Transcript

IN THE SUPREME COURT OF THE UNITED STATES

COLORADO, Petitioner, v. FRANCIS BARRY CONNELLY

No. 85-660

October 8, 1986

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:57 o'clock a.m.

APPEARANCES:

NATHAN B. COATS, ESQ., Deputy District Attorney of Colorado, Denver, Colorado; on behalf of the petitioner.

ANDREW J. PINCUS, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States as amicus curiae in support of petitioner.

THOMAS M. VAN CLEAVE, III, ESQ., Denver, Colorado; on behalf of respondent.

PROCEEDINGS

CHIEF JUSTICE REHNQUIST: We will hear arguments next in No. 85-660, Colorado versus Francis Barry Connelly.

Mr Coats, we will wait just a minute until the crowd clears out, assuming they are planning to do that.

You may proceed any time you are ready, Mr. Coats.

ORAL ARGUMENT OF NATHAN B. COATS, ESQ., ON BEHALF OF THE PETITIONER

MR. COATS: Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court, factually and procedurally I think this case is very straightforward, but the facts of the case are peculiarly important to the issues that are posed, and we are here on a writ of certiorari to the Colorado Supreme Court in a case in which the Colorado court upheld the suppression of a murder confession.

Factually, here is what happened. The respondent, who is the criminal defendant in the case below, came up to a uniformed police officer in downtown Denver in August of 1983, and he told him that he had killed someone, and he wanted to tell the officer about it. The officer advised the defendant of his Miranda rights, which the defendant said he understood, and the officer later testified that he specifically advised the defendant as well that he didn't have to talk to him, but the defendant said it would be all right, that his conscience had been bothering him and he wanted to talk to him.

The defendant then subsequently told the officer and other officers --

QUESTION: Mr. Coats, may I interrupt just a second to get one thing?

MR. COATS: Yes, sir.

QUESTION: Did the officer take the defendant into custody?

MR. COATS: He handcuffed the defendant at that time.

QUESTION: Would you agree that was custody, or do you take the position it was not custody?

MR. COATS: No, I believe that was custody, Your Honor.

QUESTION: And that was at the time he gave the Miranda warnings or right before he gave the Miranda warning?

MR. COATS: It is not entirely clear, but it was almost contemporaneously, yes.

QUESTION: So that you have one statement volunteered before custody, "I killed someone," and then you have Miranda warnings, and then some other statements after that.

MR. COATS: Yes, sir, I believe that's correct.

QUESTION: So they may possibly at least present different issues.

MR. COATS: Yes, sir. The defendant then told that officer and other officers after the point of custody that he had killed a young Indian girl named Mary Ann Junta that he had been traveling with in November or December of the prior year, which would be 1982, and he told them also that he had killed her in a particular location in southwest Denver.

The police were able to determine pretty quickly that they -- an unidentified female body had been discovered in April of 1983 and the defendant actually then took a couple of the officers out to the scene of the murder, showed them where he had committed the murder and how he had hidden the body and covered it with a mattress.

The defendant told his public defender, members of the public defender's staff shortly after that that he had come to Denver from Boston because voices told him to do that, so the defendant was sent to the Colorado State Hospital for a competency exam. Based on the psychiatric report, he was found to be incompetent to proceed and he remained at that status for about six months until the same psychiatrist filed a new report saying that he then considered the defendant competent.

Now, at that point the defendant filed a motion to suppress all of his statements and to suppress all of the evidence derived from them because his confession was involuntary and because it was in violation of Miranda. All the facts that I have already mentioned came out at the suppression hearing, but in addition to those facts the psychiatrist testified at the suppression hearing that the defendant suffered from chronic schizophrenia, that he had something which the psychiatrist called command auditory halucinations, and that the defendant had told him that he had experienced the voice of God telling him to come back from Boston to Denver and to either confess or to kill himself.

The trial court granted the motion to suppress, but he did so in a way on narrow grounds. Despite the fact that he found that the the police had not done anything untoward or caused the confession, he nevertheless found that the defendant was incapable of making a voluntary confession for the reason that he felt compelled to follow the mandate of God, which the court found to be a product of his psychosis.

The Colorado Supreme Court affirmed, but in affirming it made a slight refinement on the suppression order which is very important for the review here. It upheld suppression of the initial confession, the initial statement, the one that was unsolicited, as involuntary, as a violation of the due process old voluntariness standard.

However, it upheld suppression of all the statements after that point as -- well, for the reason that as a result of the defendant's mental condition it felt that he was incapable of making an effective waiver of Miranda rights and therefore all subsequent statements were in violation of Miranda.

Let me add one note about Colorado procedures here that might be helpful in explaining the nature of that ruling. In Colorado and, as I understand, some other jurisdictions in the country, because of the language in Miranda that says the prosecution will bear a heavy burden in establishing a waiver of Miranda rights, the burden on the people in Colorado is higher to establish a waiver of Miranda rights than it would be to establish the voluntariness of the confession itself. In Colorado we use the formula by a preponderance of the evidence to establish the voluntariness of a confession, but by clear and convincing evidence to show an effective waiver of Miranda rights.

It seems to me that there are two things about these facts that make this case, and that make it different from the other cases that the Court has decided in this area. The first one, pretty obviously, is the fact that the initial confession was completely unsolicited. The police did not know the defendant at all. They had done nothing to him at that point.

Let me say quickly that the reason that that is important, though, I do not think is because completely spontaneous or unsolicited confessions are very prevalent, and we don't know what to do with unsolicited confessions. As was the case here, and I think would almost always be the case, there may be -- even where there is a spontaneous confession of this kind or spontaneous statement, there is going to be -- the significant material that comes out will probably be in response to follow-up question of some kind.

