U.S. Supreme Court Colorado v. Connelly, 479
U.S. 157 (1986) Colorado v. Connelly No. 85-660 Argued Oct. 8, 1986 Decided Dec. 10, 1986 479
U.S. 157 CERTIORARI TO THE SUPREME COURT OF
COLORADO Syllabus Respondent approached a Denver police officer and stated that he
had murdered someone and wanted to talk about it. The officer
advised respondent of his Miranda rights, and respondent
said that he understood those rights, but still wanted to talk
about the murder. Shortly thereafter, a detective arrived and again
advised respondent of his rights. After respondent answered that he
had come all the way from Boston to confess to the murder, he was
taken to police headquarters. He then openly detailed his story to
the police and subsequently pointed out the exact location of the
murder. He was held overnight, and the next day he became visibly
disoriented during an interview with the public defender's office
and was sent to a state hospital for evaluation. Interviews with a
psychiatrist revealed that respondent was following the "voice of
God" in confessing to the murder. On the basis of the
psychiatrist's testimony that respondent suffered from a psychosis
that interfered with his ability to make free and rational choices
and, although not preventing him from understanding his rights,
motivated his confession, the trial court suppressed respondent's
initial statements and custodial confession because they were
"involuntary," notwithstanding the fact that the police had done
nothing wrong or coercive in securing the confession. The court
also found that respondent's mental state vitiated his attempted
waiver of the right to counsel and the privilege against
self-incrimination. The Colorado Supreme Court affirmed, holding
that the Federal Constitution requires a court to suppress a
confession when the defendant's mental state, at the time he
confessed, interfered with his "rational intellect" and his "free
will," the very admission of the evidence in a court of law being
sufficient state action to implicate the Due Process Clause of the
Fourteenth Amendment. The court further held that respondent's
mental condition precluded his ability to make a valid waiver of
his Miranda rights, and that the State had not met its
burden of proving a waiver by "clear and convincing evidence." Held: 1. Coercive police activity is a necessary predicate to finding
that a confession is not "voluntary" within the meaning of the Due
Process Clause. Here, the taking of respondent's statements and
their admission into evidence constituted no violation of that
Clause. While a defendant's mental condition may be a "significant"
factor in the "voluntariness" Page 479 U. S. 158 calculus, this does not justify a conclusion that his mental
condition, by itself and apart from its relation to official
coercion, should ever dispose of the inquiry into constitutional
"voluntariness." Pp. 479 U. S.
163 -167.

															2. Whenever the State bears the burden of proof in a motion to
suppress a statement allegedly obtained in violation of the Miranda doctrine, the State need prove waiver only by a
preponderance of the evidence. Lego v. Twomey, , 404 U. S. 477 ,
reaffirmed. Thus, the Colorado Supreme Court erred in applying a
"clear and convincing evidence" standard. That court also erred in
its analysis of the question whether respondent had waived his Miranda rights. Notions of "free will" have no place in
this area of constitutional law. Respondent's perception of
coercion flowing from the "voice of God" is a matter to which the
Federal Constitution does not speak. Pp. 479 U. S.
167 -171. 702 P.2d
722 , reversed and remanded.

															REHNQUIST, C. J., delivered the opinion of the Court, in which
WHITE, POWELL, O'CONNOR, and SCALIA, JJ., joined, and in all but
Part III-A of which BLACKMUN, J., joined. BLACKMUN, J., filed an
opinion concurring in part and concurring in the judgment, post, p. 479 U. S. 171 .
STEVENS, J., filed an opinion concurring in the judgment in part
and dissenting in part, post, p. 479 U. S. 171 .
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, post, p. 479 U. S.
174 . Page 479 U. S. 159 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

															In this case, the Supreme Court of Colorado held that the United
States Constitution requires a court to suppress a confession when
the mental state of the defendant, at the time he made the
confession, interfered with his "rational intellect" and his "free
will." Because this decision seemed to conflict with prior holdings
of this Court, we granted certiorari. 474 U.
S. 1050 (1986). We conclude that the admissibility of
this kind of statement is governed by state rules of evidence,
rather than by our previous decisions regarding coerced confessions
and Miranda waivers. We therefore reverse. Page 479 U. S. 160 I On August 18, 1983, Officer Patrick Anderson of the Denver
Police Department was in uniform, working in an off-duty capacity
in downtown Denver. Respondent Francis Connelly approached Officer
Anderson and, without any prompting, stated that he had murdered
someone and wanted to talk about it. Anderson immediately advised
respondent that he had the right to remain silent, that anything he
said could be used against him in court, and that he had the right
to an attorney prior to any police questioning. See Miranda v.
Arizona, 384 U. S. 436 (1966). Respondent stated that he understood these rights, but he
still wanted to talk about the murder. Understandably bewildered by
this confession, Officer Anderson asked respondent several
questions. Connelly denied that he had been drinking, denied that
he had been taking any drugs, and stated that, in the past, he had
been a patient in several mental hospitals. Officer Anderson again
told Connelly that he was under no obligation to say anything.
Connelly replied that it was "all right," and that he would talk to
Officer Anderson because his conscience had been bothering him. To
Officer Anderson, respondent appeared to understand fully the
nature of his acts. Tr. 19.

															Shortly thereafter, Homicide Detective Stephen Antuna arrived.
Respondent was again advised of his rights, and Detective Antuna
asked him "what he had on his mind." Id. at 24. Respondent
answered that he had come all the way from Boston to confess to the
murder of Mary Ann Junta, a young girl whom he had killed in Denver
sometime during November, 1982. Respondent was taken to police
headquarters, and a search of police records revealed that the body
of an unidentified female had been found in April, 1983. Respondent
openly detailed his story to Detective Antuna and Sergeant Thomas
Haney, and readily agreed to take the officers to the scene of the
killing. Under Connelly's sole direction, the two officers and
respondent proceeded Page 479 U. S. 161 in a police vehicle to the location of the crime. Respondent
pointed out the exact location of the murder. Throughout this
episode, Detective Antuna perceived no indication whatsoever that
respondent was suffering from any kind of mental illness. Id. at 33-34.

															Respondent was held overnight. During an interview with the
public defender's office the following morning, he became visibly
disoriented. He began giving confused answers to questions, and for
the first time, stated that "voices" had told him to come to Denver
and that he had followed the directions of these voices in
confessing. Id. at 42. Respondent was sent to a state
hospital for evaluation. He was initially found incompetent to
assist in his own defense. By March, 1984, however, the doctors
evaluating respondent determined that he was competent to proceed
to trial.

															At a preliminary hearing, respondent moved to suppress all of
his statements. Dr. Jeffrey Metzner, a psychiatrist employed by the
state hospital, testified that respondent was suffering from
chronic schizophrenia and was in a psychotic state at least as of
August 17, 1983, the day before he confessed. Metzner's interviews
with respondent revealed that respondent was following the "voice
of God." This voice instructed respondent to withdraw money from
the bank, to buy an airplane ticket, and to fly from Boston to
Denver. When respondent arrived from Boston, God's voice became
stronger and told respondent either to confess to the killing or to
commit suicide. Reluctantly following the command of the voices,
respondent approached Officer Anderson Page 479 U. S. 162 and confessed.

