It turned out that Sarivola was no friend but a paid FBI informant whose testimony led an Arizona jury to sentence Fulminante to death. Last week a sharply divided Supreme Court overturned that verdict, ruling that the government had used Fulminante’s fear of physical harm to unlawfully coerce a confession.
That was good news for Fulminante. But in a much more significant portion of the decision, the court ruled that use of an illegal coerced confession does not automatically invalidate a conviction. In a 5-4 decision written by Chief Justice William Rehnquist, the court said there may be so much other evidence of guilt that the use of an involuntary confession could be considered “harmless error”–a minor flaw in an other wise fair trial. The ruling may give police more latitude in questioning suspects and prosecutors more confidence in using dubious confessions. “Before this case prosecutors knew that they risked blowing their whole case if they took a chance with a bad confession,” says University of Michigan law professor Yale Kamisar. “Now they can take that chance.
Led by Justice Byron White, the dissenters argued that permitting an involuntary confession to be used always violates a defendant’s right to due process of law. The majority opinion, wrote White, ignores decades of Supreme Court precedent and “is inconsistent with the thesis that ours is not an inquisitorial system of criminal justice.” Rehnquist’s decision will oblige appellate judges to decide whether a coerced confession was decisive in a jury’s verdict. That’s a difficult task, requiring them to make assumptions about lawyers’ strategies and jurors’ dispositions that can never be verified. As a matter of law, then, the harm or harmlessness of what everyone agrees is an “error” will be in the eyes of the beholder.