So, probably the complete absence of police behavior is not the central point. By the way, probably a larger class of confessions that will be affected very much by what is decided in this case in the area of statements made that have nothing to do with police practices probably would be statements made to private individuals, and what I am thinking of particularly are statements, statements made to private individuals in which a defendant subsequently comes forward and asserts that he was intoxicated, or for some other reason that he didn't voluntarily make that statement to a private individual and at that point seeks a Jackson v. Denno hearing to establish voluntariness.

QUESTION: Mr. Coats, do I understand you correctly to say that Colorado as a matter of state law requires a clear and convincing standard of proof for waiver of Miranda rights?

MR. COATS: That's true, Your Honor, and Colorado I don't believe has ever said that there is something separate about Colorado law that requires that. We have been construing that language from Miranda that requires a heavy -- that says the prosecution will bear a heavy burden. The effect of that --

QUESTION: Well, I don't understand. Is it your position that the Colorado courts understand that no Federal decision from this Court has required it, but that they require a higher standard as a matter of state law?

MR. COATS: No, Your Honor, I don't believe there is anything in Colorado law that suggests it is based on a separate state provisions. It is an attempt to construe the mandate of this Court in Miranda.

QUESTION: They think it is a matter of Federal law then?

MR. COATS: I believe so. Yes, sir. It, of course, has the effect which sometimes can appear anomalous, of requiring a higher standard to waive the prophylactic warning than to establish that there was no violation of the Constitution itself.

The reason why I think this -- the unsolicited nature of the confession is so important is that unlike the other cases in this area, in this whole voluntariness standard area, in which we always have to deal with the totality of circumstances, not having any police action whatsoever poses very clearly the question, the issue. Without regard to a particular balance there is simply no question here under the due process standard without some kind of causal relationship between police action and attempting to extract --

QUESTION: Mr. Coats, may I just so I can follow your argument, are you addressing yourself now just to the first question whether the initial voluntary statement is admissible or are you treating it as though the statements that followed the Miranda warnings and the custody are to be treated all by the same standard?

MR. COATS: No, sir, I was treating only the first statement at this point.

QUESTION: Only the first --

MR. COATS: It seems to me that is the first significant point here. And I think that is really the significance of the unsolicited nature of the confession, is that it poses a very clear issue to be resolved. It gives the Court an opportunity or to take to, in effect, refine the articulation of what we have described as the content of this complex of values that underlies the due process prohibition.

And I think very closely related, if not the same question, is the question about the purposes to be served by suppressing confessions as involuntary. I suppose the -- I think that -- and really what I meant to be saying here is, think the importance of that decision will not only go to the question of unsolicited confessions, although that is the way it is posed here.

QUESTION: I have trouble finding -- when a man walks up and says "I want to confess," I have trouble finding Miranda in there.

MR. COATS: Your Honor, I don't believe the -- I think you are entirely right, and I don't think the Miranda issue is --

QUESTION: You have been arguing Miranda ever since you have been up there. You have been arguing Miranda.

MR. COATS: I intended to be arguing the whole due process voluntariness standard with regard to that first statement. I think the first statement is -- you are entirely correct. It is purely a question of Fourteenth Amendment. Would it be suppressed as involuntary, apart from any requirement of Miranda?

QUESTION: I don't see what possible constitutional provision or what law in the world can prohibit a man from standing up and saying "I did it." What is wrong with that? What Fourteenth Amendment problems are involved? You mean a man can't confess?

MR. COATS: I believe that's what the Colorado Supreme Court said in this case, Your Honor.

QUESTION: Yeah, but why do you have to bring Miranda in?

MR. COATS: Well, I don't think Miranda does apply specifically to that part, and I think even Colorado made that distinction then, that the only question there is in some sense would this violate fundamental fairness? Is it something that we prohibit as a matter of due process of law? And then Colorado made the sharp distinction and found a violation of Miranda for all subsequent statements. So I take your point fully.

I believe that there is no violation of fundamental fairness there, and this Court very recently -- and let me say I think in a sense since Colorado decided this case with regard to the first issue, this Court in Miller versus Fenton has very strongly answered the very question that is before us. The only difference is, it did not actually have a case or controversy dealing with this particular situation in which there was a confession without any police participation.

But in resolving the question whether the old due process standard is primarily a legal or a factual question, I think in Miller versus Fenton the Court said, to my way of thinking, very clearly that it always involves a legal consideration, and as a matter of fact in Miller versus Fenton the Court specifically addressed those cases and that theory relied on by the Colorado court, and rejected it, I think.

It cited Culumbe for that group of cases, but it said that although at times in the past the Court seemed to have talked about voluntariness in terms of -- in terms of psychological fact, that nevertheless always present, the thread running through all of those cases was this uniquely legal question, and that the primary consideration there was whether the police had behaved in a way in attempting to extract the confession that was compatible with our system of accusatorial justice, our accusatorial system of justice.

QUESTION: The due process clause, Mr. Coats, of course, says you shan't be denied due process by the state. What was the Colorado Supreme Court's answer as to how the state denied due process when, as Justice Marshall points out, the man simply said "I want to confess?"

MR. COATS: Your Honor, Colorado's theory was that by using the confession at trial, that was sufficient state action to violate the due process clause.

QUESTION: Regardless of the fact there was no police, as you say, no causal connection between the police action and the statement?

MR. COATS: That's absolutely correct, Your Honor, and may I say very quickly, too, that they took that from a prior holding of the Court in which there was a confession to a private individual or a statement to a private individual, and Colorado had previously held that police action is not at all required. There need be no police action participation in extracting a confession at all in order for the due process clause to apply and to exclude evidence as involuntary.

