Abstract

In Jackson v. Denno, the United States Supreme Court held that a defendant is entitled to an adequate evidentiary hearing concerning the voluntariness of his confession. However, the Jackson Court failed to discuss the burden of proof that must be satisfied in the voluntariness hearing. As a result, federal and state courts adopted a variety of conflicting standards in the years following Jackson. In Lego v. Twomey, the Court resolved the conflict among jurisdictions when it held that the prosecution must prove by a preponderence of the evidence that a confession was voluntary.

In Colorado v. Connelly, the Court expanded on its earlier holding in Lego by requiring that the state must similarly prove a waiver of Miranda rights by only a preponderance of the evidence. Although the Court noted that the states are free to establish higher standards of proof under their own constitutions, the effect of the Court's ruling in Connelly is that all preliminary questions of fact involving an alleged violation of fourth and fifth amendment rights under the federal constitution are determined by the preponderance standard.

This Note will examine alternative standards of proof along with the difficulty factfinders experience when attempting to distinguish between these standards. It will then look at the Supreme Court's gradual progression to a single standard and Justice Brennan's continued opposition to the erosion of constitutional protections resulting from the adoption of such a standard.

The discussion will then turn to a review of decisions of individual states that have adopted standards higher than required by the United States Constitution. Finally, this Note will discuss an alternative approach to the selection of standards, which balances the purpose of the exclusionary rule of evidence with the cost of raising the standard, and will suggest a solution to the problems identified.

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