Happy Constitution Day! As it’s also Friday today, this Constitution Day the Center for Judicial Engagement brings you another reminder that we don’t only have the Constitution signed in Philadelphia 234 years ago, but the 50 others in the states. In past weekly posts on state constitutional law I’ve frequently discussed how state courts can interpret their own constitutions to provide a higher level of protection against the government than the federal constitution, thus protecting liberties at an additional level. For example, I’ve written about search and seizure cases where the state constitution is written virtually identically to the Fourth Amendment but the state courts have found searches unreasonable where the federal courts would have given the government a green light. And the same is true of many other liberties we litigate at IJ, including protections against eminent domain and economic liberties.
Just in the last week two New England states gave another example of heightened state constitutional protection, this time in the realm of criminal procedure: the right against involuntary confessions. Law enforcement, of course, has massively more resources at its disposal when investigating a crime than someone it suspects of committing the crime. The problem of false confessions is a well-documented, common, and tragic result. Thus, it’s important that when a suspect confesses we’re sure it’s done out of free will and not some version of the infamous Star Chamber.
The high courts of Maine and New Hampshire each ruled that their constitutions demand that the voluntariness of a confession be proved beyond a reasonable doubt, the same standard as a criminal conviction. This wasn’t a new standard for either; they were both just applying past precedent. But that standard is higher than that required by the U.S. Supreme Court under the Fourteenth Amendment, where the prosecution only must show a preponderance of the evidence to demonstrate that a confession is voluntary.
The Maine court, in a murder case State v. Akers, stated this was required by its due process clause, which reads very similarly to the due process clause in the Fourteenth Amendment. Maine’s reasonable doubt standard has been the law since 1972 where the court adopted the reasoning of a dissent by Justice Brennan in Lego v. Twomey, and where the majority applied the preponderance of the evidence standard.
In New Hampshire, in a sexual assault case State v. Hinkley, the court explained its standard is based on Article 15 of the state constitution which both guarantees the right against being compelled to testify against oneself and the right against being “arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land,” which is a fancy (and beautiful!) way of saying due process. There the court has applied the reasonable doubt standard since 1977, where it also rejected the holding from Lego v. Twomey in stirring words on the uniqueness of confessions: “A confession is a special type of evidence. Its acceptance basically amounts to conviction. Confessions are usually obtained in the psychological atmosphere of police custody and in the greatest secrecy in which the cards can be stacked against the accused. He has no means of combating the evidence produced by the police save by his own testimony. The stakes are too high and the risk of error too great to permit a determination of admissibility to be decided by a balance of probabilities.”
This double header from New England is a good reminder on Constitution Day 2021 that whatever constitution we’re talking about, our constitutional rights are only as strong as the government that enforces them. Usually in our system that means the courts, and a judiciary that does not engage with the Constitution and the standards necessary to make its promises a reality fails to keep the Constitution strong. That’s true whether you’re worried about the right to keep your home, to earn a living, to speak your mind, or to be free of a forced confession of a crime you didn’t commit.
Anthony Sanders is the director of IJ’s Center for Judicial Engagement.