The second thing that it seems to me is very important about this case and really sets up the entire second half of the problem, the Miranda type problem, is the nature of the defendant's mental disorder. The psychiatric testimony here was -- it drew an absolutely clear distinction between what this Court has called the two dimensions of the standard for waiver of Miranda rights.

And the doctor, the psychiatrist, even the defense psychiatrist said that the defendant's cognitive capabilities were not significantly affected by his mental disorder, said specifically that he -- the doctor could not say that he couldn't understand his Miranda rights. He could understand his Miranda rights.

QUESTION: Mr. Coats, now we are on the second question. I would like to ask you a question if I may.

MR. COATS: Yes, sir.

QUESTION: The trial court as I understand it found that the defendant did not knowingly, intelligently, and voluntarily waive his Miranda rights because he was mentally incompetent at the time. Are you asking us to set aside that finding of fact?

MR. COATS: Yes, sir, I am. I think --

QUESTION: That is what is at issue on the second question, is whether we agree with the finding of fact?

MR. COATS: That is what is at issue. That is exactly what is at issue, and I think --

QUESTION: And that finding of fact was approved by the Colorado Supreme Court?

MR. COATS: I think what the trial judge -- well, the trial judge found that the -- I think it is clear from his finding that he found the defendant was not capable of making a voluntary confession, and then he said, then the trial judge said, even it we were to get that far, it would be impossible to show that he made a voluntary waiver of Miranda rights since he couldn't make a voluntary confession.

I don't think he ever made a finding that the defendant was incapable of knowing, with regard to the second dimension involved in the Miranda --

QUESTION: No, but he did squarely find that he did not knowingly, intelligently, and voluntarily waive his Miranda rights --

MR. COATS: Yes, sir. That's right.

QUESTION: -- because he was mentally incompetent.

MR. COATS: Well, that's right. He found that as a body. He didn't find that separately he couldn't know and intelligently waive his Miranda rights. He with that phrase found that the defendant could not effectively waive his Miranda rights.

QUESTION: And what you are saying is that the trial court's understanding of mental incompetence was erroneous in that case?

MR. COATS: Yes, sir, that's right, and it seems to me because the second dimension here by all of the testimony is taken out of consideration, that is, the cognitive area, whether he knew his Miranda rights which, by the way, in Moran versus Burbine, if it had not been clear before, I think the Court made clear is all that a defendant must know.

Those rights were designed specifically to inform him what he must know in order to waive Miranda. The only thing at issue then is the voluntariness portion, and it seems to me that poses a clear comparison, a requirement to -- calls for an articulation of the relationship between voluntariness of the confession and voluntariness of the waiver of Miranda rights.

QUESTION: Are you sure that you answered Justice Stevens' question correctly? I hadn't understood that to be the argument you were making here, that as a factual matter you want us to overturn the District Court's finding.

MR. COATS: That's true.

QUESTION: I thought that your argument is that the District Court's finding was based upon a misperception of the law --

MR. COATS: That's entirely correct.

QUESTION: -- as to what a voluntary waiver of Miranda rights consists of.

MR. COATS: Yes sir. That's right. That is what I meant to be saying.

QUESTION: And what was the error of law that the District Judge committed?

MR. COATS: He believed that the notion of -- that voluntariness does not require any participation by the state at all in overcoming the defendant's will.

QUESTION: That is on the first point. That is on the first point. I am talking about the second question.

MR. COATS: With regard to the second question, I believe that the question is exactly the same. Once we have taken out the second dimension of the Miranda problem, once we have taken out the cognitive area, which there is no question about here, and the judge did not make any findings with regard to, all that is left is the volitional element with regard to waiver, and I believe the volitional element with regard to waiver is identical to the volitional element with regard to the confession itself.

QUESTION: You attach no significance to the trial judge's words that he did not knowingly, intelligently as well as --

MR. COATS: I don't believe he ever dealt with that separately, Your Honor. I think he used the formula --

QUESTION: Well, he says it. That is exactly what his words were.

MR. COATS: I think he said he did not voluntarily, knowingly, and intelligently make a waiver.

QUESTION: Well, it is the other order, knowingly, intelligently, and voluntarily.

MR. COATS: I would like to equate that with -- for the reason that he did not voluntarily make a waiver in this case, from all of his prior findings, it seems to me that is what the judge is deciding.

I wonder if I could reserve --

QUESTION: May I ask just one other question?

MR. COATS: Yes.

QUESTION: In Justice Erickson's partial dissent, I guess he agreed that the procedure -- did he agree with your position on the Miranda question or just on the first issue?

MR. COATS: He only dissented on the first issue.

QUESTION: Right.

MR. COATS: And I may point out as well his theory was actually more narrow even on the first issue. He dealt with the question of internal psychological factors only and didn't specifically address the question of whether there had to be police participation.

Thank you very much. I would like to reserve what time I have for rebuttal.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Coats.

We will hear now from you, Mr. Pincus.

ORAL ARGUMENT OF ANDREW J. PINCUS, ESQ., ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PETITIONER

MR. PINCUS: Thank you, Mr. Chief Justice, and may it please the Court, at the outset I would like to address myself to Justice Stevens' question about the trial court's finding. I think the trial court did first say that respondent did not waive his right voluntarily, knowingly, and intelligently, but then he went on to give reasons for that conclusion, and that is Pages 48 to 49 of the joint appendix.

And he says, the reason for that was that respondent, and I am quoting, "would do anything to follow the mandate of God to confess because his only alternative was to kill himself."

