FSM 2 Intrm. 189-200

Courts may look to the Journals of the Micronesian Constitutional Convention for assistance in determining the meaning of constitutional language that does not provide an unmistakable answer. The Journals provide no conclusion as to whether promises of leniency by the police should be regarded as having compelled a defendant to give statements and other evidence but shows that the article IV, section 7 protection against self-incrimination was based upon the fifth amendment to the United States Constitution. Therefore courts within the Federated States of Micronesia may look to United States decisions to assist in determining the meaning of article IV, section 7. FSM v. Jonathan, 2 FSM Intrm. 189, 193-94 (Kos. 1986).

A confession which is the product of an essentially free and unconstrained choice by its maker may be used as evidence to establish the guilt of the defendant in court. FSM v. Jonathan, 2 FSM Intrm. 189, 194 (Kos. 1986).

Although questioning of witnesses and suspects is a necessary tool for the effective enforcement of criminal laws, courts have recognized that there is an unbroken line from physical brutality to more subtle police use of deception, intimidation and manipulation, and that vigilance is required. FSM v. Jonathan, 2 FSM Intrm. 189, 195 (Kos. 1986.).

In the area of police questioning and confessions, the protection against self-incrimination is the principal protection, designed to restrict or prevent use of devices to subvert the will of an accused. FSM v. Jonathan, 2 FSM Intrm. 189, 195 (Kos. 1986)

Overall circumstances and not merely the existence or nonexistence of a promise determines whether a confession will be accepted as voluntary or rendered inadmissible as involuntary. FSM v. Jonathan, 2 FSM Intrm. 189, 196 (Kos. 1986).

Voluntariness of a confession may not be resolved by reference to any single infallible touchstone, such as whether a promise was made, but instead must be determined by reference to the totality of surrounding circumstances. FSM v. Jonathan, 2 FSM Intrm. 189, 197 (Kos. 1986).

Where a police officer promised to reduce charges if the defendant cooperated but there was no other showing of police intimidation or manipulation and the defendant had recognized that his guilt was apparent, the confession was not induced by the promises but instead was a voluntary response to the futility of carrying the deceit further. FSM v. Jonathan, 2 FSM Intrm. 189, 198 (Kos. 1986).

Where defendants accompanied police officers, then defendants entered their homes and obtained the stolen goods and turned them over to the police, the question of whether there has been an unreasonable seizure in violation of Article IV, § 5 of the Constitution turns on whether the defendants' actions were voluntary. FSM v. Jonathan, 2 FSM Intrm.189, 198-99 (Kos. 1986).

Police may question persons who, while they are in police custody, fall under suspicion for another crime, without regard to the fact that other persons in a similar category would be released without questioning. FSM v. Jonathan, 2 FSM Intrm. 189, 199 (Kos. 1986).

The principal issue presented here is whether promises of leniency made by police officers in the course of questioning necessarily taint and render inadmissible confessions subsequently made by the accused.

Defendants Aliknoa Jonathan and Kilafwa Albert signed statements confessing that they had carried out a burglary and returned stolen goods to the police. In the course of the questioning that led to their confessions they were promised more lenient treatment if they cooperated. In this criminal prosecution for the burglary, they contend that their confessions and the return of the items were induced by the promises and were not the products of their own free will. They seek suppression of the confessions and stolen items as having been obtained in violation of their constitutional protection against self-incrimination. FSM Const. art. IV, § 7.

Although troubled by the promises, I have concluded that they did not induce the incriminating statements and actions of the defendants here. Instead, I find that the defendants confessed because each was aware, at the time he confessed, that his guilt was obvious and that further resistance would be futile. Accordingly, I find no violation of the rights claimed by the defendants. The motion to suppress is therefore denied.

During the morning of Saturday, August 3, 1985, the Kosrae State Police received a report that there had been a burglary the night before at the Black Micro construction site near Tafunsak Village on Kosrae. They were told that various items, including five radios, a camera, binoculars, some paychecks and a pair of boots had been taken.