															Dr. Metzner testified that, in his expert opinion, respondent
was experiencing "command hallucinations." Id. at 56. This
condition interfered with respondent's "volitional abilities --
that is, his ability to make free and rational choices." Ibid. Dr. Metzner further testified that Connelly's
illness did not significantly impair his cognitive abilities. Thus,
respondent understood the rights he had when Officer Anderson and
Detective Antuna advised him that he need not speak. Id. at 56-57. Dr. Metzner admitted that the "voices" could in reality
be Connelly's interpretation of his own guilt, but explained that,
in his opinion, Connelly's psychosis motivated his confession.

															On the basis of this evidence, the Colorado trial court decided
that respondent's statements must be suppressed because they were
"involuntary." Relying on our decisions in Townsend v.
Sain, 372 U. S. 293 (1963), and Culombe v. Connecticut, 367 U.
S. 568 (1961), the court ruled that a confession is
admissible only if it is a product of the defendant's rational
intellect and "free will." Tr. 88. Although the court found that
the police had done nothing wrong or coercive in securing
respondent's confession, Connelly's illness destroyed his volition
and compelled him to confess. Id. at 89. The trial court
also found that Connelly's mental state vitiated his attempted
waiver of the right to counsel and the privilege against compulsory
self-incrimination. Accordingly, respondent's initial statements
and his custodial confession were suppressed. Id. at
90.

															The Colorado Supreme Court affirmed. 702 P.2d
722 (1985). In that court's view, the proper test for
admissibility is whether the statements are "the product of a
rational intellect and a free will." Id. at 728.
Indeed,

															"the absence of police coercion or duress does not foreclose a
finding of involuntariness. One's capacity for rational judgment
and free choice may be overborne as much by certain forms of severe
mental illness as by external pressure." Ibid. The court found that the very admission of the
evidence in a court of law was sufficient state action to implicate
the Due Process Clause of the Fourteenth Amendment to the United
States Constitution. The evidence fully supported the conclusion
that respondent's initial statement was not the product of a
rational intellect and a free will. The court then considered
respondent's attempted waiver of his constitutional rights and
found that respondent's mental condition precluded his Page 479 U. S. 163 ability to make a valid waiver. Id. at 729. The
Colorado Supreme Court thus affirmed the trial court's decision to
suppress all of Connelly's statements. II The Due Process Clause of the Fourteenth Amendment provides that
no State shall "deprive any person of life, liberty, or property,
without due process of law." Just last Term, in Miller v.
Fenton, 474 U. S. 104 , 474 U. S. 109 (1985), we held that, by virtue of the Due Process Clause,

															"certain interrogation techniques, either in isolation or as
applied to the unique characteristics of a particular suspect, are
so offensive to a civilized system of justice that they must be
condemned." See also Moran v. Burbine, 475 U.
S. 412 , 475 U. S.
432 -434 (1986).

															Indeed, coercive government misconduct was the catalyst for this
Court's seminal confession case, Brown v. Mississippi, 297 U. S. 278 (1936). In that case, police officers extracted confessions from
the accused through brutal torture. The Court had little difficulty
concluding that, even though the Fifth Amendment did not at that
time apply to the States, the actions of the police were "revolting
to the sense of justice." Id. at 297 U. S. 286 .
The Court has retained this due process focus, even after holding,
in Malloy v. Hogan, 378 U. S. 1 (1964),
that the Fifth Amendment privilege against compulsory
self-incrimination applies to the States. See Miller v. Fenton,
supra, at 474 U. S.
109 -110.

															Thus, the cases considered by this Court over the 50 years since Brown v. Mississippi have focused upon the crucial element
of police overreaching. [ Footnote
1 ] While each confession case Page 479 U. S. 164 has turned on its own set of factors justifying the conclusion
that police conduct was oppressive, all have contained a
substantial element of coercive police conduct. Absent police
conduct causally related to the confession, there is simply no
basis for concluding that any state actor has deprived a criminal
defendant of due process of law. [ Footnote 2 ] Respondent correctly notes that, as
interrogators have turned to more subtle forms of psychological
persuasion, courTs have found the mental condition of the defendant
a more significant factor in the "voluntariness" calculus. See
Spano v. New York, 360 U. S. 315 (1959). But this fact does not justify a conclusion that a
defendant's mental condition, by itself and apart from its relation
to official coercion, should ever dispose of the inquiry into
constitutional "voluntariness."

															Respondent relies on Blackburn v. Alabama, 361 U.
S. 199 (1960), and Townsend v. Sain, 372 U. S. 293 (1963), for the proposition that the "deficient mental condition of
the defendants in those cases was sufficient to render their
confessions involuntary." Brief for Respondent 20. But respondent's
reading of Blackburn and Townsend ignores the
integral element of police overreaching present in both cases. In Blackburn, the Court found that the petitioner was
probably insane at the time of his confession, and the police
learned during the interrogation that he had a history of mental
problems. Page 479 U. S. 165 The police exploited this weakness with coercive tactics:

															"the eight- to nine-hour sustained interrogation in a tiny room
which was upon occasion literally filled with police officers; the
absence of Blackburn's friends, relatives, or legal counsel; [and]
the composition of the confession by the Deputy Sheriff, rather
than by Blackburn."

															361 U.S. at 361 U. S.
207 -208. These tactics supported a finding that the
confession was involuntary. Indeed, the Court specifically
condemned police activity that "wrings a confession out of an
accused against his will." Id. at 361 U. S.
206 -207. Townsend presented a similar instance
of police wrongdoing. In that case, a police physician had given Townsend a drug with truth serum properties. 372 U.S. at 372 U. S.
298 -299. The subsequent confession, obtained by officers
who knew that Townsend had been given drugs, was held
involuntary. These two cases demonstrate that, while mental
condition is surely relevant to an individual's susceptibility to
police coercion, mere examination of the confessant's state of mind
can never conclude the due process inquiry.

															Our "involuntary confession" jurisprudence is entirely
consistent with the settled law requiring some sort of "state
action" to support a claim of violation of the Due Process Clause
of the Fourteenth Amendment. The Colorado trial court, of course,
found that the police committed no wrongful acts, and that finding
has been neither challenged by respondent nor disturbed by the
Supreme Court of Colorado. The latter court, however, concluded
that sufficient state action was present by virtue of the admission
of the confession into evidence in a court of the State. 702 P.2d
at 728-729.

															The difficulty with the approach of the Supreme Court of
Colorado is that it fails to recognize the essential link between
coercive activity of the State, on the one hand, and a resulting
confession by a defendant, on the other. The flaw in respondent's
constitutional argument is that it would expand our previous line
of "voluntariness" cases into a far-ranging requirement that courts
must divine a defendant's Page 479 U. S. 166 motivation for speaking or acting as he did even though there be
no claim that governmental conduct coerced his decision.

															The most outrageous behavior by a private party seeking to
secure evidence against a defendant does not make that evidence
inadmissible under the Due Process Clause. See Walter v. United
States, 447 U. S. 649 , 447 U. S. 656 (1980); Coolidge v. New Hampshire, 403 U.
S. 443 , 403 U. S.
487 -488 (1971); Burdeau v. McDowell, 256 U. S. 465 , 256 U. S. 476 (1921). We have also observed that

															"[j]urists and scholars uniformly have recognized that the
exclusionary rule imposes a substantial cost on the societal
interest in law enforcement by its proscription of what concededly
is relevant evidence." United States v. Janis, 428 U.
S. 433 , 428 U. S.
448 -449 (1976). See also United States v.
Havens, 446 U. S. 620 , 446 U. S. 627 (1980); United States v. Calandra, 414 U.
S. 338 (1974). Moreover, suppressing respondent's
statements would serve absolutely no purpose in enforcing
constitutional guarantees. The purpose of excluding evidence seized
in violation of the Constitution is to substantially deter future
violations of the Constitution. See United States v. Leon, 468 U. S. 897 , 468 U. S.
906 -913 (1984). Only if we were to establish a brand new
constitutional right -- the right of a criminal defendant to
confess to his crime only when totally rational and properly
motivated -- could respondent's present claim be sustained.

