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State v. Rees, dissenting opinion.

SAUFLEY, J., with whom CLIFFORD, J. joins, dissenting.

	[¶10]  I respectfully dissent.
	[¶11] In its holding today, the Court has concluded that,
notwithstanding the absence of incarceration, compulsion, coercion, or
police overreaching, no out-of-court statement of a defendant may be used
against that defendant unless the State proves beyond a reasonable doubt
that the statement was voluntary.  In so holding, the court has completed its
shift in focus, begun in Caouette, from the actions of the State to the internal
motivations of the defendant.  With this holding, the privilege against self-
incrimination found in the Fifth Amendment, mirrored in article I, section 6
of the Maine Constitution, has been stretched beyond its historical
foundations and the fundamental purpose of the Due Process Clause-to
assure governmental fair play-has been lost.
	[¶12]  The Court's analysis goes awry for several reasons.  First, it blurs
the distinctions between the privilege against self-incrimination, guaranteed
by the Fifth Amendment to the United States Constitution and article I,
section 6 of the Maine Constitution, and the protections provided in the Due
Process Clause of the Fourteenth Amendment to the United States
Constitution and its analog in article I, section 6-A of the Maine Constitution. 
Second, it fails to follow the holding of the United States Supreme Court on
the very point at issue.  And finally, it sets in stone a precedent which will
have an effect on the prosecution of criminal cases that was never intended
by the framers of the Maine or federal constitutions and is unnecessary to
the protection of the fundamental rights of defendants in criminal matters.
	[¶13]  I would conclude that when a defendant such as Rees
challenges the admission of his out-of-court statement, the following analysis
1.the court must look to the privilege against self-
incrimination to determine whether the statement was
compelled by an external force.  If so, the statement will
not be admissible over an assertion of the privilege.  If the
court finds that statement has not been compelled,

2.the court must next look to principles of due process to
determine whether the admission of the statements in
light of the actions of the State would violate concepts of
fundamental fairness.  If principles of due process would
not result in the exclusion of the statement,

3.the court must determine whether any of the Rules of
Evidence would require the exclusion of the statements. 
In particular, if the circumstances surrounding the making
of the statement render it so inherently unreliable that it
is not probative, it will not be admissible for the truth of
the matters asserted therein, and

4.finally, if the court determines that the statement is
inadmissible in the prosecution's case-in-chief, the basis
for its exclusion will have a bearing on whether the
statement is admissible at trial for any other purpose.{3}

	[¶14]  Because it is not clear whether the Court today rests its
decision entirely on the defendant's privilege against self-incrimination or
on a combination of privilege and due process concepts, I address the two
areas of analysis separately.  I will also address the Court's mistaken
conclusion that its holding today is required by our decisions in State v.
Caouette, 446 A.2d 1120 (Me. 1982), and State v. Collins, 297 A.2d 620 (Me.
	[¶15]  Preliminarily, I disagree with the Court's assertion that it is
bound by principles of stare decisis to reach the conclusion it has
announced today.  First, I do not believe we have squarely addressed the
issue presented here.  Second, even if the rule in Caouette does apply in the
present case, we have made it clear
that where the authorities supporting the prior rule have "been
drastically eroded, [and] . . . the suppositions on which it rested
are disapproved in the better-considered recent cases and in
authoritative scholarly writings, and . . . the holding of the [prior]
case is counterproductive" to its purposes, the situation is
appropriate for legal change by the Court's decision.