So it seems to us pretty clear from the reasons that the trial judge gave that what he was in fact finding was that the waiver was not voluntary, so we don't think that the Court has to overturn the trial judge's factual findings. We think that the appropriate course is for the Court to find that that factor is just simply irrelevant in assessing the validity of the Miranda waiver.

In considering the questions that are before the Court in this case, we think it is helpful to step back from the two specific constitutional provisions involved and consider for a moment the policies that are implicated by a claim that evidence should be suppressed.

The Court has stated many times the general rule that society has a right to every man's evidence, and it is recognized that the strong interests in law enforcement and the proper functioning of the truthseeking process favor placing all probative evidence before the trier of fact in a criminal proceeding, and so the question in this case and in any case where a defendant seeks to have particular evidence suppressed is whether that important general rule should give way because the omission of the evidence would contravene another important public policy.

QUESTION: Mr. Pincus, you say the question in this case. Do you agree there are two separate questions?

MR. PINCUS: Yes, Your Honor, I think there are two separate questions, but I think they are related. I think even respondent acknowledges in its brief that its position is similar to ours, that the same standard should govern both the due process issue and the voluntariness issue, although they have a different standard.

QUESTION: He would like us to decide them both on the basis of the second. You would like us to decide them both on the basis of the first.

MR. PINCUS: Well, no, Your Honor. I think our position and I think their position also is that the same values are implicated by the two constitutional protections at issue. The Court has stated that the purpose of both the due process protection in the confession context and the purpose of the privilege against compelled self-incrimination is to protect an individual from government compulsion to confess, and we think in the due process area that means that where there is no government compulsion the admission of the confession does not offend due process, and in the Fifth Amendment self-incrimination privilege area we think that where there is no government compulsion, then a waiver under Miranda is valid.

QUESTION: Mr. Pincus, there was no finding in this case that the defendant was insane, was there?

MR. PINCUS: No, the trial court specifically said that he was not reaching the question whether respondent was actually incompetent at the time he confessed.

QUESTION: Would your position be different if there had been a finding that the defendant was insane at the time he made the initial statement and thereafter also?

MR. PINCUS: No, Your Honor, it would not be. Our position is that the questions here just go to whether this evidence should be admitted at trial. They don't go to how the defendant should be punished or whether he should be found criminally culpable for his action. It just goes to the question whether this evidence should be submitted to the trier of fact, and we think as to that question that the defendant's, the suspect's competence or incompetence at the time he makes the statement is just irrelevant.

QUESTION: Well, I suppose a defendant's competence to the extent that it goes to his cognitive ability at the time is relevant to the Miranda waiver inquiry, is it not?

MR. PINCUS: Yes, it would be, Your Honor. Of course, respondent's mental condition doesn't present that question here because of the psychiatrist's evidence, but it might be -- we mention in our brief that it might be that a suspect's mental condition would render him more susceptible to a police suggestion, and that might be something to be taken into account in determining whether the waiver was proper, but where there is absolutely no government compulsion and where it is clear that the suspect's mental condition would not render him more susceptible to government action, we don't think that there is any reason to strike down his waiver.

Just elaborating a little bit on the Miranda issue, I think the Court last term in Moran against Burbine made clear that the Miranda waiver inquiry should be shaped with reference to the purposes of Miranda and the purposes of the self-incrimination privilege that Miranda is designed to protect, and here it seems quite clear that there is no reason in this case to forbid the introduction of respondent's confessions into evidence because there is no possibility that they were obtained by government compulsion. So there is no --

QUESTION: Mr. Pincus, what if the defendant at a trial like this claims that a confession being offered was beaten out of him by his brother-in-law, who is a private individual? Now, can the defendant attack that only on the grounds of its trustworthiness?

MR. PINCUS: Yes, Your Honor, we think that that is a question for the jury, and if the confession is admitted into evidence the defendant would have an opportunity to put before the jury all of the relevant circumstances surrounding the confession. The jury would be able to weigh those questions of reliability, and the trial judge, of course, under evidentiary rules does exercise some discretion in deciding whether particular evidence is more prejudicial than probative, and it might be that it wouldn't be admissible on those grounds, but we don't think that these constitutional provisions --

QUESTION: Let me ask you, to follow up on that, may I -- supposing he -- the defendant is given Miranda warnings by a police officer, and he doesn't waive, then his brother comes in and twists his arm and said, by golly, you are going to waive and confess, and his brother forces him to waive his rights. The police do nothing forcing him.

What about that case? Would the waiver be good or not? And how is that different from having no voluntariness in this case?

MR. PINCUS: Well, Your Honor, we think that the waiver would still be good in this case, because the confession --

QUESTION: But would it be good in my hypothetical case?

MR. PINCUS: No, in both cases --

QUESTION: You think it would be good?

MR. PINCUS: -- in your hypothetical because the confession still would not have been obtained by government compulsion, and that is what the Fifth Amendment privilege is designed to protect against.

QUESTION: I couldn't understand why you paused so long.

(General laughter.)

MR. PINCUS: I am sorry, Your Honor.

QUESTION: I was sure that was your position.

MR. PINCUS: And if that compulsion isn't present, we just think that there is no problem with admitting into evidence.

QUESTION: In other words, the word "voluntary" really means absence of official compulsion. That is the only requirement.

MR. PINCUS: Yes, Your Honor, because that is the only requirement that is imposed by the self-incrimination privilege. We think if that wasn't the rule the results, as I was saying, would be quite peculiar, because the situation would be that quite probative evidence would be barred from the trier of fact where it wasn't possible --

QUESTION: Of course, that would be true if the police exerted the compulsion, too. That is one of the costs of this.