															We have previously cautioned against expanding

															"currently applicable exclusionary rules by erecting additional
barriers to placing truthful and probative evidence before state
juries. . . ." Lego v. Twomey, 404 U. S. 477 , 404 U. S.
488 -489 (1972). We abide by that counsel now. "[T]he
central purpose of a criminal trial is to decide the factual
question of the defendant's guilt or innocence," Delaware v.
Van Arsdall, 475 U. S. 673 , 475 U. S. 681 (1986), and, while we have previously held that exclusion of
evidence may be necessary to protect constitutional guarantees,
both the necessity for the collateral inquiry and the exclusion of
evidence deflect a criminal trial from its basic purpose.
Respondent would now have us require Page 479 U. S. 167 sweeping inquiries into the state of mind of a criminal
defendant who has confessed, inquiries quite divorced from any
coercion brought to bear on the defendant by the State. We think
the Constitution rightly leaves this sort of inquiry to be resolved
by state laws governing the admission of evidence, and erects no
standard of its own in this area. A statement rendered by one in
the condition of respondent might be proved to be quite unreliable,
but this is a matter to be governed by the evidentiary laws of the
forum, see, e.g., Fed.Rule Evid. 601, and not by the Due
Process Clause of the Fourteenth Amendment.

															"The aim of the requirement of due process is not to exclude
presumptively false evidence, but to prevent fundamental unfairness
in the use of evidence, whether true or false." Lisenba v. California, 314 U.
S. 219 , 314 U. S. 236 (1941).

															We hold that coercive police activity is a necessary predicate
to the finding that a confession is not "voluntary" within the
meaning of the Due Process Clause of the Fourteenth Amendment. We
also conclude that the taking of respondent's statements, and their
admission into evidence, constitute no violation of that
Clause. III The Supreme Court of Colorado went on to affirm the trial
court's ruling that respondent's later statements made while in
custody should be suppressed because respondent had not waived his
right to consult an attorney and his right to remain silent. That
court held that the State must bear its burden of proving waiver of
these Miranda rights by "clear and convincing evidence."
702 P.2d at 729. Although we have stated in passing that the State
bears a "heavy" burden in proving waiver, Tague v.
Louisiana, 444 U. S. 469 (1980) (per curiam); North Carolina v. Butler, 441 U. S. 369 , 441 U. S. 373 (1979); Miranda v. Arizona, 384 U.S. at 384 U. S. 475 ,
we have never Page 479 U. S. 168 held that the "clear and convincing evidence" standard is the
appropriate one.

															In Lego v. Twomey, supra, this Court upheld a procedure
in which the State established the voluntariness of a confession by
no more than a preponderance of the evidence. We upheld it for two
reasons. First, the voluntariness determination has nothing to do
with the reliability of jury verdicts; rather, it is designed to
determine the presence of police coercion. Thus, voluntariness is
irrelevant to the presence or absence of the elements of a crime,
which must be proved beyond a reasonable doubt. See In re
Winship, 397 U. S. 358 (1970). Second, we rejected Lego's assertion that a high burden of
proof was required to serve the values protected by the
exclusionary rule. We surveyed the various reasons for excluding
evidence, including a violation of the requirements of Miranda
v. Arizona, supra, and we stated that,

															"[i]n each instance, and without regard to its probative value,
evidence is kept from the trier of guilt or innocence for reasons
wholly apart from enhancing the reliability of verdicts." Lego v. Twomey, 404 U.S. at 404 U. S. 488 .
Moreover, we rejected the argument that

															"the importance of the values served by exclusionary rules is
itself sufficient demonstration that the Constitution also requires
admissibility to be proved beyond a reasonable doubt." Ibid. Indeed, the Court found that

															"no substantial evidence has accumulated that federal rights
have suffered from determining admissibility by a preponderance of
the evidence." Ibid. We now reaffirm our holding in Lego: whenever the State
bears the burden of proof in a motion to suppress a statement that
the defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver only by a
preponderance of the evidence. See Nix v. Williams, 467 U. S. 431 , 467 U. S. 444 ,
and n. 5 (1984); United States v. Matlock, 415 U.
S. 164 , 415 U. S. 178 ,
n. 14 (1974) ("[T]he controlling burden of proof at suppression
hearings should impose no greater burden than proof by a
preponderance of the evidence . . ."). Page 479 U. S. 169 Cf. Moore v. Michigan, 355 U.
S. 155 , 355 U. S.
161 -162 (1957). If, as we held in Lego v. Twomey,
supra, the voluntariness of a confession need be established
only by a preponderance of the evidence, then a waiver of the
auxiliary protections established in Miranda should
require no higher burden of proof.

															"[E]xclusionary rules are very much aimed at deterring lawless
conduct by police and prosecution, and it is very doubtful that
escalating the prosecution's burden of proof in . . . suppression
hearings would be sufficiently productive in this respect to
outweigh the public interest in placing probative evidence before
juries for the purpose of arriving at truthful decisions about
guilt or innocence." Lego v. Twomey, supra, at 404 U. S. 489 . See also United States v. Leon, 468 U.S. at 468 U. S.
906 -913. B We also think that the Supreme Court of Colorado was mistaken in
its analysis of the question whether respondent had waived his Miranda rights in this case. [ Footnote 3 ] Of course, a waiver must at a minimum be
"voluntary" to be effective against an accused. Miranda,
supra, at 384 U. S. 444 , 384 U. S. 476 ; North Carolina v. Butler, supra, at 441 U. S. 373 .
The Supreme Court of Colorado, in addressing this question, relied
on the testimony of the court-appointed psychiatrist to the effect
that respondent was not capable of making a

															"free decision with respect to his constitutional right of
silence . . . and his constitutional right to confer with a lawyer
before talking to the police."

															702 P.2d at 729.

															We think that the Supreme Court of Colorado erred in importing
into this area of constitutional law notions of "free will" that
have no place there. There is obviously no reason to require more
in the way of a "voluntariness" inquiry in the Page 479 U. S. 170 Miranda waiver context than in the Fourteenth Amendment
confession context. The sole concern of the Fifth Amendment, on
which Miranda was based, is governmental coercion. See
United States v. Washington, 431 U. S. 181 , 431 U. S. 187 (1977); Miranda, supra, at 479 U. S. 460 .
Indeed, the Fifth Amendment privilege is not concerned "with moral
and psychological pressures to confess emanating from sources other
than official coercion." Oregon v. Elstad, 470 U.
S. 298 , 470 U. S. 305 (1985). The voluntariness of a waiver of this privilege has always
depended on the absence of police overreaching, not on "free
choice" in any broader sense of the word. See Moran v.
Burbine, 475 U.S. at 475 U. S. 421 ("[T]he relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice,
rather than intimidation, coercion or deception. . . . [T]he record
is devoid of any suggestion that police resorted to physical or
psychological pressure to elicit the statements"); Fare v.
Michael C., 442 U. S. 707 , 442 U. S.
726 -727 (1979) (The defendant was "not worn down by
improper interrogation tactics or lengthy questioning or by
trickery or deceit. . . . The officers did not intimidate or
threaten respondent in any way. Their questioning was restrained
and free from the abuses that so concerned the Court in Miranda ").