Myrick v. James, 444 A.2d 987, 998-99 (Me. 1982) (quoting Black v.
Solmitz, 409 A.2d 634, 639 (1979)).
	[¶16]  Relying on Caouette, which drew its holding from Collins, the
Court concludes that the matter has been finally decided in Maine.  I would
conclude otherwise.
	[¶17]  The holding in Caouette expressly addressed itself to a
distraught, physically ill, and incarcerated defendant.  There, the Court,
reviewing decisions from other jurisdictions, noted that "other jurisdictions
have explicitly considered the impact of the physical and mental condition
of the defendant and the circumstances usually attending incarceration, both
in the presence and absence of police interrogation.  Such factors have been
found determinative in deciding whether a statement was the product of
free will and rational intellect."  Caouette, 446 A.2d at 1123.  In stark
contrast to Caouette, Rees was not incarcerated.  He was neither restrained
in any way by the officer, nor was he at a police station or in a police vehicle. 
Rees was in no way in the control or at the mercy of the officer.  Statements
taken from an individual who has lost his freedom, and who is in the
complete control of law enforcement and the penal system, should be, and
are, accorded greater protections than statements of an individual who is
not incarcerated.{4}  Such protections, however, do not extend to the facts of
the case at hand.
	[¶18]  Moreover, Caouette was decided before the United States
Supreme Court had an opportunity to address the admission of statements
similar to the one at bar.  We did not, in Caouette, engage in the historical
review necessary to a full resolution of this important issue, and, at least
ostensibly, we purported to follow the Supreme Court's analysis.  I would
therefore conclude that Caouette is not binding precedent on the matter
before the Court today. 
	[¶19]  Finally, even if Caouette can be stretched to apply to the issue
before the Court, I would not follow the holding that the Court draws from
its language.  It is not clear what the precise holding of Caouette is.  To the
extent that the holding of Caouette is that a statement that is generated
through no external force (regardless of who may be the actor) may be
excluded as violating the privilege against self-incrimination, it is beyond any
prior declaration of law made by this Court and is not founded on any sound
constitutional concept.  On that basis, I would overrule Caouette as a
decision that has lost its persuasive authority in light of a better decided
Supreme Court decision, and as one that runs counter to important societal
	[¶20]  The historical roots of the prohibition against the admission at
trial of a defendant's confession do not necessarily comprise a linear and
coherent set of rules.  "[I]t has been said that so great was the perplexity
resulting from an attempt to reconcile the authorities that it was manifest
that . . . even the legal rule to be applied was involved in obscurity and
confusion."  Bram v. United States, 168 U.S. 532, 549 (1897).  These words,
which Justice White (writing for the Court) dismissed as a "misconception"
over a century ago, nevertheless foreshadowed the current state of the law
regarding the admissibility of an out-of-court statement or confession by a
	[¶21]  The recent confusion appears to stem, at least in part, from a
failure to delineate the distinctions between the nature of the exclusionary
rule applied in due process cases and that embodied by the privilege against
self-incrimination.  As will be seen, these exclusionary rules are not
identical, and accordingly, it is not proper to adopt wholesale the policies
that the privilege seeks to effect into a due process analysis.

A.  Fifth Amendment Privilege Against Self-Incrimination

	[¶22]  The Fifth Amendment provides that "no person . . . shall be
compelled in any criminal case to be a witness against himself."  U.S. Const.
amend V.  The Maine Constitution contains a similar provision:  "In all
criminal prosecutions, the accused . . . shall not be compelled to furnish or
give evidence against himself."  Me. Const. art. I, § 6.  In order to
understand the reach of the privilege against self-incrimination, a review of
the historical application of the federal and state provisions is helpful.{5}  
	[¶23]  It is commonly understood that the privilege finds its roots in
medieval and European Canon law.  As the Supreme Court stated in Brown v.
Walker, 161 U.S. 591 (1896):
The maxim nemo tenetur seipsum accusare [no one is bound to
accuse himself] had its origin in a protest against the
inquisitorial and manifestly unjust methods of interrogating
accused persons . . . .  While the admissions or confessions of the
prisoner, when voluntarily and freely made, have always ranked
high in the scale of incriminating evidence, if an accused person
be asked to explain his apparent connection with a crime under
investigation, the ease with which the questions put to him may
assume an inquisitorial character, the temptation to press the
witness unduly, to browbeat him if he be timid or reluctant, to
push him into a corner, and to entrap him into fatal
contradictions, . . . made the system so odious as to give rise to a
demand for its total abolition. . . .  So deeply did the iniquities of
the ancient system impress themselves upon the minds of the
American colonists that the States, with one accord, made a
denial of the right to question an accused person a part of their
fundamental law . . . .