Police Chief Horton Steel and Officer Paliksru Albert went to the site to investigate. During their investigation they were told that Kilafwa Albert and Aliknoa Jonathan had been seen in the Black Micro camp during the night. While they were in the Black Micro area, at about 1:00 p.m., Officers Steel

and Albert encountered Kilafwa Albert and Aliknoa Jonathan walking on the road, intoxicated. Although it is not clear whether the officers were aware of this fact at the time, Jonathan was wearing shoes of the kind which had been stolen from Black Micro. The officers arrested Jonathan and Albert on charges of drunken and disorderly conduct and confined them in the Kosrae jail.

The next morning, after the defendants had sobered up, the Kosrae police questioned them. There is much conflicting and confused testimony as to justwhat was said, and in what order, but I make the following findings based upon my assessment that the testimony of the officers was generally more credible than that of the defendants.

First, Officers Paliksru Albert and Swaitcher Sam spoke to Kilafwa Albert. Officer Sam began by reading to Albert, in Kosraean, the rights specified in 12 F.S.M.C. 218. Questioning concerning the drunken and disorderly charge, and the burglary, then began. Albert admitted having been in the Black Micro camp on Friday night. He said he had gone there to visit a friend. However, he denied any knowledge of the burglary. About ten minutes after the questioning began, Kilafwa Albert refused to talk further. The questioning was immediately terminated and he was returned to his cell.

Aliknoa Jonathan then was questioned, after being advised of his rights under 12 F.S.M.C. 218. At first, he denied having been in the Black Micro camp on Friday night, but he then conceded he had been.

Before questioning Jonathan, the officers had noted that the initials of the owner were on the shoes Jonathan was wearing when he was apprehended. When asked about the shoes, Jonathan originally insisted that the shoes were given to him by his father. Confronted with the initials, Jonathan began laughing, admitting that the shoes belonged to somebody at the Black Micro camp.

Jonathan soon signed a written statement which this motion seeks to suppress. At some point before Jonathan signed his statement, Chief Steel told Jonathan that if he cooperated, Chief Steel would bring this to the attention of the Court and if all stolen items were returned, the charges against him would be reduced.

I do not accept as true the representation by defendants that, before they gave their statements, Chief Steel threatened to call Pohnpei and seek permission to have them held longer in jail if they refused to admit their involvement.2

After signing his statement, Jonathan then told Kilafwa Albert what he had done and what Chief Steel had promised. The defendants were then taken to the home of Aliknoa Jonathan. Jonathan was asked to go, inside and bring out any of the stolen items there. He entered alone and returned with some of the stolen items. They then went to Kilafwa Albert's house. The same procedure was followed, with Albert bringing additional items from his house. The defendants ultimately, however, did not return all of the stolen goods.

Defendants seek suppression of their statements and the stolen items returned by them from evidence in this case. They place principal reliance upon their claim that their constitutional protection against being "compelled to give evidence that may be used against him in a criminal case," has been violated. FSM Const. art. IV, § 7.

The constitutional language upon which the defendants rely does not provide an unmistakable answer as to whether promises of leniency by the police should be regarded as having "compelled" the defendants to give the statements and other evidence which they now contend may not be used against them in this criminal case. We may therefore look to other sources for assistance in determining the meaning of those constitutional words.

The first resource for review in this search for constitutional meaning is the Journal of the Micronesian Constitutional Convention. The protection against self-incrimination was first proposed by the Convention's committee on Civil Rights in its proposal for a declaration of rights. SCREP No. 23, II J. of Micro. Con. Con. 793, 797-98. I find neither in the committee's report nor elsewhere in the Journal any discussion directly pertinent to the specific issues in this case.

However, we have previously recognized that in developing this Constitution's declaration of rights, the Committee on Civil Rights, and subsequently the convention, as a body, drew almost exclusively upon constitutional principles under United States law. Alaphonso v. FSM, 1 FSM

That is also true for the protection against self-incrimination. The Committee on Civil Liberties cited American authorities exclusively in explaining the meaning of the clause. II J. of Micro. Con. Con. 797-98. Moreover, the operative words here, "a person may not be compelled to give evidence that may be used against him in a criminal case," are patterned upon similar language in the United States Constitution: "No person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V.

For these reasons, I look to American interpretations of the protection against self-incrimination, for guidance in determining the meaning of the protection against self incrimination set forth in Article IV, Section 7 of this Constitution.

Courts in the United States have not interpreted the privilege against self-incrimination as preventing police from questioning suspects nor as barring admission into evidence of all statements made by defendants to police officers. Instead, those courts have recognized that questioning of witnesses and suspects is a necessary tool for the effective enforcement of criminal laws. "Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished." Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d 854, 861 (1973).