MR. PINCUS: Well, but it wouldn't be -- in this situation -- where the police exert the coercion, that is where the privilege is implicated. Where there is absolutely no police coercion, the underlying privilege isn't implicated, and it would be quite peculiar to read Miranda to exclude a whole class of evidence that had nothing to do with the underlying constitutional value.

QUESTION: It would be quite peculiar to read Miranda to exclude that class of involuntary confessions.

MR. PINCUS: Yes. And as we set forth more fully in our brief, what could flow from the Colorado Supreme Court's ruling really is a whole parade of possibilities of questions about free will and questions about whether particular evidence could be excluded that have nothing to do with the confession context. There often are situations where suspects have compulsions to leave clues at the scene of the crime or to write incriminating letters to the police, and under the theory that the Colorado Supreme Court adopted those -- that evidence also might be subject to exclusion on the grounds that it wasn't the product of a free will, and we think that where there is no government compulsion implicated, that there is no reason to preclude the trier of fact from considering that evidence.

Unless the Court has any further questions.

CHIEF JUSSTICE REHNQUIST: Thank you, Mr. Pincus.

We will hear now from you, Mr. Van Cleave.

ORAL ARGUMENT OF THOMAS M. VAN CLEAVE, III, ESQ., ON BEHALF OF THE RESPONDENT

MR. VAN CLEAVE: Mr. Chief Justice, and may it please the Court, in this case the uncontradicted medical evidence at the suppression hearing established that Francis Connelly was afflicted with a chronic paranoid schizophrenia at the time he walked up to Officer Anderson and stated he wanted to confess a murder.

This is the statement that is under the voluntariness aspect. After he made that statement, Officer Anderson advised him of his rights, and as the people indicate, took him into custody. Further questioning resulted in further statements, and eventually Mr. Connelly led the police to a location where he said he had killed a woman.

We acknowledge that Officer Anderson did absolutely nothing in this case but to listen to Mr. Connelly's statement in admitting that he had killed someone. The trial court ruled that the overwhelming evidence of Mr. Connelly's --

QUESTION: Well, Mr. Van Cleave, when you say he did nothing, he did put cuffs on him and give him Miranda warnings, didn't he, the officer?

MR. VAN CLEAVE: Oh, yes, Your Honor, but I am speaking now strictly as to the initial statement. I am going to bifurcate this and speak first to the initial statement and then later I will speak to the subsequent statements that were taken as result of police custody.

I might add that Dr. Metzner -- the way this -- after Mr. Connelly was arrested and charged with murder, the Court ordered Mr. Connelly to be committed to the Colorado State Mental Hospital for an examination as to his competency, both as to proceed further and as to his competency at the time he made the statements. This is in the order of the court and as contained in the pleadings.

He was examined by Dr. Jeffrey Metzner of the Colorado State Mental Hospital. Dr. Metzner found that Mr. Connelly was incompetent to proceed, and Mr. Connelly was then held in the Colorado State Mental Hospital for some five or six months until he was examined again by Dr. Metzner and found competent to proceed.

At the time of the initial examination Dr. Metzner, with respect to the request of the court that he examine Mr. Connelly as to his competence at the time of the making of the confession, stated in his report, and this is on Page 17 of the pleadings, the last page of his report, "Based on my examination of Mr. Connelly, it is my opinion that he was experiencing psychotic symptoms during the time immediately preceding and following his alleged confession to the police."

Now, we are initially contesting the admittedly volunteered statement to Officer Anderson on the grounds of due process voluntariness.

QUESTION: And what -- that violates in your view the prohibition in the Fourteenth Amendment that no state shall deprive any person of liberty without due process of law?

MR. VAN CLEAVE: Yes, Your Honor.

QUESTION: And how did the state deprive this person of liberty without due process of law, by admitting that first statement?

MR. VAN CLEAVE: Yes, Your Honor, that the --

QUESTION: How? I mean, by admitting it in the trial, and what was the fatal flaw in that first statement that resulted in the denial of due process?

MR. VAN CLEAVE: The flaw was that that statement under principles of this Court which were developed over the period of years in the area of involuntary -- due process involuntariness of confessions, that statement to Officer Anderson, we contend, was an involuntary confession because of Mr. Connelly's deficient mental condition.

QUESTION: And which of those cases involved no state or police causal connection that you are relying on?

MR. VAN CLEAVE: None of those cases, Your Honor, involve absolutely no state action. Some of the cases that we rely on primarily are Townsend versus Saln and Blackburn versus Alabama, in which the Court stated -- in Townsend the Court indicated that absent, even absent improper police practices, a defendant's mental condition can still be sufficient so as to render a confession he gave involuntary, and its admission and use at trial is the due process -- or the due process violation, Your Honor.

QUESTION: Mr. Van Cleave, suppose it wasn't God who had told Mr. Connelly but rather it was his brother-in-law who said, Frank, unless you go back to Denver and confess, I am going to beat the devil out of you. And in terror of his brother-in-law, he comes up to a policeman. Would that fall under the same rule that you are urging on us here?

MR. VAN CLEAVE: If you have a factual finding by the trial court of actual coercion. There are a number of state law cases that --

QUESTION: What if his wife said to him, Frank, I can't live with you knowing that you haven't paid your debt to society, unless you go back to Denver and confess I am going to leave you and take the children with me?

MR. VAN CLEAVE: I think, Your Honor, that we are talking about -- here we have substantial --

QUESTION: I just want to know what is the limit? I mean, once you say that you are under coercion to confess -- what about just the normal religious coercion? Suppose I have religious views that think that I should pay my just debt to society? Is that a coercion that would render my -- you see, when you say voluntary --

MR. VAN CLEAVE: Yes, Your Honor.

