeping inquiries into the state of mind of a defendant who has confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State” to be resolved by state laws governing the admission of evidence and erects no standard of its own in this area. Connelly, 479 U.S. at 166-67. Thus, “[a] statement rendered by one in the condition of [Connelly] might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary rules of the forum, and not by the Due Process Clause of the Fourteenth Amendment.” Id. at 167 (citation omitted). Therefore, given the coercive effect of Fringer’s actions, Moss could have availed himself of Wisconsin’s rules of evidence to challenge the reliability of his statement. See, e.g., Boyer v. State, 91 Wis. 2d 647, 662, 284 N.W.2d 30 (1979) (a trial court has the authority to exclude a statement pursuant to Wis. Stat. § 904.03 where the statement is “so unreliable that its probative value is substantially outweighed by the danger of prejudice and confusion”).

Some states (se, e.g. Bowe), will suppress privately coerced statements as a matter of common law; see also State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000). Other states don’t. E.g.,State v. Pappaconstantinou, 352 Md. 167, 721 A.2d 241 (1998) (“We hold that Maryland’s common law voluntariness requirement does not apply to confessions elicited by purely private conduct. Consistent with our prior case law, the voluntariness requirement is applicable when a confession is elicited by one in authority, or in his or her presence and with his or her sanction.”) It simply isn’t clear whether Moss (which did not discuss this theory for suppression; excluding a statement under § 904.03 isn’t the same thing) denies the possibility of suppression on this basis. For a survey of cases in other states, see Annot., Coercive Conduct by Private Person as Affecting Admissibility of Confession under State Statutes or Constitutional Provisions–Post-Connelly Cases, 48 A.L.R.5th 555 (1997).)

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