It is apparent too that defendants and guilty persons may sometimes wish to make statements. A forthright confession of guilt sometimes may be in the interest of the accused as well as the public at large. So long as a confession is the "product of an essentially free and unconstrained choice by its maker," it may be used as evidence to establish the guilt of the defendant in court. Schneckloth, 412 U.S. at 225, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862.

At the other pole is a cluster of convictions each expressive, in a different manifestation, of the basic notion that the terrible engine of the criminal law is not to be used to overreach individuals who stand helpless against it. Among these are the notions that men are not to be imprisoned at the unfettered will of their prosecutors, nor subjected to physical brutality by officials charged with the investigation of crime. Cardinal among them, also, is the conviction, basic to our legal order, that men are not to be exploited for the information necessary to condemn them before the law, that, in Hawkins' words, a prisoner is not "to be made the deluded instrument of his own conviction." 2 Hawkins,

Pleas of the Crown (8th ed. 1824), 595. This principle, branded into the consciousness of our civilization by the memory of the secret inquisitions, sometimes practiced with torture, which were borrowed briefly from the continent during the era of the Star Chamber, was well known to those who established the American governments. Its essence is the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.

It is undoubtedly these same concerns which caused the framers to insert in this Constitution protection against compelled self-incrimination. Most persons can readily see the desirability of prohibiting officials from using beatings or torture to obtain confessions. It is not easy to draw a bright line around the scope of the privilege however, for coercion is often a matter of nuance and degree. If beating is prohibited, what about the threat of a beating? Must the threat be openly made to be unconstitutional, or is an implied threat enough? Then too, some persons may be more fearful of isolation and confinement than of physical abuse. The courts have recognized that there is an unbroken line from physical brutality to more subtle police use of deception, intimidation and manipulation, and that vigilance is required.

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

In the area of police questioning and confessions, the protection against self-incrimination is the principal protector. The provision is designed to restrict or prevent use of devices to subvert the will. "[N]either the body nor mind of an accused may be twisted until he breaks." Culombe v. Connecticut, 367 U.S. 568, 584, 81 S. Ct. 1860, 1869, 6 L. Ed. 2d 1037, 1047 (1961).

Jonathan that: (1) if Jonathan would cooperate, Chief steel would advise the court of the fact; and (2) if the defendants would return all the stolen items, the charges against them would be reduced.

They insist that any promise which induces a statement by an accused renders the statement inadmissible in court. They have directed the Court's attention to numerous decisions which make statements to that effect. United States v. Powe, 591 F.2d 833, 836 (D.C. Cir. 1978) ("it is firmly established that self-incriminating statements induced by promises or offers of leniency shall be regarded as involuntary and shall not be admitted into evidence for any purpose."); Bram v. United States, 168 U.S. 532, 542-43, 18 S. Ct. 183, 187, 42 L. Ed. 568, 573 (1897) ("[A] confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence."); McLallen v. Wyrick, 498 F. Supp. 137, 139 (W.D. Mo. 1980) ("A confession can never be received in evidence where the prisoner has been influenced by any threat or promise.").

A closer look at the cases however, reveals that there is no such talismanic answer to the question of voluntariness. Even the cases cited above, which seem from the quoted language to suggest that any promise of leniency whatever will taint the questioning process, reveal that overall circumstances, not merely existence or nonexistence of a promise, determine whether a confession will be accepted as voluntary or rendered inadmissible as involuntary.

For example, in the landmark Bram case, the United States Supreme Court decision recognized the importance of considering the place where the statements were made, and the conduct of the detective towards the accused." 168 U.S. at 563, 18 S. Ct. at 195, 42 L. Ed. at 580. The United States Supreme Court thought it important that:

Bram had been brought from confinement to the office of the detective, and there, when alone with him, in a foreign land, while he was in the act of being stripped, or had been stripped, of his clothing, was interrogated by the officer, who was thus, while putting the questions and receiving answers thereto, exercising complete authority and control over the person he was interrogating.

Id. The court specifically noted, 168 U.S. at 563-64, 18 S. Ct. at 195, 42 L. Ed. at 580, that none of the above facts would by themselves be determinative of whether such a confession would be admissible.

