A voluntary confession occurs when a suspect makes a non-coerced admission. In other words, the statement is not a product of a coercive police environment. Indeed, criminal confessions are presumptively involuntary. A criminal defendant has the burden of raising a voluntariness issue to the Court.  This is the “burden of persuasion”. The State has the burden to prove by the confession is voluntary and not resulting from coercive police activity. The burden of proof is a preponderance of the evidence standard.

Voluntary Confession distinguished from Miranda

Miranda is an issue where the State and its agents must advise a person of a Constitutional right. Specifically, a person’s Fifth Amendment right against self-incrimination.  The State’s failure to do so renders the statements inadmissible at a trial.  On the contrary, a voluntary confession is not dependent on reciting a list of rights. Rather, a voluntariness issue requires detailed analyses of the “totality of the circumstances” to determine “coercive police activity”.

Factors used to Determine a Voluntary Confession

Arizona courts have two authorities when analyzing a voluntariness issue.  First, A.R.S. §13-3988 details factors for the trial court to consider.  Second, a trial court must analyze case law which requires coercive police conduct as a predicate for any voluntariness issue. 


Under A.R.S. § 13-3988(A), “[i]n any criminal prosecution brought by the state, a confession shall be admissible in evidence if it is voluntarily given.”  Specifically, A.R.S. § 13-3988(B)(1)-(5) codifies circumstances and factors a trial court must consider in determining whether a confession is voluntary. Indeed, a trial judge must determine voluntariness outside the presence of a jury in a pre-trial hearing. A finding of involuntariness will preclude the confession from trial. On the contrary, a voluntary finding allows the confession into evidence.

However, the analysis does not stop there. In fact, the trial jury independently determines how much weight to give the statement, including rejecting the statement completely. These codified factors guide a trial court in the procedure of addressing a voluntariness issue.  However, they are in read in conjunction with case law analysis.


Confessions are prima facie involuntary.  Indeed, the State has the burden to show a confession is voluntary.  Also, that it is not the result of an overly coercive environment.  Specifically, the U.S. Supreme Court has held “coercive police activity is a necessary predicate” to finding a confession involuntary. In the analysis, a trial court looks to the totality of the circumstances to decide “whether a person’s will has been overborne.”   Arizona case law provides guidance in considering the “totality of the circumstances”.  Indeed, one of the following factors renders a confession involuntary:

  1. Impermissible conduct by the police
  1. Coercive pressures not dispelled
  1. Confession derived directly from a prior involuntary statement

Beyond these three factors, Arizona courts provide case law addressing different scenarios invoking the voluntariness analysis. This generally involves law enforcement trickery, promises and threats.  


Many U.S. citizens are not aware that law enforcement may straight up lie during any investigation.  This is fair game as an investigative tactic and does not render a confession involuntary.  Indeed, a statement induced by fraud or trickery is not involuntary. Unless there is evidence that the [person’s] will was overborne or that the confession was false or unreliable.

Deception is a valuable tool for law enforcement.  Arizona and United States Appellate Courts have held these situations to be acceptable constitutional investigative tactics.  However, law enforcement may cross the line in its deception, rendering a confession involuntary.


A confession is not voluntary if obtained by direct or implied promises, no matter how slight.  However, under some circumstances, direct promises to a person that officers will tell the prosecutor a person cooperated are permissible.  However, law enforcement may not hold themselves out as being capable of influencing a result because of the cooperation. Also, promises officers would see that a person would go to prison if no cooperation are not permissible. Indeed, police have no authority in prosecuting a case. Although they are investigators and prosecutors may seek input from a detective.


Relevant to coercive police activity is an evaluation concerning the interrogated person’s age, education and intelligence.  This accounts for a suspect’s level of savviness and how far courts allow officers to engage in gamesmanship. For example, a 17-year old with no criminal record may crack under minor coercion. However, a 45-year old with five prior felony convictions and multiple prison tours could likely take much more coercion. Each case is different and requires a fact-intensive analysis.


Voluntariness issues require analyses of the length of the detention, questioning as well as use of physical force.  These situations create circumstances leading to false confessions. Indeed, this could lead to complex issues and often require the use of expert witnesses. These situations arise during lengthy interrogations or if law enforcement keeps someone in seclusion for hours.

Today, law enforcement should be fully memorializing contact with the public or investigative leads.  All police initiated contact should be memorialized on a recording device (i.e., AXON camera, cell phone, etc.). This would eliminate most voluntariness issues. Indeed, there is no reason this situation should exist in today’s technological environment.   Rather, police recording citizen contact should be normalized. Unfortunately, it is not.   

Call Huss Law

Voluntariness issues are complex and require a fact-intensive analysis.  These issues should be vetted and investigated by an experienced attorney who has handled them on multiple occasions.  Arizona Attorney Jeremy L. Huss of Huss Law has 20 years of experience in investigating and analyzing voluntariness issues.  Anybody under investigation or facing charges should contact Mr. Huss for a Free Consultation.

This is an interrogation room with a brown table and chairs.  Police may obtain a statement that is not voluntary in a room like this.

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