															Respondent urges this Court to adopt his "free will" rationale,
and to find an attempted waiver invalid whenever the defendant
feels compelled to waive his rights by reason of any compulsion,
even if the compulsion does not flow from the police. But such a
treatment of the waiver issue would "cut this Court's holding in
[ Miranda ] completely loose from its own explicitly stated
rationale." Beckwith v. United States, 425 U.
S. 341 , 425 U. S. 345 (1976). Miranda protects defendants against government
coercion leading them to surrender rights protected by the Fifth
Amendment; it goes no further than that. Respondent's perception of
coercion flowing from the "voice of God," however important or
significant such a Page 479 U. S. 171 perception may be in other disciplines, is a matter to which the
United States Constitution does not speak. IV The judgment of the Supreme Court of Colorado is accordingly
reversed, and the cause is remanded for further proceedings not
inconsistent with this opinion. [ Footnote 4 ] It is so ordered. [ Footnote 1 ] E.g., Mincey v. Arizona, 437 U.
S. 385 (1978) (defendant subjected to 4-hour
interrogation while incapacitated and sedated in intensive-care
unit); Greenwald v. Wisconsin, 390 U.
S. 519 (1968) (defendant, on medication, interrogated
for over 18 hours without food or sleep); Beecher v.
Alabama, 389 U. S. 35 (1967)
(police officers held gun to the head of wounded confessant to
extract confession); Davis v. North Carolina, 384 U.
S. 737 (1966) (16 days of incommunicado interrogation in
closed cell without windows, limited food, and coercive tactics); Reck v. Pate, 367 U. S. 433 (1961) (defendant held for four days with inadequate food and
medical attention until confession obtained); Culombe v.
Connecticut, 367 U. S. 568 (1961) (defendant held for five days of repeated questioning during
which police employed coercive tactics); Payne v.
Arkansas, 356 U. S. 560 (1958) (defendant held incommunicado for three days with little
food; confession obtained when officers informed defendant that
Chief of Police was preparing to admit lynch mob into jail); Ashcraft v. Tennessee, 322 U. S. 143 (1944) (defendant questioned by relays of officers for 36 hours
without an opportunity for sleep).

															[ Footnote 2 ]

															Even where there is causal connection between police misconduct
and a defendant's confession, it does not automatically follow that
there has been a violation of the Due Process Clause. See,
e.g., Frazier v. Cupp, 394 U. S. 731 , 394 U. S. 739 (1969).

															[ Footnote 3 ]

															Petitioner conceded at oral argument that, when Officer Anderson
handcuffed respondent, the custody requirement of Miranda was satisfied. For purposes of our decision, we accept that
concession, and we similarly assume that the police officers
"interrogated" respondent within the meaning of Miranda. [ Footnote 4 ]

															It is possible to read the opinion of the Supreme Court of
Colorado as finding respondent's Miranda waiver invalid on
other grounds. Even if that is the case, however, we nonetheless
reverse the judgment in its entirety because of our belief that the
Supreme Court of Colorado's analysis was influenced by its mistaken
view of "voluntariness" in the constitutional sense.
Reconsideration of other issues, not inconsistent with our opinion,
is of course open to the Supreme Court of Colorado on remand.

															JUSTICE BLACKMUN, concurring in part and concurring in the
judgment.

															I join Parts I, II, III-B, and IV of the Court's opinion and its
judgment.

															I refrain, however, from joining Part III-A of the opinion.
Whatever may be the merits of the issue discussed there, which
concerns the level of the State's burden of proof in showing that
respondent had waived his rights under Miranda v. Arizona, 384 U. S. 436 (1966), that issue was neither raised nor briefed by the parties,
and, in my view, it is not necessary to the decision.

															JUSTICE STEVENS, concurring in the judgment in part and
dissenting in part.

															Respondent made incriminatory statements both before and after
he was handcuffed and taken into custody. The only question
presented by the Colorado District Attorney in his certiorari
petition concerned the admissibility of respondent's precustodial
statements. Pet. for Cert. i, 14-15. [ Footnote 2/1 ] I Page 479 U. S. 172 agree with the State of Colorado that the United States
Constitution does not require suppression of those statements, but,
in reaching that conclusion, unlike the Court, I am perfectly
willing to accept the state trial court's finding that the
statements were involuntary.

															The state trial court found that, in view of the "overwhelming
evidence presented by the Defense," the prosecution did not meet
its burden of demonstrating that respondent's initial statements to
Officer Anderson were voluntary. App. 47-48. Nevertheless, in my
opinion, the use of these involuntary precustodial statements does
not violate the Fifth Amendment, because they were not the product
of state compulsion. Although they may well be so unreliable that
they could not support a conviction, at this stage of the
proceeding, I could not say that they have no probative force
whatever. The fact that the statements were involuntary -- just as
the product of Lady Macbeth's nightmare was involuntary [ Footnote 2/2 ] -- does not mean that their
use for whatever evidentiary value they may have is fundamentally
unfair or a denial of due process.

															The post-custodial statements raise an entirely distinct
question. When the officer whom respondent approached elected to
handcuff him and to take him into custody, the police assumed a
fundamentally different relationship with him. Prior to that
moment, the police had no duty to give respondent Miranda warnings, and had every right to continue their exploratory
conversation with him. [ Footnote
2/3 ] Once the custodial relationship was established, however,
the questioning assumed Page 479 U. S. 173 a presumptively coercive character. Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 467 (1966). In my opinion, the questioning could not thereafter go
forward in the absence of a valid waiver of respondent's
constitutional rights unless he was provided with counsel. Since it
is undisputed that respondent was not then competent to stand
trial, I would also conclude that he was not competent to waive his
constitutional right to remain silent. [ Footnote 2/4 ]

															The Court seems to believe that a waiver can be voluntary even
if it is not the product of an exercise of the defendant's
" free will.'" Ante at 479 U. S. 169 .
The Court's position is not only incomprehensible to me, it is also
foreclosed by the Court's recent pronouncement in Moran v.
Burbine, 475 U. S. 412 , 475 U. S. 421 (1986), that "the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice. . .
. [ Footnote 2/5 ]"

															Because respondent's waiver was not voluntary in that sense, his
custodial interrogation was presumptively coercive. The Colorado
Supreme Court was unquestionably correct in concluding that his
post-custodial incriminatory statements were inadmissible.

															Accordingly, I concur in the judgment insofar as it applies to
respondent's precustodial statements, but respectfully dissent Page 479 U. S. 174 from the Court's disposition of the question that was not
presented by the certiorari petition.

															[ Footnote 2/1 ]

															The petition states: "[Respondent's] later confession, which
involved a Miranda issue, is not an issue in this
petition." Pet. for Cert. 15.

															[ Footnote 2/2 ]

															"What, will these hands ne'er be clean?"

															" * * * *" "Here's the smell of the blood still: all the perfumes of Arabia
will not sweeten this little hand."

															W. Shakespeare, Macbeth, Act V, scene 1, lines 41, 47.

															Lady Macbeth's "eyes are open," "but their sense is shut." Id. at line 23.

