G.O.[ing] Away from McCarther: Kansas’s Reliability Standard as a Test for the Voluntariness of Confessions is Inapposite to the Fourteenth Amendment Due Process Clause.

State v. G.O., No. 124,676, 2024 Kan. LEXIS 23 (Kan. Mar. 1, 2024)

Author: Clayton Anderson, Staff Editor

Issue:  Does Kan. Stat. Ann. § 60-460(f)(2)(B)’s hearsay exception—or its reliability standard—apply when courts decide whether a defendant’s confession to police was involuntary?

Answer:  No.  The Fourteenth Amendment Due Process Clause bars an involuntary confession from being admitted as evidence against a defendant, regardless of its reliability.

Facts:  G.O. moved to suppress statements he made during a police interview about alleged molestation of his minor stepsister because “his waiver of rights and his confession were not knowing and voluntary.”  At the interview—shortly before Mirandizing G.O.—the detective told G.O. that “you are not under arrest. You are not going to be under arrest.”  The detective also told G.O. that “[t]his isn’t about getting people in trouble” and repeatedly told G.O. “that the purpose of the interview was to help his stepsister.”  The district court granted G.O.’s motion to suppress, but the court of appeals reversed.

Discussion: The Kansas Supreme Court held that Kan. Stat. Ann. § 60-460(f)(2)(B) and its reliability standard do not apply when courts engage in a Fourteenth Amendment Due Process Clause analysis to determine the voluntariness of a confession.[i]

The court of appeals had relied on Kansas caselaw applying Kan. Stat. Ann. § 60-460(f)(2)(B) that “require[d] that a police officer’s promise of leniency” be likely to make a defendant’s confession unreliable to bar admission of the defendant’s statement.  The court of appeals declined to exclude G.O.’s confession because it found no evidence that G.O. confessed falsely as a result of the detective’s statements that G.O. would not be arrested or get into trouble.  The Kansas Supreme Court reversed, finding that Kansas cases using the reliability standard were inconsistent with the United States Supreme Court’s ruling in Rogers v. Richmond, which held that an evidentiary standard which takes “into account the circumstance of probable truth or falsity . . . is not a permissible standard under the Due Process Clause.”  Accordingly, the Kansas Supreme Court overruled State v. McCarther, State v. Garcia , and other cases applying Kan. Stat. Ann. § 60-460(f)(2)(B) “for any purpose other than admission of hearsay evidence.”

Applying its ruling, the Kansas Supreme Court ultimately affirmed the district court’s decision to suppress G.O.’s statements because the detective’s statements that G.O. would not be arrested or get into trouble made G.O.’s statements involuntary.

Key Authorities: Kan. Stat. Ann. § 60-460(f)(2)(B) (Supp. 2022) (preventing admission of a confession if a public official induced the defendant to confess by “threats or promises” likely to result in a false confession); State v. McCarther, 416 P.2d 290, 295–96 (Kan. 1966) (describing Kan. Stat. Ann. § 60-460(f)(2)(B) before holding the trial court erred in admitting an involuntary confession), overruled by State v. G.O., No. 124,676, 2024 Kan. LEXIS 23 (Kan. Mar. 1, 2024); State v. Garcia, 301 P.3d 658, 663–64, 667–68 (Kan. 2013) (applying Kan. Stat. Ann. § 60-460(f)(2)(B) when finding that a confession was involuntary), overruled by State v. G.O., No. 124,676, 2024 Kan. LEXIS 23 (Kan. Mar. 1, 2024); Rogers v. Richmond, 365 U.S. 534, 540–41 (1961) (explaining that involuntary confessions are inadmissible not because they “are unlikely to be true,” but “because the methods used to extract them offend an underlying principle . . . of our criminal law.”).

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[i] Although the Kansas Supreme Court’s analysis focused on the Fourteenth Amendment, it also held that Kan. Stat. Ann. § 60-460(f)(2)(B) does not apply to analyses of confessions under the Fifth Amendment.