QUESTION: -- I don't know why in the world anyone would voluntarily confess. There is always some kind of coercion, isn't there?

MR. VAN CLEAVE: Yes, Your Honor.

QUESTION: Why would anyone voluntarily confess?

MR. VAN CLEAVE: I think you have to look --

QUESTION: It is either his conscience, his wife, or his brother-in-law, or God who is coercing him to confess.

MR. VAN CLEAVE: Yes, Your Honor. I understand that there is a problem in the limits that can be drawn, and I a not sure I can --

QUESTION: Well, where do you draw them?

MR. VAN CLEAVE: I am not sure I can satisfactorily draw any limits. I can only say that here where the evidence was so overwhelming that Mr. Connelly's mental capacity and volition was so overwhelmed by his mental illness that here the confession is involuntary. In other situations --

QUESTION: Is there any evidence here that his cognitive capacity was diminished?

MR. VAN CLEAVE: Your honor, the psychiatrist who testified testified and made the statement that his cognitive abilities were not diminished in that he could relate historical facts. However, and this went to a question about the Miranda aspect which -- I will answer your question on that. He said that his cognitive abilities were not diminished, he could understand what he was being advised of, he just couldn't use that information. His volitional capacity was totally nonexistent because of his mental condition. So the psychiatrist did testify that he did have -- a certain amount of cognitive abilities were unaffected by the mental condition.

But, no, I understand that there is a problem in drawing the line, and I would submit that the only thing I can say is that here, where there is overwhelming evidence and uncontradicted medical evidence that Mr. Connelly's mental condition was so psychotic, he was hearing these voices, he had no volitional abilities at all, that in this situation under the principles of the voluntariness cases his rational intellect and free will were so impaired that he could not give a voluntary confession.

QUESTION: Mr. Van Cleave, why isn't due process satisfied in a situation like this? Let's assume you are right, that the state connection here is the use of the statement at trial. Why isn't due process satisfied by saying that he is entitled to challenge the truthfulness, the accuracy of the confession? Why is due process offended by admitting a statement like this?

MR. VAN CLEAVE: I submit due process is offended because cases like Blackburn versus Alabama and --

QUESTION: But let's get away from the cases.

MR. VAN CLEAVE: Oh, all right.

QUESTION: Just give a statement as to why is due process offended by admitting a statement that was not in any way coerced by any state actor, and that everyone apparently concedes is true?

MR. VAN CLEAVE: I am not sure everybody concedes it is true, but I will get to that --

QUESTION: Well, were you denied any opportunity to challenge the truthfulness?

MR. VAN CLEAVE: They didn't -- Your Honor, I don't think that was part of the record. They didn't get that far.

QUESTION: At any rate, presumably if this were reversed you could go back and challenge the truthfulness.

MR. VAN CLEAVE: Yes, Your Honor.

QUESTION: So you would be given an opportunity to challenge the truthfulness. What more does due process require under these circumstances?

MR. VAN CLEAVE: It is our contention, Your Honor, that due process requires that the person's mind not be so diseased so that all of his volitional capacities are gone.

QUESTION: Why?

MR. VAN CLEAVE: Because -- well, think that goes back to some of the values that are served by excluding involuntary confessions. First of all, I think you mentioned reliability. If you have a person running around who is hearing voices who tells him to do this, to do that, I think that person's -- the reliability of that person's statement --

QUESTION: Yes, but I don't think the state challenges here that you should have an opportunity at some point in a trial to challenge the reliability of the confession, to say this is what he said but he was out of his mind, it is false, but that isn't your point here and that wasn't the Supreme Court of Colorado's point.

MR. VAN CLEAVE: That's correct, Your Honor. I can only reiterate that it is our position that somehow certain basic human dignity is offended by the use of a confession made by a person who is so mentally imbalanced and defective.

QUESTION: Are the voices crucial? I mean, suppose he just came in and he said, I am -- my religion compels me, or I am born again, and I am sure that God wants me to confess. I haven't heard voices, but I just -- I just believe it.

MR. VAN CLEAVE: Yes, the voices are crucial in that they comprise a certain psychosis that had been diagnosed.

QUESTION: That's fine. That goes to how sane he is, but it does not go at all to what degree of compulsion he is under. Certainly the person who just in conscience believes that God wants him to confess without hearing God's voice is under as much compulsion. All you are establishing by the voices is that the man is a little bit funny, but that doesn't at all affect the degree of compulsion, so how do you just distinguish the case where the man confesses out of a religious belief that that is the right thing to do?

MR. VAN CLEAVE: I think it is based on the evidence which indicates how strong the voices are and the trial court's determination as to how much it believes that evidence.

QUESTION: Well, Mr. Van Cleave, isn't there another fact here? Didn't the trial judge find he was incompetent to stand trial?

MR. VAN CLEAVE: Yes, Your Honor.

QUESTION: Isn't that a little different from the hypothetical?

MR. VAN CLEAVE: Yes, Your Honor. The incompetence is, there is a statutory, you know, definition of incompetence, but I think that is a very significant factor in this case.

QUESTION: Well, Mr. Van Cleave, what about someone who gets more talkative after consuming alcohol and happens to be stopped on a traffic offense by the policeman and confesses to another crime in the process? Now, under your theory I guess that also enters into the balance as to whether that can come in.

MR. VAN CLEAVE: I would draw a distinction between a status --

QUESTION: Or someone who is on drugs.

