source: Caselaw Access Project

author: Chief Justice Rehnquist Justice Blackmun, Justice Stevens, Justice Brennan,

license: Public Domain

text:
    COLORADO v. CONNELLY
    No. 85-660.
    Argued October 8, 1986
    Decided December 10, 1986

      Rehnquist, C. J., delivered the opinion of the Court, in which White, Powell, O’Connor, and Scalia, JJ., joined, and in all but Part III-A of which Blackmun, J., joined. Blackmun, J., filed an opinion concurring in part and concurring in the judgment, post, p. 171. Stevens, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 171. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 174.

      Nathan B. Coats argued the cause for petitioner. With him on the briefs was Norman S. Early, Jr.

      Andrew J. Pincus argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Trott, and Deputy Solicitor General Frey.

      Thomas M. Van Cleave III argued the cause for respondent. With him on the brief were David F. Vela, Robin Desmond, and Abelardo P. Bernal.

      Briefs of amici curiae urging reversal were filed for the State of Colorado et al. by Duane Woodard, Attorney General of Colorado, Charles B. Howe, Deputy Attorney General, Richard H. Forman, Solicitor General, and Eric Perryman, Assistant Attorney General, Charles A. Graddick, Attorney General of Alabama, John Van de Kamp, Attorney General of California, John J. Kelly, Chief State’s Attorney of Connecticut, Charles M. Oberly, Attorney General of Delaware, Jim Smith, Attorney General of Florida, Richard Opper, Attorney General of Guam, Jim Jones, Attorney General of Idaho, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Thomas J. Miller, Attorney General of Iowa, David L. Armstrong, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Edwin L. Pittman, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Mike Greely, Attorney General of Montana, Brian McKay, Attorney General of Nevada, Stephen E. Merrill, Attorney General of New Hampshire, W. Cary Edwards, Attorney General of New Jersey, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Michael Turpén, Attorney General of Oklahoma, David Frohnmayer, Attorney General of Oregon, Travis Medlock, Attorney General of South Carolina, W. J. Michael Cody, Attorney General of Tennessee, Jim Mattox, Attorney General of Texas, David L. Wilkinson, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, Leroy A. Mercer, Attorney General of the Virgin Islands, Mary Sue Terry, Attorney General of Virginia, Kenneth 0. Eikenberry, Attorney General of Washington, and Archie G. McClintock, Attorney General of Wyoming; and for the American Psychological Association by Bruce J. Ennis, Jr., and Donald N. Bersoff.

        Michael L. Perlin filed a brief for the Coalition for the Fundamental Rights and Equality of Ex-patients as amicus curiae urging affirmance.

        Fred E. Inbau, Wayne W. Schmidt, James P. Manak, Jack E. Yelver-ton, David Crump, Daniel B. Hales, and William C. Summers filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae.

   Chief Justice Rehnquist

delivered the opinion of the Court.

In this case, the Supreme Court of Colorado held that the United States Constitution requires a court to suppress a confession when the mental state of the defendant, at the time he made the confession, interfered with his “rational intellect” and his “free will.” Because this decision seemed to conflict with prior holdings of this Court, we granted certiorari. 474 U. S. 1050 (1986). We conclude that the admissibility of this kind of statement is governed by state rules of evidence, rather than by our previous decisions regarding coerced confessions and Miranda waivers. We therefore reverse.

I

On August 18, 1983, Officer Patrick Anderson of the Denver Police Department was in uniform, working in an off-duty capacity in downtown Denver. Respondent Francis Connelly approached Officer Anderson and, without any prompting, stated that he had murdered someone and wanted to talk about it. Anderson immediately advised respondent that he had the right to remain silent, that anything he said could be used against him in court, and that he had the right to an attorney prior to any police questioning. See Miranda v. Arizona, 384 U. S. 436 (1966). Respondent stated that he understood these rights but he still wanted to talk about the murder. Understandably bewildered by this confession, Officer Anderson asked respondent several questions. Connelly denied that he had been drinking, denied that he had been taking any drugs, and stated that, in the past, he had been a patient in several mental hospitals. Officer Anderson again told Connelly that he was under no obligation to say anything. Connelly replied that it was “all right,” and that he would talk to Officer Anderson because his conscience had been bothering him. To Officer Anderson, respondent appeared to understand fully the nature of his acts. Tr. 19.