Id. at 596-97. 
	[¶24]  Thus, to deter the "manifestly unjust methods of interrogating
accused persons" the Fifth Amendment provides those accused with a
privilege to prevent forced in-court testimony and to prevent the admission
of forced out-of-court statements.  
	[¶25]  Early Supreme Court decisions regarding the application of the
Fifth Amendment to confessions reflected this understanding of the
fundamental wrong that the privilege against self-incrimination sought to
prevent.  The foremost pronouncement on the Fifth Amendment privilege
remains Counselman v. Hitchcock, 142 U.S. 547 (1892), overruled in part
on other grounds by Kastigar v. United States, 406 U.S. 441, 449-62 (1972),
an early case in which the Supreme Court examined the scope of the
privilege.  Although subsequently limited,{6} Counselman established that the
federal privilege is applicable when there is compulsion in the form of a
requirement that one testify before a grand jury.  See id. at 562.
	[¶26]  In 1897, the Court first applied the privilege to prevent the use
of a confession.  See Bram v. United States, 168 U.S. 532, 549 (1897).  In
that case, Bram was ordered to strip, was searched, and was then
interrogated, all by a Halifax, Nova Scotia, detective.  See id. at 538.  During
the course of the interrogation, Bram was confronted with the statement of
another man who claimed that Bram had murdered a shipmate, the
suggestion being that if Bram confessed it would be better for him.  See id.
at 539.  The detective told Bram that he was convinced Bram was guilty, but
that he also suspected Bram had an accomplice; accordingly, the detective
intimated that Bram should confess and name his accomplice so as to avoid
having "the blame of this horrible crime on your own shoulders."  Id.  The
Court found that the statements Bram gave, in that situation, were
compelled in violation of his Fifth Amendment privilege.  The Court
described the rule as follows:
[It] is not that, in order to render a statement admissible, the
proof must be adequate to establish that the particular
communications contained in a statement were voluntarily
made, but it must be sufficient to establish that the making of
the statement was voluntary; that is to say, that, from the causes
which the law treats as legally sufficient to engender in the mind
of the accused the hope or fear in respect to the crime charged,
the accused was not involuntarily impelled to make a statement,
when but for the improper influences he would have remained

Id. at 549.  The Court thus drew a distinction between the fact that a
statement was made and the "particular communications" therein.  What
was required was that "the making of the statement was voluntary," which
the Court understood involved the absence of external "improper
influences."  In Bram, these influences were that
Bram had been brought from confinement to the office of the
detective, and there, when alone with him, in a foreign land,
while he was in the act of being stripped, or had been stripped,
of his clothing, was interrogated by the officer, who was thus,
while putting the questions and receiving answers thereto,
exercising complete authority and control over the person he
was interrogating.

Id. at 563 (emphasis added).  What was suspect, then, was an external force
that tended to compel a statement from an accused.  Cases after Bram are
consistent with this rule. 
There have been sharply differing views within the Court as to
the ultimate reach of the Fifth Amendment [privilege] . . . .  But
since at least as long ago as 1807, when Chief Justice Marshall
first gave attention to the matter in the trial of Aaron Burr, all
have agreed that a necessary element of compulsory self-
incrimination is some kind of compulsion.

Hoffa v. United States, 385 U.S. 293, 303-04 (1966); see also Ziang Sung
Wan v. United States, 266 U.S. 1, 14-15 (1924); Hardy v. United States, 186
U.S. 224, 229 (1902).
	[¶27]  The constitutional doctrine surrounding the privilege under the
Maine Constitution followed similar reasoning.  An early Maine case involving
the privilege is State v. Gilman, 51 Me. 206 (1862).  In Gilman, the Court,
relying partly on article I, section 6 and on the common law privilege
against self-incrimination, noted:
Great care should undoubtedly be taken to protect the rights of
the accused.  His secret should not be extorted from him by the
exercise of any inquisitorial power.  He should be fully informed
of his legal rights, when called upon or admitted to testify as a
witness in a matter in which his guilt is involved.  No officious
party should be permitted to extract confessions from him, by
operating upon his hopes or his fears.  But his voluntary
statements, declarations or confessions, like his voluntary
actions, wherever or whenever made, are legitimate and proper
matters for judicial consideration, so far as they bear upon and
tend to illustrate the question of guilt or innocence.