MR. VAN CLEAVE: Pardon?

QUESTION: Or someone who is on drugs.

MR. VAN CLEAVE: I would draw a distinction between a illness and a person who has voluntarily ingested alcohol or drugs for purposes of this case.

QUESTION: What about a person who voluntarily went to confession and was told, was told that he ought to confess?

MR. VAN CLEAVE: Again, I think that it is really the subjective impression in his own mind as to how such compulsion that causes.

QUESTION: Don't you agree that we really start down a very, very difficult row when we try to inquire into the wellsprings of human action as to what was coerced and what was voluntary?

MR. VAN CLEAVE: I do agree with that, Your Honor. It is not easy. I don't agree that --

QUESTION: Don't forget that you have a statement uncontradicted by a reliable authority, a psychiatrist, who said that this man was nuts --

MR. VAN CLEAVES: Yes.

QUESTION: -- when he made that statement about God. Don't put that with a person who is perfectly sane and is told by the minister. That is entirely different. This man was insane.

MR. VAN CLEAVE: I agree with that, Your Honor.

QUESTION: Well, I mean --

MR. VAN CLEAVE: There can be a distinction there.

QUESTION: How could you forget it?

QUESTION: You don't agree he was insane, do you?

MR. VAN CLEAVE: There was not a medical finding of insanity in this case. It just -- he was --

QUESTION: The medical findings were to the contrary, weren't they?

QUESTION: No, schizophrenia --

MR. VAN CLEAVE: There -- he was --

QUESTION: Well, it was found he could stand trial.

MR. VAN CLEAVE: He was ultimately found restored to competency. I am not sure that there was a finding one way or the other on insanity. The order of the court was merely to find competency or incompetency.

QUESTION: He was committed for six months.

MR. VAN CLEAVE: Around that -- yes, give or take a little bit, but he was -- he was in the state mental hospital for six months being restored to competency.

QUESTION: So definitely there was something wrong with his mentality.

MR. VAN CLEAVE: That is correct, Your Honor.

QUESTION: Mr. Van Cleave, what is the status of the proceeding now? What is the -- is this man on the loose?

MR. VAN CLEAVE: No, Your Honor.

(General laughter.)

MR. VAN CLEAVE: He is not in chambers, Your Honor.

QUESTION: I don't mean here, but is he in a mental hospital now?

MR. VAN CLEAVE: He is in the Denver County Jail at this time, being held there pending the outcome of this Court's --

QUESTION: There hasn't even been a preliminary hearing in the case, has there?

MR. VAN CLEAVE: Well, that was part of the procedural aspect of the first part of the Colorado Supreme Court's opinion.

QUESTION: I understand that, but there has not yet been a preliminary hearing?

MR. VAN CLEAVE: This was kind of a combined preliminary hearing-suppression hearing --

QUESTION: I am just asking you a yes or no question.

MR. VAN CLEAVE: -- and -- pardon?

QUESTION: I am just asking a yes -- has there yet been a probable cause hearing?

MR. VAN CLEAVE: No.

QUESTION: Can I pursue your answer to -- I gather in response to the Court's questioning you are now saying that the difference here is that it was a psychiatrist who had told this man -- who had certified that this man was not right and was -- I guess that means the distinction you are drawing is between erroneous compulsion, that is, a person who believes he is under compulsion when he really isn't, that makes the confession bad, but if he really was under compulsion it is okay.

And let's take a perfectly sane man whose brother-in-law says he is going to beat the devil out of him unless he confesses, that is okay?

MR. VAN CLEAVE: I think that there are possibly other principles that might cause that to be --

QUESTION: Well, I don't know that there is another principle. I don't see how the insanity has anything to do with it. What is it that makes the compulsion greater or lesser and therefore more distorting of the legal process? Is it the fact that the fellow was mistaken about the compulsion. Is that the crucial factor? There really wasn't a voice of God, and therefore that compulsion we won't allow but we will allow the compulsion of his brother-in-law or of his wife leaving or of anything else you want to name.

MR. VAN CLEAVE: I can see the distinction you are drawing, and --

QUESTION: Yes, I am suggesting I still don't see a line. I don't see where it ends between the psychotic individual --

MR. VAN CLEAVE: I would say that --

QUESTION: -- all the way down to the drunk individual.

MR. VAN CLEAVE: I would say that in this case with all the evidence of the psychosis that there is clear evidence that the person is under compulsion. If a person is sane, there may be evidence, and again the trier of fact can weigh into that consideration that.

I would like to now turn to the Miranda aspect. As I have indicated, that after the initial statement Mr. Connelly was taken into custody and asked questions and he gave responses in response to that. Those questions were ordered suppressed by the trial court on roughly the same psychiatric testimony as the other statement.

The Colorado Supreme Court affirmed and based its decision primarily on Miranda.

QUESTION: You say the statements were admitted because it didn't satisfy the voluntary part of the Miranda rule, the Miranda waiver rule.

MR. VAN CLEAVE: I am not sure that that -- oh, in the trial court --

QUESTION: You say roughly on the same basis that --

MR. VAN CLEAVE: Yes, Your Honor.

QUESTION: -- that it had excluded the prior --

MR. VAN CLEAVE: The trial court was not explicit in delineating those two components of the waiver requirement. The trial court's findings were primarily along volitional lines and that he was unable to make a free choice, and that he basically didn't know what he was doing. So --

QUESTION: And what provision of the Constitution do you think the admission of this testimony would have violated?

MR. VAN CLEAVE: This again is -- well, not again. This Miranda is a Fifth Amendment.

QUESTION: Which says that no person shall be compelled against his will to give testimony in a criminal proceeding.