															[ Footnote 2/3 ] See Schneckloth v. Bustamonte, 412 U.
S. 218 , 412 U. S. 247 (1973) (" Miranda, of course, did not reach investigative
questioning of a person not in custody . . . ").

															[ Footnote 2/4 ]

															The trial court found:

															"Here, in the Court's estimation, there's no question that the
Defendant did not exercise free will in choosing to talk to the
police. He exercised a choice both [ sic ] of which were
mandated by auditory hallucination, had no basis in reality, and
were the product of a psychotic break with reality. The Defendant
at the time of the confession had absolutely, in the Court's
estimation, no volition or choice to make. He was compelled by his
illness to do that which he did, and he did so in a manner which is
not unusual for people who suffer schizophrenia."

															App. 47.

															[ Footnote 2/5 ]

															The Court relies on the further statement in Moran v.
Burbine, 475 U.S. at 475 U. S. 421 ,
that the waiver must result from "free and deliberate choice,
rather than intimidation, coercion, or deception. . . ." Ante at 479 U. S. 170 .
Obviously, this dichotomy does not exhaust the possibilities; the
mere absence of police misconduct does not establish that the
suspect has made a free and deliberate choice when the suspect is
not competent to stand trial.

															JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.

															Today the Court denies Mr. Connelly his fundamental right to
make a vital choice with a sane mind, involving a determination
that could allow the State to deprive him of liberty or even life.
This holding is unprecedented:

															"Surely, in the present stage of our civilization, a most basic
sense of justice is affronted by the spectacle of incarcerating a
human being upon the basis of a statement he made while insane. . .
." Blackburn v. Alabama, 361 U. S. 199 , 361 U. S. 207 (1960). Because I believe that the use of a mentally ill person's
involuntary confession is antithetical to the notion of fundamental
fairness embodied in the Due Process Clause, I dissent. I The respondent's seriously impaired mental condition is clear on
the record of this case. At the time of his confession, Mr.
Connelly suffered from a "long-standing severe mental disorder,"
diagnosed as chronic paranoid schizophrenia. 1 Record 16. He had
been hospitalized for psychiatric reasons five times prior to his
confession; his longest hospitalization lasted for seven months. Id. at 12. Mr. Connelly heard imaginary voices and saw
nonexistent objects. Tr. 56. He believed that his father was God,
and that he was a reincarnation of Jesus. 1 Record 15.

															At the time of his confession, Mr. Connelly's mental problems
included "grandiose and delusional thinking." Id. at 16.
He had a known history of "thought withdrawal and insertion." Id. at 14. Although physicians had treated Mr. Connelly
"with a wide variety of medications in the past, including
antipsychotic medications," he had not taken any antipsychotic
medications for at least six months prior to his confession. Id. at 12. Following his arrest, Mr. Connelly initially
was found incompetent to stand trial because the Page 479 U. S. 175 court-appointed psychiatrist, Dr. Metzner, "wasn't very
confident that he could consistently relate accurate information."
Tr. 68. Dr. Metzner testified that Mr. Connelly was unable "to make
free and rational choices" due to auditory hallucinations:

															"[W]hen he was read his Miranda rights, he probably had
the capacity to know that he was being read his Miranda rights [but] he wasn't able to use that information, because of the
command hallucinations that he had experienced." Id. at 56-57. He achieved competency to stand trial
only after six months of hospitalization and treatment with
antipsychotic and sedative medications. Id. at 68; 1
Record 16.

															The state trial court found that the "overwhelming evidence
presented by the Defense" indicated that the prosecution did not
meet its burden of demonstrating by a preponderance of the evidence
that the initial statement to Officer Anderson was voluntary. While
the court found no police misconduct, it held:

															"[T]here's no question that the Defendant did not exercise free
will in choosing to talk to the police. He exercised a choice both
[ sic ] of which were mandated by auditory hallucination,
had no basis in reality, and were the product of a psychotic break
with reality. The Defendant at the time of the confession had
absolutely in the Court's estimation no volition or choice to
make."

															App. 47. The trial court also held that the State had not shown
by clear and convincing evidence that the defendant had waived his Miranda right to counsel and to self-incrimination
"voluntarily, knowingly and intelligently." App. 48.

															The Supreme Court of Colorado affirmed after evaluating "the
totality of circumstances" surrounding the unsolicited confession
and the waiver of Miranda rights. 702 P.2d
722 , 728 (1985). Page 479 U. S. 176 II The absence of police wrongdoing should not, by itself,
determine the voluntariness of a confession by a mentally ill
person. The requirement that a confession be voluntary reflects a
recognition of the importance of free will and of reliability in
determining the admissibility of a confession, and thus demands an
inquiry into the totality of the circumstances surrounding the
confession. A Today's decision restricts the application of the term
"involuntary" to those confessions obtained by police coercion.
Confessions by mentally ill individuals or by persons coerced by
parties other than police officers are now considered "voluntary."
The Court's failure to recognize all forms of involuntariness or
coercion as antithetical to due process reflects a refusal to
acknowledge free will as a value of constitutional consequence. But
due process derives much of its meaning from a conception of
fundamental fairness that emphasizes the right to make vital
choices voluntarily:

															"The Fourteenth Amendment secures against state invasion . . .
the right of a person to remain silent unless he chooses to speak
in the unfettered exercise of his own will. . . ." Malloy v. Hogan, 378 U. S. 1 , 378 U. S. 8 (1964). This right requires vigilant protection if we are to
safeguard the values of private conscience and human dignity.

															This Court's assertion that we would be required "to establish a
brand new constitutional right" to recognize the respondent's
claim, ante at 479 U. S. 166 ,
ignores 200 years of constitutional jurisprudence. [ Footnote 3/1 ] As we stated in Culombe v.
Connecticut, 367 U. S. 568 (1961): Page 479 U. S. 177 "The ultimate test remains that which has been the only clearly
established test in Anglo-American courts for two hundred years:
the test of voluntariness. Is the confession the product of an
essentially free and unconstrained choice by its maker? . . . The
line of distinction is that at which governing self-direction is
lost and compulsion, of whatever nature or however
infused, propels or helps to propel the confession." Id. at 367 U. S. 602 (emphasis added). A true commitment to fundamental fairness
requires that the inquiry be

															"not whether the conduct of state officers in obtaining the
confession is shocking, but whether the confession was 'free and
voluntary.' . . ." Malloy v. Hogan, supra, at 378 U. S. 7 .

															We have never confined our focus to police coercion, because the
value of freedom of will has demanded a broader inquiry. See
Blackburn v. Alabama, 361 U.S. at 361 U. S.
206 -207. The confession cases decided by this Court over
the 50 years since Brown v. Mississippi, 297 U.
S. 278 (1936), have focused upon both police
overreaching and free will. While it is true that police
overreaching has been an element of every confession case to date, see ante at 479 U. S.
163 -164, n. 1, it is also true that, in every case, the
Court has made clear that ensuring that a confession is a product
of free will is an independent concern. [ Footnote 3/2 ] The fact that involuntary confessions Page 479 U. S. 178 have always been excluded, in part, because of police
overreaching signifies only that this is a case of first
impression. Until today, we have never upheld the admission of a
confession that does not reflect the exercise of free will.