Id. at 225.  Like the Supreme Court in Bram, it is clear that what is
contemplated here is an external coercive force.  See Gilman, 51 Me. at 223. 
Indeed, the Gilman Court used historical language in emphasizing that a
confession may not be used against the defendant if it was "extorted from
him by the use of inquisitional power."
	[¶28]  Until very recently, we have consistently followed this line of
reasoning and have adhered to the analysis undertaken by the United States
Supreme Court.  In Gendron v. Burnham, 146 Me. 387, 82 A.2d 773 (1951),
we reaffirmed the wisdom of reliance and coordination with established
federal principles on point.  There, we recognized that the privilege under
the Fifth Amendment and that under article I, section 6 "are so similar in
nature and identical in purpose that precedent with respect to the
construction of the one may well serve as precedent for the construction of
the other."  Id. at 395, 82 A.2d at 780.  In Duguay v. State, 309 A.2d 234
(Me. 1973) (per curiam), a prisoner petitioned for a writ of habeas corpus,
claiming that statement had been admitted against him in violation of the
privilege.  Id. at 235.  Duguay had gone to the police regarding a shooting at
his apartment; there, he confessed after having been advised that whatever
he said could be used against him.{7}  See id. at 239.  Duguay was subject to no
"physical, mental or psychological compulsion nor was he offered any
inducement to make a statement."  Id.  We found no violation of the
privilege, expressly distinguishing the facts in the case from those in a
number of Supreme Court cases.{8}  Id.  
	[¶29]  Thus, only with Collins and Caouette did we stray from the path
laid by the Supreme Court with regard to the privilege against self-
incrimination.  In Collins, we parted ways with the majority of the Supreme
Court in Lego v. Twomey, 404 U.S. 477 (1972), and adopted the approach
advocated by the minority in that case, see Collins, 297 A.2d at 625-27,
adopting the requirement that the State prove beyond a reasonable doubt
that a confession by a criminal defendant was voluntary.  The placement of a
heavier burden on the State, urged by the dissent in Lego, was anticipated by
the majority:  "Of course, the States are free, pursuant to their own law, to
adopt a higher standard.  They may indeed differ as to the appropriate
resolution of the values they find at stake."  Lego, 404 U.S. at 489.  We
accepted that invitation in Collins.
We agree with the observation of Mr. Justice Brennan in his
dissent . . . [and] decide, therefore, that to confirm and preserve
the value reflected in the constitutional privilege against self-
incrimination we must minimize the risks of allowing legal
effectiveness to 'non-voluntary', or 'involuntary', testimonial self-
condemnation even at the expense of producing a loss of
evidence which might have probative value; such was the price
that our society had chosen to pay when it conferred
constitutional protection upon the privilege against self-

Collins, 297 A.2d at 627.  Thus, Collins established that the protections
guaranteed by the Fifth Amendment and article I, section 6 demanded the
highest level of proof by the State.  In no way, however, did Collins depart
from the substantive underpinnings of confession law established through
Supreme Court precedent.
	[¶30]  In Caouette, we began to move away from an established
substantive understanding of the protections provided by both the state and
federal constitutions.  After citing a number of then-recent Supreme Court
cases, we concluded:
It must be remembered that the privilege exists in this case by
virtue of the Maine Constitution.  The Fifth Amendment is a
limitation upon the federal government and has no direct
reference to state action except to the extent incorporated as a
requirement of due process under the Fourteenth Amendment. 
The maximum statement of the substantive content of the
privilege and the requirements of voluntariness must be decided
by this Court-as a matter of Maine law.