MR. VAN CLEAVE: That's correct. And the Miranda case basically found that anyone who was in police custody and subject to interrogation is subject to an inherent compulsion, and that inherent compulsion is the Fifth Amendment link to statements that were made here. As Justice White has indicated, there are two components to the waiver requirement. There is the voluntary aspect and the knowing and intelligent aspect.

We agree with the people that there is some linkage between the voluntary component of waiver and the due process voluntariness standards to the extent that the person's mental condition is considered under the totality of the circumstances as one of the factors to be considered. In this case, as we have discussed, Mr. Connelly's volitional capacity was diminished, and therefore we would submit that the voluntary component was not compiled with.

In addition to that, we submit that the clear finding that Mr. Connelly was incompetent at the time that he gave his statement or at the very least at a time shortly thereafter and implicitly at the time he made the statement affects the knowing and intelligent component as well.

I would cite this Court's decisions in Pate versus Robinson and Westbrook versus Arizona for the proposition that a person who is incompetent does not have the capacity to make a knowing and intelligent waiver.

QUESTION: Did Pate against Robinson involve the Miranda warnings?

MR. VAN CLEAVE. No, Your Honor, I believe that was a waiver of a person's ability to stand trial or capacity to stand trial.

QUESTION: And you say the same standard for ability to stand trial or capacity to stand trial applies to the waiver of Miranda warnings?

MR. VAN CLEAVE: Yes, Your Honor, I think the Miranda waiver requirements are based on the concept announced in Johnson versus Zerbst that the waiver of a fundamental constitutional right requires a knowing and intelligent waiver.

QUESTION: Well, how about the somewhat different standard applied in Schneckloth against Bustamante for waivers of Fourth Amendment rights? Why shouldn't that apply here?

MR. VAN CLEAVE: Well, Schneckloth versus Bustamante held that the knowing and intelligent component of the waiver requirement was inapplicable, namely, only that the -- in fact, it utilized the old due process voluntary test for the validity of waiver of a consent to search. So I don't think that Schneckloth really -- other than dividing those components, I don't think it really addressed the knowing and intelligent component of the waiver requirement.

QUESTION: Except it said it wasn't required in the case of a consent to search.

MR. VAN CLEAVE: That's correct.

QUESTION: Why shouldn't that -- why shouldn't that standard be carried over to Miranda waivers?

MR. VAN CLEAVE: You mean, in other words, just a straight voluntariness standard?

QUESTION: Yes.

MR. VAN CLEAVE: I think because Miranda said that the waiver -- that its waiver requirement required that the person knowingly and intelligently waived his rights to counsel and silence.

QUESTION: Is it open to a defendant who has received Miranda warnings, you know, chapter and verse, to say, you know, I had an IQ of 95, and I was very badly disturbed when I was in the police station, I just didn't understand them?

MR. VAN CLEAVE: I think that under the totality of the circumstances approach to a determination of the validity of a waiver, yes.

QUESTION: So then the giving of Miranda warnings can never conclude a case. It is always a question of whether the defendant understood them.

MR. VAN CLEAVE: I believe so. You have to have both. You have to have both the giving of the advisement and a valid waiver of the advisement in order to render any subsequent statements admissible.

QUESTION: Did the trial court here rest its decision on the knowing element as opposed to the voluntary element?

MR. VAN CLEAVE: The trial court really didn't make that --

QUESTION: Did it make -- I mean, you have asserted that the insanity could have affected the knowing element, perhaps.

MR. VAN CLEAVE: Yes. The trial court did not really make that distinction, Your Honor. The trial court bundled it all up.

QUESTION: Well, its discussion went to the voluntary element entirely, didn't it?

MR. VAN CLEAVE: A lot of it did.

QUESTION: Did any of it not?

MR. VAN CLEAVE: I can't recall the exact words the trial court used. What the trial court -- the trial court adopted Dr. Meztner's statement that Mr. Connelly just was simply unable to use the information that he had as far as his ability to make a choice between waiving or not waiving.

QUESTION: That doesn't sound like knowledge. It sounds like volition.

MR. VAN CLEAVE: Yes, I think -- I think the trial court's finding was more on the volition side.

QUESTION: Only on the volition side.

MR. VAN CLEAVE: But I think the Colorado Supreme Court, I think, examined both sides.

If there are no further questions, I would conclude my argument. Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Van Cleave.

Do you have anything more, Mr. Coats? You have one minute remaining.

ORAL ARGUMENT OF NATHAN B. COATS, ESQ., ON BEHALF OF THE PETITIONER - REBUTTAL

MR. COATS: One quick point, Your Honor.

With regard to competence, we -- because there is some kind of state action required under the old due process voluntariness standard, I don't think the question of competence has any bearing at all under that standard.

With regard to the waiver of Miranda rights, though, the question obviously -- competence, a finding of incompetence may very well indicate that the defendant could not -- knowingly could not satisfy the cognitional dimension, but it does not necessarily do so, and in fact this case is a good example of a case in which for different policy reasons a defendant might be found incompetent to stand trial, in this case the doctor saying that he could -- was passing in and out of psychoses and he wasn't sure that he could consistently assist his counsel over a continuous period of time, and yet at the same time the psychiatrist was able to find that his cognitional abilities were not at all impaired with regard to this particular waiver.

So finding that someone is incompetent to stand trial seems to me to be a different standard and does not necessarily indicate that he could not make a waiver of any constitutional right.

I have nothing else, Your Honor, unless there are any questions.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Coats.

The case is submitted.

(Whereupon, at 11:51 o'clock a.m., the case in the above-entitled matter was submitted.)