															The Court cites Townsend v. Sain, 372 U.
S. 293 (1963), and Blackburn in support of its
view that police wrongdoing should be the central focus of inquiry.
In Townsend, we overturned a murder conviction because the
defendant's conviction was determined to be involuntary. The
defendant suffered from stomach pains induced by heroin withdrawal.
The police properly contacted a physician, who administered
medications alleviating the withdrawal symptoms. The defendant then
confessed. 372 U.S. at 372 U. S. 298 .
Although the physician denied that he purposely administered "truth
serum," there was an indication that the medications could have had
such a side effect upon a narcotic addict. Id. at 372 U. S.
302 .

															The Townsend Court examined "many relevant
circumstances:"

															"Among these are [the defendant's] lack of counsel at the time,
his drug addiction, the fact that he was a 'near mental defective,'
and his youth and inexperience." Id. at 372 U. S. 308 ,
n. 4. According to today's Court, the police wrongdoing in Townsend was that the police physician had allegedly Page 479 U. S. 179 given the defendant a drug with truth-serum properties, and that
the confession was obtained by officers who knew that the defendant
had been given drugs. Ante at 479 U. S. 165 .
But, in fact, "the police . . . did not know what [medications] the
doctor had given [the defendant]." 372 U.S. at 372 U. S. 299 .
And the Townsend Court expressly stated that police
wrongdoing was not an essential factor:

															"It is not significant that the drug may have been administered
and the questions asked by persons unfamiliar with hyoscine's
properties as a 'truth serum,' if these properties exist. Any
questioning by police officers which in fact produces a
confession which is not the product of a free intellect renders
that confession inadmissible. The Court has usually so stated the
test." Id. at 372 U. S. 308 (footnote omitted; emphasis in original).

															Furthermore, in prescient refutation of this Court's "police
wrongdoing" theory, the Townsend Court analyzed Blackburn, the other case relied upon by this Court to
"demonstrate" that police wrongdoing was a more important factor
than the defendant's state of mind. The Court in Townsend stated:

															"[I]n Blackburn v. Alabama, 361 U. S.
199 , we held irrelevant the absence of evidence of
improper purpose on the part of the questioning officers. There the
evidence indicated that the interrogating officers thought the
defendant sane when he confessed, but we judged the confession
inadmissible because the probability was that the defendant was in fact insane at the time."

															372 U.S. at 372 U. S. 309 (emphasis added). Thus, the Townsend Court interpreted Blackburn as a case involving a confession by a mentally
ill defendant in which the police harbored no improper purpose.

															This Court abandons this precedent in favor of the view that
only confessions rendered involuntary by some state action are
inadmissible, and that the only relevant form of state Page 479 U. S. 180 action is police conduct. But even if state action is required,
police overreaching is not its only relevant form. The Colorado
Supreme Court held that the trial court's admission of the
involuntary confession into evidence is also state action. The
state court's analysis is consistent with Brown v.
Mississippi, 297 U. S. 278 (1936), on which this Court so heavily relies. Brown, a
case involving the use of confessions at trial, makes clear
that

															"[t]he due process clause requires"

															"that state action, whether through one agency or
another, shall be consistent with the fundamental principles
of liberty and justice which lie at the base of all our civil and
political institutions." Id. at 297 U. S. 286 (emphasis added), citing Hebert v. Louisiana, 272 U.
S. 312 , 272 U. S. 316 (1926). Police conduct constitutes but one form of state
action.

															"The objective of deterring improper police conduct is only part
of the larger objective of safeguarding the integrity of our
adversary system." Harris v. New York, 401 U. S. 222 , 401 U. S. 231 (1971) (BRENNAN, J., dissenting). [ Footnote 3/3 ] Page 479 U. S. 181 The only logical "flaw" which the Court detects in this argument
is that it would require courts to

															"divine a defendant's motivation for speaking or acting as he
did even though there be no claim that governmental conduct coerced
his decision." Ante at 479 U. S. 165 .
Such a criticism, however, ignores the fact that we have
traditionally examined the totality of the circumstances, including
the motivation and competence of the defendant, in determining
whether a confession is voluntary. Even today's Court admits
that,

															"as interrogators have turned to more subtle forms of
psychological persuasion, courts have found the mental condition of
the defendant a more significant factor in the 'voluntariness'
calculus." Ante at 479 U. S. 164 .
The Court's holding that involuntary confessions are only those
procured through police misconduct is thus inconsistent with the
Court's historical insistence that only confessions reflecting an
exercise of free will be admitted into evidence. B Since the Court redefines voluntary confessions to include
confessions by mentally ill individuals, the reliability of these
confessions becomes a central concern. A concern for reliability is
inherent in our criminal justice system, which relies upon
accusatorial, rather than inquisitorial, practices. While an
inquisitorial system prefers obtaining confessions from criminal
defendants, an accusatorial system must place its faith in
determinations of "guilt by evidence independently and freely
secured." Rogers v. Richmond, 365 U.
S. 534 , 365 U. S. 541 (1961). In Escobedo v. Illinois, 378 U.
S. 478 (1964), we justified our reliance upon
accusatorial practices:

															"We have learned the lesson of history, ancient and modern, that
a system of criminal law enforcement which comes to depend on the
'confession' will, in the long run, be less reliable and more
subject to abuses than a system which depends on extrinsic evidence
independently secured through skillful investigation." Id. at 378 U. S.
488 -489 (footnotes omitted). Page 479 U. S. 182 Our interpretation of the Due Process Clause has been shaped by
this preference for accusatorial practices, see Miller v.
Fenton, 474 U. S. 104 , 474 U. S.
109 -110 (1985); Malloy v. Hogan, 378 U.S. at 378 U. S. 7 ; Watts v. Indiana, 338 U. S. 49 , 338 U. S. 54 (1949), and by a concern for reliability, see Barefoot v.
Estelle, 463 U. S. 880 , 463 U. S. 925 (1983) (BLACKMUN, J., dissenting); Foster v. California, 394 U. S. 440 , 394 U. S. 442 (1969).

															Our distrust for reliance on confessions is due, in part, to
their decisive impact upon the adversarial process. Triers of fact
accord confessions such heavy weight in their determinations
that

															"the introduction of a confession makes the other aspects of a
trial in court superfluous, and the real trial, for all practical
purposes, occurs when the confession is obtained."

															E. Cleary, McCormick on Evidence 316 (2d ed. 1972); see also
Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 466 (1966); Mapp v. Ohio, 367 U. S. 643 , 367 U. S. 685 (1961). No other class of evidence is so profoundly prejudicial. See Saltzburg, Standards of Proof and Preliminary
Questions of Fact, 27 Stan.L.Rev. 271, 293 (1975).

															"Thus the decision to confess before trial amounts in effect to
a waiver of the right to require the state at trial to meet its
heavy burden of proof."

															Cleary, supra, at 316.

															Because the admission of a confession so strongly tips the
balance against the defendant in the adversarial process, we must
be especially careful about a confession's reliability. We have to
date not required a finding of reliability for involuntary
confessions only because all such confessions have been
excluded upon a finding of involuntariness, regardless of
reliability. See Jackson v. Denno, 378 U.
S. 368 , 378 U. S.
383 -386 (1964). [ Footnote
3/4 ] The Court's adoption today of a restrictive definition of
an "involuntary" confession will require heightened scrutiny of a
confession's reliability. Page 479 U. S. 183 The instant case starkly highlights the danger of admitting a
confession by a person with a severe mental illness. The trial
court made no findings concerning the reliability of Mr. Connelly's
involuntary confession, since it believed that the confession was
excludable on the basis of involuntariness. However, the
overwhelming evidence in the record points to the unreliability of
Mr. Connelly's delusional mind. Mr. Connelly was found incompetent
to stand trial because he was unable to relate accurate
information, and the court-appointed psychiatrist indicated that
Mr. Connelly was actively hallucinating and exhibited delusional
thinking at the time of his confession. See supra at 479 U. S. 174 .
The Court, in fact, concedes that "[a] statement rendered by one in
the condition of respondent might be proved to be quite unreliable.
. . ." Ante at 479 U. S.
167 .