Shortly thereafter, Homicide Detective Stephen Antuna arrived. Respondent was again advised of his rights, and Detective Antuna asked him “what he had on his mind.” Id., at 24. Respondent answered that he had come all the way from Boston to confess to the murder of Mary Ann Junta, a young girl whom he had killed in Denver sometime during November 1982. Respondent was taken to police headquarters, and a search of police records revealed that the body of an unidentified female had been found in April 1983. Respondent openly detailed his story to Detective Antuna and Sergeant Thomas Haney, and readily agreed to take the officers to the scene of the killing. Under Con-nelly’s sole direction, the two officers and respondent pro-eeeded in a police vehicle to the location of the crime. Respondent pointed out the exact location of the murder. Throughout this episode, Detective Antuna perceived no indication whatsoever that respondent was suffering from any kind of mental illness. Id., at 33-34.

Respondent was held overnight. During an interview with the public defender’s office the following morning, he became visibly disoriented. He began giving confused answers to questions, and for the first time, stated that “voices” had told him to come to Denver and that he had followed the directions of these voices in confessing. Id., at 42. Respondent was sent to a state hospital for evaluation. He was initially found incompetent to assist in his own defense. By March 1984, however, the doctors evaluating respondent determined that he was competent to proceed to trial.

At a preliminary hearing, respondent moved to suppress all of his statements. Dr. Jeffrey Metzner, a psychiatrist employed by the state hospital, testified that respondent was suffering from chronic schizophrenia and was in a psychotic state at least as of August 17, 1983, the day before he confessed. Metzner’s interviews with respondent revealed that respondent was following the “voice of God.” This voice instructed respondent to withdraw money from the bank, to buy an airplane ticket, and to fly from Boston to Denver. When respondent arrived from Boston, God’s voice became stronger and told respondent either to confess to the killing or to commit suicide. Reluctantly following the command of the voices, respondent approached Officer Anderson and confessed.

Dr. Metzner testified that, in his expert opinion, respondent was experiencing “command hallucinations.” Id., at 56. This condition interfered with respondent’s “volitional abilities; that is, his ability to make free and rational choices.” Ibid. Dr. Metzner further testified that Connelly’s illness did not significantly impair his cognitive abilities. Thus, respondent understood the rights he had when Officer Anderson and Detective Antuna advised him that he need not speak. Id., at 56-57. Dr. Metzner admitted that the “voices” could in reality be Connelly’s interpretation of his own guilt, but explained that in his opinion, Connelly’s psychosis motivated his confession.

On the basis of this evidence the Colorado trial court decided that respondent’s statements must be suppressed because they were “involuntary.” Relying on our decisions in Townsend v. Sain, 372 U. S. 293 (1963), and Culombe v. Connecticut, 367 U. S. 568 (1961), the court ruled that a confession is admissible only if it is a product of the defendant’s rational intellect and “free will.” Tr. 88. Although the court found that the police had done nothing wrong or coercive in securing respondent’s confession, Connelly’s illness destroyed his volition and compelled him to confess. Id., at 89. The trial court also found that Connelly’s mental state vitiated his attempted waiver of the right to counsel and the privilege against compulsory self-incrimination. Accordingly, respondent’s initial statements and his custodial confession were suppressed. Id., at 90.

The Colorado Supreme Court affirmed. 702 P. 2d 722 (1985). In that court’s view, the proper test for admissibility is whether the statements are “the product of a rational intellect and a free will.” Id., at 728. Indeed, “the absence of police coercion or duress does not foreclose a finding of involuntariness. One’s capacity for rational judgment and free choice may be overborne as much by certain forms of severe mental illness as by external pressure.” Ibid. The court found that the very admission of the evidence in a court of law was sufficient state action to implicate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The evidence fully supported the conclusion that respondent’s initial statement was not the product of a rational intellect and a free will. The court then considered respondent’s attempted waiver of his constitutional rights and found that respondent’s mental condition precluded his ability to make a valid waiver. Id., at 729. The Colorado Supreme Court thus affirmed the trial court’s decision to suppress all of Connelly’s statements.