Caouette, 446 A.2d at 1122.  I do not dispute the Court's conclusion that we
are free to interpret the Maine Constitution, specifically article I, section 6,
in a manner that provides greater protection than that which the United
States Supreme Court finds within the Fifth Amendment privilege.  We did
so in Collins by placing a more stringent burden of proof on the State when
it seeks to admit a defendant's out-of-court statements against him. 
Nothing, however, in the history of Maine's Constitution provides a basis for
the substantive departure the Court makes today.  In the absence of
compulsion, coercion, or other misconduct by the State or third parties that
has induced an otherwise unwilling speaker to speak against himself, article
I, section 6 has historically had no effect on the use of a defendant's out-of-
court statements.  The rule established by the Court today reads into the
Maine Constitution that which does not exist within its terms.
	[¶31]  Moreover, we have consistently interpreted fundamentally
similar provisions of our constitution coextensively with their federal
counterparts.  When we have chosen to depart from this principle, we have
"'traditionally exercised great restraint'" in doing so.{9}  Bagley v. Raymond
Sch. Dept., 1999 ME 60, ¶ 13, 728 A.2d 127, 132 (quoting State v. Buzzell,
617 A.2d 1016, 1018 n.4 (Me. 1992).  Indeed, the Court has recently
reaffirmed its commitment to maintaining a coextensive application of the
Fifth Amendment privilege and the privilege guaranteed by article I, section
6.  See State v. Eastman, 1997 ME 39, ¶ 12, 691 A.2d 179, 183.  No reason
has been suggested for departing from such a long line of precedent today.
	[¶32] I would therefore apply the Fifth Amendment privilege in this
case just as it has been applied for decades.  The question thus presented is
whether the confession was obtained through any kind of external
compulsion.  In its order in the present case, the motion justice noted "that
this ruling makes no finding of improper or incorrect conduct upon the
investigating officers."  Rees was not incarcerated.  He appeared coherent
and contrite.  He was neither threatened physically nor abused emotionally. 
He was given repeated Miranda warnings.  The only evidence relied on by
the defendant in support of his motion to suppress was his diagnosis of a
type of dementia.{10}  In short, the court appears to have found that Rees was
not subject to "improper influence," see Bram, 168 U.S. at 549, nor was a
confession "extracted" from him, see Gilman, 51 Me. at 225.{11}  Thus, the
privilege against self-incrimination articulated in article I, section 6 of the
Maine Constitution is not applicable to the determination as to whether the
statements made by Rees may be admitted against him at trial.

