fifth-amendment
Suppose an effective truth serum existed. Could defendants in the following situations have their confessions ruled inadmissable?
<p>Suppose a <a href="https://www.youtube.com/watch?v=6DhW4NEceBs" rel="noreferrer">"Hollywood style" truth serum</a> existed, whereby if a person is given the serum, that person is compelled to truthfully answer any question put to them.</p>

<p>The following facts are true in all of the scenarios:</p>

<ul>
<li>Clyde Criminal commits a crime</li>
<li>Victoria Vigilante catches him in the act, injects him with truth serum, and leaves him for the police</li>
<li>Victoria Vigilante leaves, Officer Olivia arrives a few minutes later</li>
</ul>

<p>Clyde's best bet is to exercise his right to remain silent until the serum wears off. <strong>But what would be the value to the prosecutor of Clyde's confession if he confessed under these various circumstances:</strong></p>

<ol>
<li>Before Olivia speaks, Clyde confesses to the crime.</li>
<li>After Olivia reads Clyde his Miranda warning, but without being asked any questions, Clyde confesses.</li>
<li>After the Miranda warning, Olivia asks Clyde "What happened?".  Clyde confesses.</li>
<li>After the Miranda warning, Olivia asks Clyde "What happened?". Clyde says "I would prefer to remain silent, but I can't stop myself from telling you..." Clyde then confesses.</li>
<li>Before Olivia arrives, Victoria questions Clyde and records his confession. Victoria then leaves Clyde and the recording for Olivia to find.</li>
</ol>

<p><em>Miranda</em> rights do not attach until the suspect is subject to custodial interrogation. "Custody" means that the suspect reasonably believes that he is not free to leave the conversation. "Interrogation" means that the officer is engaging in direct questioning or other conduct that would reasonably be expected to elicit a response.</p>

<p>A suspect is free to waive his <em>Miranda</em> rights and begin speaking without a lawyer, but a waiver must be knowing, intelligent and voluntary. "Voluntary" means that the waiver is obtained without coercion (torture, threats or promises) <em>by the government</em>.</p>

<p>None of the five scenarios indicate that Clyde ever believes he is in custody, so he has no <em>Miranda</em> rights in any of them, making his confession admissible in all of them. But to play it out further, let's assume that Officer Olivia arrives and immediately slaps handcuffs on Clyde:</p>

<ol>
<li>No interrogation, no <em>Miranda</em> rights. The confession is admissible.</li>
<li>No interrogation, no <em>Miranda</em> rights. The confession is admissible.</li>
<li>Miranda rights attached at the beginning of questioning. Clyde waived by confessing. Reading the <em>Miranda</em> rights established that the waiver was knowing. We don't have any facts suggesting the waiver was not intelligent. The waiver was not obtained by <em>government</em> coercion, so it was voluntary. The waiver was effective, so the confession is admissible.</li>
<li>Same as 3.</li>
<li>No interrogation, no <em>Miranda</em> rights. The confession is admissible.</li>
</ol>

<p>The key thing to keep in mind here is that the purpose of the Fifth Amendment right against self-incrimination was to avoid misconduct by the government, and it has generally been implemented only to that end.</p>

<p>The key case here is <a href="https://supreme.justia.com/cases/federal/us/479/157/case.html" rel="noreferrer"><em>Colorado v. Connelly</em>, 479 U.S. 157 (1986)</a>, which involved a guy who approached a police officer and asked to talk about a murder he had committed. The officer Mirandized him, and he told them all about the murder and where he buried the body. It turned out that he was a chronic schizophrenic and was going through a psychotic break at the time of the confession, which he had only offered because "God's voice" told him to.</p>

<p>As with your truth serum scenario, the question became whether the <em>Miranda</em> waiver satisfied the voluntariness requirement. The Colorado Supreme Court held that "capacity for rational judgment and free choice may be overborne as much by certain forms of severe mental illness as by external pressure." But the U.S. Supreme Court reversed, holding that neither the defendant's due-process rights nor his right against self-incrimination are offended by non-governmental influences, even when they undercut the defendant's free will.</p>

<p>Since then, other courts have relied on Connelly to hold that voluntariness was not defeated by:</p>

<ul>
<li>a suspect's flu, hangover, hunger, or exhaustion, <a href="https://law.justia.com/cases/federal/appellate-courts/F3/51/283/618096/" rel="noreferrer"><em>U.S. v. Elwood</em>, 51 F.3d 283 (9th Cir. 1995)</a>; </li>
<li>a suspect's heroin use, <a href="https://law.justia.com/cases/federal/appellate-courts/F3/248/1205/550678/" rel="noreferrer"><em>Elliott v. Williams</em>, 248 F.3d 1205, 1213 (10th Cir. 2001)</a>; </li>
<li>a suspect's heroin withdrawal, <a href="https://casetext.com/case/us-v-kelley-56" rel="noreferrer"><em>U.S. v. Kelley</em>, 953 F.2d 562, 565 (9th Cir. 1992)</a>; </li>
<li>a suspect's orders from his father, <a href="https://law.justia.com/cases/federal/appellate-courts/F2/844/791/79458/" rel="noreferrer"><em>N. Mariana Islands v. Doe</em>, 844 F.2d 791 (9th Cir. 1988)</a>; or </li>
<li>a suspect's unusual susceptibility to suggestion or intimidation, <a href="https://www.leagle.com/decision/19931984983f2d100111813" rel="noreferrer"><em>U.S. v. Guerro</em>, 983 F.2d 1001, 1004 (10th Cir. 1993)</a>.</li>
</ul>

<p><strong>tl;dr:</strong> Because the truth serum was not administered by the government, the confession is admissible in all five scenarios.</p>

<p>Contrary to the other answers, we cannot be certain, although the odds favor admissibility. It is clearly established that as long as the government does not receive illegally-obtained evidence with dirty hands, the exclusionary rule does not apply: see <a href="https://supreme.justia.com/cases/federal/us/256/465/case.html" rel="nofollow noreferrer">Burdeau v. McDowell</a>, 256 U.S. 465:</p>

<blockquote>
  <p>The Fourth Amendment gives protection against unlawful searches and
  seizures, and, as shown in the previous cases, its protection applies
  to governmental action</p>
</blockquote>

<p>(That case was about stuff taken illegally by non-government individuals). The court also mentions the 5th Amendment, but does not specifically retrict the rule to confessions arising from non-governmental action:</p>

<blockquote>
  <p>The Fifth Amendment, as its terms import, is intended to secure the
  citizen from compulsory testimony against himself. It protects from
  extorted confessions, or examinations in court proceedings by
  compulsory methods.</p>
</blockquote>

<p>Connelly involves the situation where a person is not "in his right mind", and related cases indicate that the exclusionary rule applies to confessions obtained when the defendant is tired, etc. But these cases do not involve <em>compulsion</em>.</p>

<p>A first test would be a gunpoint confession, where a non-government actor forced a person to confess -- would that be admissible? I don't know of any case that doesn't involve government agents having dirty hands. If it is decided that non-government gunpoint confessions are admissible (following Burdeau), it still has to be determined whether such a drug, or the Lasso of Hestia, would be found to be "compulsion".</p>

<p>Since the exclusionary rule is contracting, not expanding, it is likely that non-government gunpoint confessions will be allowed, but we don't know for sure.</p>

<p>If such a "hollywood-style" truth drug existed and had been established to be reliable I am sure that there would be either new legislation or new court cases on just when and how it could be used, and when statements made under its influence would be admissible. But who knows what those would be. They probably would not be exactly the same as current case law.</p>