II

The Due Process Clause of the Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” Just last Term, in Miller v. Fenton, 474 U. S. 104, 109 (1985), we held that by virtue of the Due Process Clause “certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned.” See also Moran v. Burbine, 475 U. S. 412, 432-434 (1986).

Indeed, coercive government misconduct was the catalyst for this Court’s seminal confession case, Brown v. Mississippi, 297 U. S. 278 (1936). In that case, police officers extracted confessions from the accused through brutal torture. The Court had little difficulty concluding that even though the Fifth Amendment did not at that time apply to the States, the actions of the police were “revolting to the sense of justice.” Id., at 286. The Court has retained this due process focus, even after holding, in Malloy v. Hogan, 378 U. S. 1 (1964), that the Fifth Amendment privilege against compulsory self-incrimination applies to the States. See Miller v. Fenton, supra, at 109-110.

Thus the cases considered by this Court over the 50 years since Brown v. Mississippi have focused upon the crucial element of police overreaching. While each confession case has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct. Absent 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 law. Respondent correctly notes that as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the “voluntariness” calculus. See Spano v. New York, 360 U. S. 315 (1959). But this fact does not justify a conclusion that a defendant’s mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional “voluntariness.”

Respondent relies on Blackburn v. Alabama, 361 U. S. 199 (1960), and Townsend v. Sain, 372 U. S. 293 (1963), for the proposition that the “deficient mental condition of the defendants in those cases was sufficient to render their confessions involuntary.” Brief for Respondent 20. But respondent’s reading of Blackburn and Townsend ignores the integral element of police overreaching present in both cases. In Blackburn, the Court found that the petitioner was probably insane at the time of his confession and the police learned during the interrogation that he had a history of mental problems. The police exploited this weakness with coercive tactics: “the eight- to nine-hour sustained interrogation in a tiny room which was upon occasion literally filled with police officers; the absence of Blackburn’s friends, relatives, or legal counsel; [and] the composition of the confession by the Deputy Sheriff rather than by Blackburn.” 361 U. S., at 207-208. These tactics supported a finding that the confession was involuntary. Indeed, the Court specifically condemned police activity that “wrings a confession out of an accused against his will.” Id., at 206-207. Townsend presented a similar instance of police wrongdoing. In that case, a police physician had given Townsend a drug with truth-serum properties. 372 U. S., at 298-299. The subsequent confession, obtained by officers who knew that Townsend had been given drugs, was held involuntary. These two cases demonstrate that while mental condition is surely relevant to an individual’s susceptibility to police coercion, mere examination of the confessant’s state of mind can never conclude the due process inquiry.

Our “involuntary confession” jurisprudence is entirely consistent with the settled law requiring some sort of “state action” to support a claim of violation of the Due Process Clause of the Fourteenth Amendment. The Colorado trial court, of course, found that the police committed no wrongful acts, and that finding has been neither challenged by respondent nor disturbed by the Supreme Court of Colorado. The latter court, however, concluded that sufficient state action was present by virtue of the admission of the confession into evidence in a court of the State. 702 P. 2d, at 728-729.

The difficulty with the approach of the Supreme Court of Colorado is that it fails to recognize the essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other. The flaw in respondent’s constitutional argument 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.

The 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. See Walter v. United States, 447 U. S. 649, 656 (1980); Coolidge v. New Hampshire, 403 U. S. 443, 487-488 (1971); Burdeau v. McDowell, 256 U. S. 465, 476 (1921). We have also observed that “[j Jurists and scholars uniformly have recognized that the exclusionary rule imposes a substantial cost on the societal interest in law enforcement by its proscription of what concededly is relevant evidence.” United States v. Janis, 428 U. S. 433, 448-449 (1976). See also United States v. Havens, 446 U. S. 620, 627 (1980); United States v. Calandra, 414 U. S. 338 (1974). Moreover, suppressing respondent’s statements would serve absolutely no purpose in enforcing constitutional guarantees. The purpose of excluding evidence seized in violation of the Constitution is to substantially deter future violations of the Constitution. See United States v. Leon, 468 U. S. 897, 906-913 (1984). Only if we were to establish a brand new constitutional right — the right of a criminal defendant to confess to his crime only when totally rational and properly motivated — could respondent’s present claim be sustained.

