Where the Constitution Falls Short: Confession Admissibility and Police Regulation

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate.

Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by a preponderance of the evidence, and post-conviction challenges to admissibility are subject only to harmless error review. The United States is not the only country that must wrestle with confession admissibility and police misconduct. In 1984, the United Kingdom’s Parliament determined that leaving police practices unregulated was no longer acceptable and passed the Police and Criminal Evidence Act (PACE). PACE and its accompanying Codes of Practice set out regulations for most police conduct.

The regulations established clear procedure for police to follow and the accused to anticipate. This Comment first examines the history of confession admissibility law as created by the Supreme Court of the United States. Next, this Comment considers the British model of confession admissibility. The British couch confession admissibility in broader legislation regulating nearly all police practices in detail.

After consideration of the systems of admissibility in both the United States and Britain, this Comment argues that post-hoc constitutionality review of police interrogations is inadequate to regulate police practices. Finally, this Comment argues that American legislative bodies should generate statutory regulation of police and use the British Police Codes of Practice as a model for American police regulation.