															Moreover, the record is barren of any corroboration of the
mentally ill defendant's confession. No physical evidence links the
defendant to the alleged crime. Police did not identify the alleged
victim's body as the woman named by the defendant. Mr. Connelly
identified the alleged scene of the crime, but it has not been
verified that the unidentified body was found there or that a crime
actually occurred there. There is not a shred of competent evidence
in this record linking the defendant to the charged homicide. There
is only Mr. Connelly's confession.

															Minimum standards of due process should require that the trial
court find substantial indicia of reliability, on the basis of
evidence extrinsic to the confession itself, before admitting the
confession of a mentally in person into evidence. I would require
the trial court to make such a finding on remand. To hold otherwise
allows the State to imprison and possibly to execute a mentally ill
defendant based solely upon an inherently unreliable
confession. III This Court inappropriately reaches out to address two Miranda issues not raised by the prosecutor in his
petition Page 479 U. S. 184 for certiorari: (1) the burden of proof upon the government in
establishing the voluntariness of Miranda rights, and (2)
the effect of mental illness on the waiver of those rights in the
absence of police misconduct. [ Footnote
3/5 ] I emphatically dissent from the Court's holding that the
government need prove waiver by only a preponderance of the
evidence, and from its conclusion that a waiver is automatically
voluntary in the absence of police coercion. A In holding that the government need only prove the voluntariness
of the waiver of Miranda rights by a preponderance of the
evidence, the Court ignores the explicit command of Miranda :

															"If the interrogation continues without the presence of an
attorney and a statement is taken, a heavy burden rests on
the government to demonstrate that the defendant Page 479 U. S. 185 knowingly and intelligently waived his privilege against
self-incrimination and his right to retained or appointed counsel.
This Court has always set high standards of proof for the waiver of
constitutional rights, and we re-assert these standards as applied
to in-custody interrogation." Miranda v. Arizona, 384 U.S. at 384 U. S. 475 (emphasis added; citations omitted).

															In recognition of the importance of the Due Process Clause and
the Fifth Amendment, we always have characterized the State's
burden of proof on a Miranda waiver as "great" and
"heavy." See, e.g., Tague v. Louisiana, 444 U.
S. 469 , 444 U. S.
470 -471 (1980); North Carolina v. Butler, 441 U. S. 369 , 441 U. S. 373 (1979); Schneckloth v. Bustamonte, 412 U.
S. 218 , 412 U. S. 236 (1973). Furthermore, under the Sixth Amendment, we have required
the prosecution to meet a clear and convincing standard in
demonstrating that evidence is not tainted by the absence of
counsel at police lineups. See United States v. Wade, 388 U. S. 218 , 388 U. S. 240 (1967). Imposing the weakest possible burden of proof for waiver of Miranda 's right to counsel plainly ignores this
precedent.

															The Court bases its holding on Lego v. Twomey, 404 U. S. 477 (1972). The four-Member Lego Court concluded that a
confession obtained when the defendant was not in custody could be
admitted into evidence if the prosecution proved its voluntariness
by a preponderance of the evidence. [ Footnote 3/6 ] The Lego Court's rationale rested
on two related premises. First, since all involuntary confessions
were excluded, even if truthful, the voluntariness determination
was not based on reliability. Thus, the requirement of proof beyond
reasonable doubt for every fact necessary to constitute the charged
crime, In re Winship, 397 U. S. 358 , 397 U. S. 364 (1970), was not Page 479 U. S. 186 applicable, because the concern of the Winship Court
was the reliability of verdicts. 404 U.S. at 404 U. S.
482 -486. Second, the four Justices constituting the
majority in Lego rejected the petitioner's argument that
proof beyond reasonable doubt would best serve the constitutional
values that the exclusionary rule was meant to protect. The four
again emphasized that reliability of evidence was not a concern,
since all involuntary confessions were excluded. It found no
evidence that federal rights had suffered by imposing the weakest
standard of proof for exclusionary rules. Id. at 404 U. S.
487 -489.

															I adhere to my Lego dissent. The constitutional ideal
that involuntary confessions should never be admitted against the
defendant in criminal cases deserves protection by the highest
standard of proof -- proof beyond a reasonable doubt. Id. at 404 U. S. 491 .
The lower standard of proof results

															"in the admission of more involuntary confessions than would be
admitted were the prosecution required to meet a higher
standard." Id. at 404 U. S.
493 .

															"Compelled self-incrimination is so alien to the American sense
of justice that I see no way that such a view could ever be
justified." Id. at 404 U. S.
494 .

															But even if the four Justices in Lego were correct,
their holding is irrelevant to this case. The presumption
underlying the reasoning in Lego was that reliability was
not an important concern, because involuntary confessions were
always excluded. Today the Court redefines voluntariness so that
involuntary confessions that are not the result of police
wrongdoing are no longer excluded under the voluntariness standard.
My analysis in Part II-B shows that reliability should now become a
major concern in the admission of such confessions. Since the
reliability of verdicts is at stake, proof beyond a reasonable
doubt constitutes the appropriate standard. [ Footnote 3/7 ] Page 479 U. S. 187 Finally, Lego involved a situation in which the
defendant was not in custody. By contrast, a Miranda waiver is found while a defendant is in police custody. The
coercive custodial interrogation atmosphere poses an increased
danger of police overreaching. The police establish the isolated
conditions of custody, and can document the voluntary waiver of Miranda rights through disinterested witnesses or
recordings. See Miranda v. Arizona, supra, at 384 U. S. 475 .
It is therefore appropriate to place a higher burden of proof on
the government in establishing a waiver of Miranda rights.

															The ultimate irony is that, even accepting the preponderance of
the evidence as the correct standard, the prosecution still failed
to meet this burden of proof. The Colorado Supreme Court found that
Dr. Metzner, the court-appointed psychiatrist and the only expert
to testify, "clearly established" that Mr. Connelly "was incapable"
of making a "free decision" respecting his Miranda rights.
702 P.2d at 729. Thus, the prosecution failed -- even by the modest
standard imposed today -- to prove that Mr. Connelly voluntarily
waived his Miranda rights. B The Court imports its voluntariness analysis, which makes police
coercion a requirement for a finding of involuntariness, into its
evaluation of the waiver of Miranda rights. My reasoning
in Part II-A, supra, at 479 U. S.
176 -181, applies a fortiori to involuntary
confessions made in custody involving the waiver of constitutional
rights. See also Miranda v. Arizona, supra, at 384 U. S. 460 .
I will not repeat here what I said there.

															I turn then to the second requirement, apart from the
voluntariness requirement, that the State must satisfy to establish
a waiver of Miranda rights. Besides being voluntary, Page 479 U. S. 188 the waiver must be knowing and intelligent. See Moran v.
Burbine, 475 U. S. 412 , 475 U. S. 421 (1986). We recently noted that

															"the waiver must have been made with a full awareness both of
the nature of the right being abandoned and the consequences of the
decision to abandon it." Ibid. The two requirements are independent:

															"Only if the 'totality of the circumstances surrounding the
interrogation' reveals both an uncoerced choice and the requisite level of comprehension may a court
properly conclude that the Miranda rights have been
waived." Ibid. (emphasis added).