B.  Due Process

	[¶33]  I turn then to the protections found in the due process clauses
of the Maine and federal constitutions.  "No State shall . . . deprive any
person of life, liberty, or property, without due process of law . . . ."  U.S.
Const. amend XIV.  Similarly, the Maine Constitution provides:  "No person
shall be deprived of life, liberty or property without due process of law . . . ." 
Me. Const. art. I, § 6-A.
	[¶34]  The application of due process considerations in confession
challenges did not arise until well into the twentieth century.  See Brown v.
Mississippi, 297 U.S. 278, 286 (1936).  Four years after we issued our
opinion in Caouette, the Supreme Court decided Colorado v. Connelly, 479
U.S. 157 (1986), in which the Court reviewed the history of its reliance on
the Due Process Clause of the Fourteenth Amendment to prohibit the
admission in state courts of confessions that were the product of coercive
police conduct, noting that its reliance on the Fourteenth Amendment had
begun at a time when the Fifth Amendment had not yet been held to apply
to the states.  See id. at 163 (citing Brown v. Mississippi, 297 U.S. at 286). 
The intermingling of the conceptual bases for the suppression of confessions
did not cease, however, when the Court concluded that the Fifth
Amendment did apply to the states.  Rather, the Court retained its focus on
the Fourteenth Amendment "even after holding, in Malloy v. Hogan, 378
U.S. 1 (1964), that the Fifth Amendment privilege against self-incrimination
applies to the States."  Connelly, 479 U.S. at 163 (citations omitted). 
	[¶35]  Between Malloy and Connelly, the Supreme Court continued to
apply both the privilege against self-incrimination and due process
protections to compulsion cases.  It appears that the Court tended to apply
the law of the privilege or of due process in conformity with the prevailing
theories of factually similar cases.  For example, in Mincey v. Arizona, 437
U.S. 385 (1978), the Court, tracking similar reasoning in Brown v.
Mississippi, held on due process grounds that the defendant's statements,
given to the police, may not be used against him when defendant "was
weakened by pain and shock, isolated from family, friends, and legal
counsel, and barely conscious, and his will was simply overborne."  Id. at
401-02; see also Culombe v. Connecticut, 367 U.S. 568, 602 (1961) (opinion
of Frankfurter, J.).  Because Mincey was decided after the Fifth Amendment
privilege against self-incrimination had been applied to the states in Malloy,
it is not at all clear why Mincey could not have been decided on Fifth
Amendment grounds.  Compare Mincey, 437 U.S. at 401-02, with Bram v.
United States, 168 U.S. 532, 563 (1897), and Ziang Sung Wan v. United
States, 266 U.S. 1, 14-15 (1924).  
	[¶36]  It is clear now, however, that the Fourteenth Amendment has
come to have two similar but separate purposes in addressing the out-of-
court statements of a defendant.  Preliminarily, it is the vehicle through
which the Fifth Amendment has been applied to the states.  Perhaps more
importantly, it is the source of separate substantive rights.  Conceptually,
these substantive rights are similar, but not identical, to those guaranteed by
the Fifth Amendment.  Where the Fifth Amendment analysis seeks to
determine whether the defendant's confession was compelled, a due
process analysis asks "whether the State has obtained the confession in a
manner that comports with due process." Miller v. Fenton, 474 U.S. 104,
110 (1985).  The focus here, a focus that may provide broader protections
than the Fifth Amendment, is not limited to the presence or absence of
compulsion, but rather addresses the totality of the State's actions in
obtaining the confession.  It is these separate substantive rights that I
address herein.
	[¶37]  In determining whether the confession was in fact obtained in a
manner that comports with our notions of due process and fair play, the
focus must be on the actions of the State.  Throughout the cases in which
the Supreme Court has addressed the admissibility of a statement or
confession using due process principles, it has maintained its "focus upon
the crucial element of police overreaching." Connelly, 479 U.S. at 163. 
Because the Due Process Clause protects each citizen from the State's
actions depriving that person of "life, liberty, or property" without due
process of law, those protections are not implicated in the absence of state
conduct affecting the citizen's rights.  Consequently, as the Court announced
unequivocally in Connelly, "[a]bsent 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 the law."  Id. at 164.
	[¶38]  Our own decisions addressing the due process clauses of the
state and federal constitutions have similarly required state action.  "This
Court has long adhered to the principle that the Maine Constitution and the
Constitution of the United States are declarative of identical concepts of due
process."  Penobscot Area Hous. Dev. Corp. v. City of Brewer, 434 A.2d 14,
24 n.9 (Me. 1981) (citing Pool Beach Ass'n v. City of Biddeford, 328 A.2d
131, 135 n.6 (Me. 1974); Michaud v. City of Bangor, 159 Me. 491, 493, 196
A.2d 106, 108 (1963); Jordan v. Gaines, 136 Me. 291, 294-95, 8 A.2d 585,
587 (1939)); see also In re Jo-Nell C., 493 A.2d 1053, 1056 (Me. 1985); cf.
Blount v. Department of Educ. & Cultural Servs., 551 A.2d 1377, 1385 (Me.
1988) (treating the federal and state due process provisions together).  
	[¶39]  Therefore, although article I, section 6-A does not expressly
require state action, we have made it clear that, just as under the Fourteenth
Amendment, state action nevertheless is a necessary element of a due
process claim, see Onat v. Penobscot Bay Med. Ctr., 574 A.2d 872, 875 (Me.
1990); Staples v. Bangor Hydro-Elec. Co., 561 A.2d 499, 501 (Me. 1989),
regardless of the context in which it might arise, see, e.g., State v. Cote,
1999 ME 123, ¶ 12, 736 A.2d 262, 265 (criminal); In re Alexander D.,
1998 ME 207, ¶ 13, 716 A.2d 222, 226 (termination of parental rights);
Nugent v. Town of Camden, 1998 ME 92, ¶ 18, 710 A.2d 245, 249
(municipal police power).  In sum, "[d]ue process of law is another name for
governmental fair play."  In re Stanley, 133 Me. 91, 95, 174 A. 93, 95
(1934) (emphasis added) (construing the "law of the land" clause of article
I, section 6 to be congruent with the Due Process Clause of the Fourteenth
	[¶40]  Nonetheless, the Court today has chosen to ignore its own
precedent regarding the application of the state's due process clause, see
Me. Const. art. I, § 6-A, as well as the analysis of the United States Supreme
Court in Connelly.  With no discussion regarding the analysis undertaken by
the Supreme Court, the Court has simply asserted that it is free to provide
broader protections than those provided under the federal constitution. 
Although that assertion, standing alone, is accurate, the Court may not
create concepts in the Maine Constitution that are not actually included
within its terms.
	[¶41]  Simply put, the Court is not free to interpret Maine's due
process clause to protect citizens from some amorphous evil.  The purpose
of the clause, both under the Maine and federal constitutions, is to prevent
the State from depriving an individual of rights without providing due
process of law.  Where there has been no conduct on the part of state actors
leading to a confession, the due process clause of the Maine Constitution is
simply not implicated.  
	[¶42]  Moreover, the teachings of the Connelly decision on the federal
Due Process Clause do not affect the State's ability to provide greater
protections under the Maine Constitutions for its own citizens.  Indeed, the
Court is free to adopt, and has adopted, a more stringent burden of proof on
the State for demonstrating that there has been no improper police conduct
that resulted in incriminating statements.  See State v. Collins, 297 A.2d
620, 636 (Me. 1972).
	[¶43]  In fact, in declining to follow Connelly, the Court appears to
have misapprehended the interplay between its own analysis and the
holdings of Connelly.  The discussion in Connelly did not address the weight
of the burden on the State in its responsibility to disprove overreaching on
the part of state actors.  Rather, the Connelly Court addressed itself to the
reach of the Due Process Clause.  That reach does not extend to a statement
that results from a force or actor that has no relationship with the State.  As
the Connelly Court noted, the flaw in such an analysis "is that it would
expand our previous line of 'voluntariness' cases into a far-ranging
requirement that courts must divine a defendant's motivation for speaking
or acting as he did even though there be no claim that governmental
conduct coerced his decision."  Connelly, 479 U.S. at 165-66.  Accordingly,
even "[t]he 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."  Id. at 166 (emphasis added) (citing Walter
v. United States, 447 U.S. 649, 656 (1980); Coolidge v. New Hampshire,
403 U.S. 443, 487-88 (1971); Burdeau v. McDowell, 256 U.S. 465, 476
	[¶44]  In sum, the judicially-crafted exclusionary rule arising from the
due process clauses of our state and federal constitutions was created both
to deter improper conduct by the State and to prevent the State from using
its ill-gotten gains against a citizen.  To apply the exclusion where there is
no such conduct renders the exclusionary rule pointless.

