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- Subject: 89-839 -- DISSENT, ARIZONA v. FULMINANTE
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- SUPREME COURT OF THE UNITED STATES
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- No. 89-839
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- ARIZONA, PETITIONER v. ORESTE C. FULMINANTE
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- on writ of certiorari to the supreme court of arizona
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- [March 26, 1991]
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- Justice Kennedy, concurring in the judgment.
- For the reasons stated by The Chief Justice, I agree that Fulminante's
- confession to Anthony Sarivola was not coerced. In my view, the trial
- court did not err in admitting this testimony. A majority of the Court,
- however, finds the confession coerced and proceeds to consider whether
- harmless-error analysis may be used when a coerced confession has been
- admitted at trial. With the case in this posture, it is appropriate for me
- to address the harmless-error issue.
- Again for the reasons stated by The Chief Justice, I agree that
- harmless-error analysis should apply in the case of a coerced confession.
- That said, the court conducting a harmless-error inquiry must appreciate
- the indelible impact a full confession may have on the trier of fact, as
- distinguished, for instance, from the impact of an isolated statement that
- incriminates the defendant only when connected with other evidence. If the
- jury believes that a defendant has admitted the crime, it doubtless will be
- tempted to rest its decision on that evidence alone, without careful
- consideration of the other evidence in the case. Apart, perhaps, from a
- videotape of the crime, one would have difficulty finding evidence more
- damaging to a criminal defendant's plea of innocence. For the reasons
- given by Justice White in Part IV of his opinion, I cannot with confidence
- find admission of Fulmin ante's confession to Anthony Sarivola to be
- harmless error.
- The same majority of the Court does not agree on the three issues
- presented by the trial court's determination to admit Fulminante's first
- confession: whether the confession was inadmissible because coerced;
- whether harmless error analysis is appropriate; and if so whether any error
- was harmless here. My own view that the confession was not coerced does
- not command a majority.
- In the interests of providing a clear mandate to the Arizona Supreme
- Court in this capital case, I deem it proper to accept in the case now
- before us the holding of five Justices that the confession was coerced and
- inadmissible. I agree with a majority of the Court that admission of the
- confession could not be harmless error when viewed in light of all the
- other evidence; and so I concur in the judgment to affirm the ruling of the
- Arizona Supreme Court.
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