															Since the Colorado Supreme Court found that Mr. Connelly was
"clearly" unable to make an "intelligent" decision, clearly its
judgment should be affirmed. The Court reverses the entire
judgment, however, without explaining how a "mistaken view of
voluntariness" could "taint" this independent justification for
suppressing the custodial confession, but leaving the Colorado
Supreme Court free on remand to reconsider other issues, not
inconsistent with the Court's opinion. Such would include, in my
view, whether the requirement of a knowing and intelligent waiver
was satisfied. See ante at 479 U. S. 171 ,
n. 4. Moreover, on the remand, today's holding does not, of course,
preclude a contrary resolution of this case based upon the State's
separate interpretation of its own Constitution. See South
Dakota v. Opperman, 428 U. S. 364 , 428 U. S. 396 (1976) (MARSHALL, J., dissenting).

															I dissent.

															[ Footnote 3/1 ] Cf. Bram v. United States, 168 U.
S. 532 , 168 U. S.
547 -548 (1897) (reviewing the "rule [of law] in England
at the time of the adoption of the Constitution and of the Fifth
Amendment" and citing W. Hawkins, Pleas of the Crown (6th ed.
1787): "[a] confession, therefore, whether made upon an official
examination or in discourse with private persons, which is
obtained from a defendant, either by the flattery of hope, or by
the impressions of fear, however slightly the emotions may be
implanted, . . . is not admissible evidence; for the law will not
suffer a prisoner to be made the deluded instrument of his own
conviction") (emphasis added).

															[ Footnote 3/2 ] E.g., Mincey v. Arizona, 437 U.
S. 385 , 437 U. S. 398 (1978) ("It is hard to imagine a situation less conducive to the
exercise of a rational intellect and a free will' than
Mincey's"); Greenwald v. Wisconsin, 390 U.
S. 519 , 390 U. S. 521 (1968) ("Considering the totality of these circumstances, we do not
think it credible that petitioner's statements were the product of
his free and rational choice"); Beecher v. Alabama, 389 U. S. 35 , 389 U. S. 37 (1967) ("Still in a `kind of slumber' from his last morphine
injection, feverish, and in intense pain, the petitioner signed the
written confessions thus prepared for him"); Davis v. North
Carolina, 384 U. S. 737 , 384 U. S. 742 (1966) ("His level of intelligence is such that it prompted the
comment by the court below, even while deciding against him on his
claim of involuntariness, that there is a moral question whether a
person of Davis' mentality should be executed"); Reck v.
Pate, 367 U. S. 433 , 367 U. S. 440 (1961) ("If [a defendant's will was overborne], the confession
cannot be deemed `the product of a rational intellect and a free
will"'); Culombe v. Connecticut, 367 U.
S. 568 , 367 U. S. 583 (1961) ("[A]n extrajudicial confession, if it was to be offered in
evidence against a man, must be the product of his own free
choice"); Payne v. Arkansas, 356 U.
S. 560 , 356 U. S. 567 (1958) (footnotes omitted) ("It seems obvious from the totality of
this course of conduct, and particularly the culminating threat of
mob violence, that the confession was coerced and did not
constitute an `expression of free choice"'); Ashcraft v.
Tennessee, 322 U. S. 143 , 322 U. S. 147 (1944) ("He was induced by the fear of violence at the hands of a
mob and by fear of the officers"). [ Footnote 3/3 ]

															Even if police knowledge of the defendant's insanity is required
to exclude an involuntary confession, the record supports a finding
of police knowledge in this case. The Court accepts the trial
court's finding of no police wrongdoing, since, in the trial
judge's view, none of the police officers knew that Mr. Connelly
was insane. Tr. 83-84. After plenary review of the record, see
Miller v. Fenton, 474 U. S. 104 , 474 U. S. 115 (1985), I conclude that this finding is clearly erroneous.

															When the defendant confessed to Officer Anderson, the officer's
first thought was that Mr. Connelly was a "crackpot." Tr. 8.
Today's Court describes Officer Anderson as "[u]nderstandably
bewildered." Ante at 479 U. S. 160 .
After giving Miranda warnings, the officer questioned the
defendant about whether he used drugs or alcohol. He also asked Mr.
Connelly if he had been treated for any mental disorders, and the
defendant responded that he had been treated in five different
mental hospitals. Tr. 14, 17. While this Court concludes that
"Detective Antuna perceived no indication whatsoever that
respondent was suffering from any kind of mental illness," ante at 479 U. S. 161 ,
the record indicates that Officer Anderson informed the detective
about the defendant's five hospitalizations in mental institutions.
Tr. 18. Thus, even under this Court's test requiring police
wrongdoing, the record indicates that the officers here had
sufficient knowledge about the defendant's mental incapacity to
render the confession "involuntary."

															[ Footnote 3/4 ]

															Prior to establishing this rule excluding all involuntary
confessions, we held the view that the Fifth Amendment, at bottom,
served as "a guarantee against conviction on inherently
untrustworthy evidence." Stein v. New York, 346 U.
S. 156 , 346 U. S. 192 (1953).

															[ Footnote 3/5 ]

															In deciding to hear this case, this Court took

															"the unprecedented step of rewriting a prosecutor's certiorari
petition for him, enabling him to seek reversal on a ground he did
not present himself." Colorado v. Connelly, 474 U.S. 1060, 1051 (1986)
(BRENNAN, J., dissenting from briefing order). The prosecutor
expressly limited his petition to this Court to the issue of the
suppression of the involuntary confession. Pet. for Cert. 16.
Despite this, the Court directed the parties to brief the question
of whether the defendant's mental condition rendered his waiver of Miranda rights ineffective.

															In addition, the Court today decides yet another issue neither
raised nor briefed by either party. It holds that the government
may establish the defendant's voluntary waiver of his Miranda rights by only a preponderance of the
evidence.

															The Court also requires the state court to readdress a separate
and independent basis for finding the waiver invalid. Quite apart
from finding the Miranda waiver involuntary, the Colorado
Supreme Court found that it was not an intelligent and knowing
decision. Although unaffected by this Court's new analysis of the
voluntariness requirement, the state court is forced to reconsider
this independent justification for its decision. Ante at 479 U. S. 171 ,
n. 4. Such actions reinforce the Court's "appearance of being not
merely the champion, but actually an arm of the prosecution." 474
U.S. at 1052.

															[ Footnote 3/6 ]

															Contrary to this Court's assertion, nowhere does the Lego Court state that "the voluntariness determination . .
. is designed to determine the presence of police coercion." Ante at 479 U. S. 168 . See Lego v. Twomey. The Lego Court did not
distinguish coercion by police from coercion exerted from other
sources.

															[ Footnote 3/7 ]

															Furthermore, Lego established only that proof beyond a
reasonable doubt was an inappropriately high standard. The decision
has been criticized for never demonstrating affirmatively that the
choice of the preponderance-of-the-evidence standard was more
appropriate than the use of the clear-and-convincing-evidence
standard. See Saltzburg, Standards of Proof and
Preliminary Questions of Fact, 27 Stan. L. Rev. 271, 278 (1975).
Here, the Colorado Supreme Court chose to apply the
clear-and-convincing-evidence standard, and the Lego analysis cannot justify rejection of this intermediate
standard.