C.  Rules of Evidence

	[45]  A defendant who makes an inherently unreliable confession
under circumstances not involving external coercion or governmental
misconduct is not without recourse, however.  For example, a person
suffering from a mental illness that affects his connection to reality, who
confesses to a crime or makes other statements incriminating himself in a
criminal act, may move in limine to prevent the admission of such
statements.  If the court determines that the statement was made under
conditions that render it wholly unreliable, the statement can have no
probative value and will not be admissible for the truth of the assertions
contained therein.  See M.R. Evid. 401, 601.{12}
	[¶46]  I would hold, first, that on the facts found by the trial court, the
Fifth Amendment privilege against self-incrimination does not apply to
prevent the admission in evidence of statements made by Rees because he
was neither compelled nor coerced into making those statements by any
other person.{13}  
	[¶47]  I would further hold that Maine's due process clause does not
address the admissibility of an out-of-court statement of a suspect when no
conduct of a state actor has been a causal factor in the making of that
statement.  Here, however, the statements at issue were, in fact, given to a
police officer.  The conduct of the officer, even if it was not "misconduct,"
may constitute an overreaching for purposes of a due process analysis, if the
defendant was understood to be suffering from a physical or mental illness
and the officer took advantage of that disability, however subtly, to obtain a
	[¶48]  Because the motion court understood Caouette to require
suppression of the statement whether or not a state actor had engaged in
actions that failed to comport with our notions of due process, that is,
actions that demonstrated governmental fair play, it did not address itself to
the actions of the officers other than to determine that there was no
"misconduct."  If, given the defendant's state of mind or health, the officer's
conduct, although not rising to the level of misconduct, could reasonably be
understood to constitute an overreaching, then the court may invoke its
judicial authority to suppress those statements pursuant to the Fourteenth
Amendment.  The court's inquiry must be focused on whether the
interrogations techniques employed by the officer were improper even if
they were improper "only because, in the particular circumstances of the
case, the confession is unlikely to have been the product of a free and
rational will."  Miller v. Fenton, 474 U.S. 104, 110 (1983).
	[¶49]  Finally, although the facts found by the court do not appear to
rise to the level prohibiting admissibility under the Rules of Evidence, on
remand I would instruct the court to consider whether the statement is
inadmissible on purely evidentiary grounds.
	[¶50]  Accordingly, I would remand to the Superior Court to
determine (1) whether, considering defendant's mental health, the State
has proven beyond a reasonable doubt that the police did not overreach, and
if so (2) whether the statements, because of the state of Rees's mental
health, are so inherently unreliable as to be inadmissible.

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