Although these facts may not, when isolated each from the other, be sufficient to warrant the inference that an influence compelling a statement had been exerted; yet, when taken as a whole, in conjunction with the nature of the communication made, they give room to the strongest inference that the statements of Bram were not made by one who, in law, could be considered a free agent.

In United States v. Powe, the court of appeals did not hold that promises there necessarily rendered the confession involuntary. The court simply found that "in the circumstances of this case, a substantial question of voluntariness was raised and the trial judge should have conducted further inquiry on that issue." 591 F.2d at 844. The case was remanded to the trial level for further proceedings.

In McLallen v. Wyrick, the defendant had repeatedly refused to sign the statement proffered to him by the prosecutor. Only after the prosecutor had repeatedly said to him that "this is the best thing for you to do" did he sign the statement. It was therefore clear that these statements by the prosecutor, and nothing else, had prompted the defendant to sign the statement.

Even so, the McLallen court thought important the defendant's testimony "that if the sheriff had made the same comments he would not have believed them, but when the prosecuting attorney made the statements he knew that the prosecutor had the power to reduce or dismiss charges or make it easy or hard on him, and that he gave those comments considerable weight." 498 F. Supp. at 139. Thus, the implied promises by themselves were not determinative. The identity of the promisor, and the causal connection between the promises and the signing of the statement were crucial.

What is "voluntary," then, may not be resolved by reference to any single infallible touchstone but instead must be determined by reference to the totality of surrounding circumstances. Schneckloth, 412 U.S. at 227, 93 S. Ct. at 2048, 36 L. Ed. 2d at 863. In determining whether a confession was voluntarily made, the courts have considered numerous factors about the accused and the interrogation. These include the age, education, intelligence and general sophistication of the accused, whether he had been advised of his constitutional rights, the length of detention, whether the questioning was repeated or prolonged, whether the accused persons had been deprived of food or sleep and other facts indicating the atmosphere of the interrogation. Courts review the factual circumstances surrounding a confession and attempt to assess the psychological impact on the accused of those circumstances. Id. at 226-27, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862.

Thus, in United States v. Robinson, 698 F.2d 448 (D.C. Cir. 1983), the defendant had been promised by the government that it would inform the prosecutor of his cooperation and would not arrest and charge him that day if he would confess. The trial court considered the maturity, education and previous criminal experience of the defendant and held that these promises were not sufficient to "overbear his will." Id. at 455. Despite the promises, the confession was upheld as voluntary.

I conclude that the court in Miller v. Fenton, 741 F.2d 1456, 1467 (3d Cir. 1984) has stated the pertinent constitutional law of the United States accurately: "The use of promises by an interrogating officer can be sufficient to invalidate a confession.... In general, however, promises by interrogators will not invalidate a confession unless they are sufficient to `overbear the defendant's will'--the general standard of voluntariness."

Nothing has been brought to my attention suggesting that this standard would be unsuitable for use within the Federated States of Micronesia. therefore adopt the standard for application in this case.

No evidence concerning the background of these defendants has been presented. The nature of the interrogation however does not generally reflect an effort by the police to overbear the free will of the defendants.

Intoxicated at the time of original arrest, the, defendants were allowed until the next day to sober up. In the morning the questioning of Kilafwa Albert began after the extensive rights specified in 12 F.S.M.C. 218 were read to him. Albert agrees that he spoke voluntarily to the police officers for some ten minutes. When the questioning focused on the burglary itself, Albert asserted his right to stop the questioning. His wishes were honored by the police and he was returned to his cell. There was no indication that any promises or threats took place during that questioning.

Similarly, the rights specified in 12 F.S.M.C. 218 were read to Aliknoa Jonathan before his questioning began. His interrogation lasted some 15 to 30 minutes. When Aliknoa Jonathan confessed, he had been in jail for less than 24 hours and had been questioned only a couple of times by no more than three officers. There was no prolonged questioning and no indication that questions were put forward in an intimidating manner.

Most important, the testimony of Officer Sam reveals that what actually induced Jonathan to confess was that he had been caught in a lie about the shoes he had been wearing. He then admitted that those shoes belonged to somebody at the Black Micro camp. This admission was induced by the initials on the shoes, not by any threats or promises made by the police officers.

From the time of that admission, it was surely clear to Jonathan that his guilt was evident to all. It was inevitable that other admissions would follow. I conclude that, for purposes of the legal voluntariness test, Jonathan's subsequent admissions were induced by his own sense of futility in carrying the deceit further, not by anything the officers said. The police merely served as "midwife to a declaration naturally born of remorse, or relief, or desperation, or calculation." Culombe v. Connecticut, 367 U.S. at 576, 81 S. Ct. at 1864, 6 L. Ed. 2d at 1043.

It seems equally plain that the actions of Kilafwa Albert in retrieving the stolen items from his house and in confessing to the crime were induced by his recognition that to do otherwise would be hopeless since Jonathan had already confessed.

The defendants' actions in retrieving the stolen goods from their homes was a form of self-incrimination. The actions of the police in accepting the goods constituted seizure, subject to scrutiny under Article IV, § 5 of the Constitution. Under either view, the dispositive issue is whether the actions of the defendants were voluntary. For the reasons already discussed concerning the statements, I find that these actions of the defendants in obtaining the goods from their homes and turning them over to the police also

Similarly, the record does not indicate that the defendants, before confessing, had been held in excess of 24 hours. Thus I find that they were not being illegally detained and their confessions may not be set aside on that basis.

Defendants also emphasize that normal Kosrae police procedure for persons arrested for drunk and disorderly conduct is to release them the next morning after they have become sober. Defendants contend that it was a variance from police policy for them to be held and questioned after they became sober. The apparent suggestion is that this somehow taints the questioning process and all evidence thereby obtained.

To the contrary, it appears reasonable that the police should question persons who, while they are in police custody, fall under suspicion for another crime. Since Jonathan and Albert were burglary suspects, they were not in the same position as the normal prisoner for drunk and disorderly charges. They have no right to demand the same treatment as persons who are not suspected of crimes.

Before closing, I offer a few observations about the police practices which gave rise to this case. First, this case should serve as fair warning to police officers that the use of direct or implied promises to encourage suspects to provide information is a dangerous practice indeed. At the very least, promises or offers of leniency will bring into question whether a subsequent confession is voluntary, the product of a free and unconstrained will.

Second, there appears a distressing tendency throughout the Federated States of Micronesia for police to focus upon obtaining admissions of guilt, to the exclusion of other forms of investigation. Many times, imaginative and effective investigative work will obviate or reduce the need for questioning of suspects and relying solely upon their confessions. In this particular case, when defendant Albert was originally arrested, he was wearing a pair of shoes which had been stolen the night before from Black Micro. Those shoes had in them the name or initials of the owner. Without knowing all the circumstances, I presume that the police could have verified their suspicions

about the shoes by checking with the owner immediately after Albert was arrested. Had they obtained confirmation from the owner that the shoes had been stolen the night before they surely would have had sufficient basis to obtain a search warrant.

They would then have found several of the stolen items in Jonathan's house. Had those procedures been followed, there could have been no question as to the admissibility of the physical evidence thereby obtained.

In general, there seems to be underestimation of the importance of obtaining and presenting physical evidence as proof of guilt. Rarely is physical evidence of any kind introduced by the government in court cases here. Indeed, there are far more stories of crucial evidence having been lost by police custodians than instances of such evidence actually having been presented in court.

I fear that continuation of this emphasis upon personal interrogation of suspects and deemphasis of other forms of investigation and proof may someday, in a crucial case, produce a tragic result. Desperate efforts by police to obtain a confession, while crucial physical evidence is being overlooked or lost, could produce a false, or inadmissible confession, without any reliable evidence available to prove guilt. Heightened reliance upon careful police investigation, and reduced emphasis upon obtaining confessions, could minimize the possibility of a future injustice occurring.

1. Chief Steel, an expatriate from the United States, resigned and left Kosrae shortly after the events discussed here. He therefore did not testify at this hearing. The witnesses were Officers Sam and Albert, Officer Harry Jackson, who served as Chief Steel's translator, and the two defendants.

2. Albert said Officer Jackson was present when Steel made the threat to him but Jackson denies recollection of such a threat. Jonathan said he was alone with Chief Steel when he made the threats. This seems unlikely since other testimony indicates Steel was using a translator in his dealings with the defendants. None of the three officers who testified was aware of any threat. Moreover, Jonathan contradicted himself as to when the threat was made.