We have previously cautioned against expanding “currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries . . . .” Lego v. Twomey, 404 U. S. 477, 488-489 (1972). We abide by that counsel now. “[T]he central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence,” Delaware v. Van Arsdall, 475 U. S. 673, 681 (1986), and while we have previously held that exclusion of evidence may be necessary to protect constitutional guarantees, both the necessity for the collateral inquiry and the exclusion of evidence deflect a criminal trial from its basic purpose. Respondent would now have us require sweeping inquiries into the state of mind of a criminal defendant who has confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State. We think the Constitution rightly leaves this sort of inquiry to be resolved by state laws governing the admission of evidence and erects no standard of its own in this area. A statement rendered by one in the condition of respondent might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of the forum, see, e. g., Fed. Rule Evid. 601, and not by the Due Process Clause of the Fourteenth Amendment. “The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.” Lisenba v. California, 314 U. S. 219, 236 (1941).

We hold that coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment. We also conclude that the taking of respondent’s statements, and their admission into evidence, constitute no violation of that Clause.

III

A

The Supreme Court of Colorado went on to affirm the trial court’s ruling that respondent’s later statements made while in custody should be suppressed because respondent had not waived his right to consult an attorney and his right to remain silent. That court held that the State must bear its burden of proving waiver of these Miranda rights by “clear and convincing evidence.” 702 P. 2d, at 729. Although we have stated in passing that the State bears a “heavy” burden in proving waiver, Tague v. Louisiana, 444 U. S. 469 (1980) (per curiam); North Carolina v. Butler 441 U. S. 369, 373 (1979); Miranda v. Arizona, 384 U. S., at 475, we have never held that the “clear and convincing evidence” standard is the appropriate one.

In Lego v. Twomey, supra, this Court upheld a procedure in which the State established the voluntariness of a confession by no more than a preponderance of the evidence. We upheld it for two reasons. First, the voluntariness determination has nothing to do with the reliability of jury verdicts; rather, it is designed to determine the presence of police coercion. Thus, voluntariness is irrelevant to the presence or absence of the elements of a crime, which must be proved beyond a reasonable doubt. See In re Winship, 397 U. S. 358 (1970). Second, we rejected Lego’s assertion that a high burden of proof was required to serve the values protected by the exclusionary rule. We surveyed the various reasons for excluding evidence, including a violation of the requirements of Miranda v. Arizona, supra, and we stated that “[i]n each instance, and without regard to its probative value, evidence is kept from the trier of guilt or innocence for reasons wholly apart from enhancing the reliability of verdicts.” Lego v. Twomey, 404 U. S., at 488. Moreover, we rejected the argument that “the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond a reasonable doubt.” Ibid. Indeed, the Court found that “no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence.” Ibid.

We now reaffirm our holding in Lego: Whenever the State bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver only by a preponderance of the evidence. See Nix v. Williams, 467 U. S. 431, 444, and n. 5 (1984); United States v. Matlock, 415 U. S. 164, 178, n. 14 (1974) (“[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence . . .”). Cf. Moore v. Michigan, 355 U. S. 155, 161-162 (1957). If, as we held in Lego v. Twomey, supra, the voluntariness of a confession need be established only by a preponderance of the evidence, then a waiver of the auxiliary protections established in Miranda should require no higher burden of proof. “[Exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution and it is very doubtful that escalating the prosecution’s burden of proof in . . . suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence.” Lego v. Twomey, supra, at 489. See also United States v. Leon, 468 U. S., at 906-913.

B

We also think that the Supreme Court of Colorado was mistaken in its analysis of the question whether respondent had waived his Miranda rights in this case. Of course, a waiver must at a minimum be “voluntary” to be effective against an accused. Miranda, supra, at 444, 476; North Carolina v. Butler, supra, at 373. The Supreme Court of Colorado in addressing this question relied on the testimony of the court-appointed psychiatrist to the effect that respondent was not capable of making a “free decision with respect to his constitutional right of silence . . . and his constitutional right to confer with a lawyer before talking to the police.” 702 P. 2d, at 729.

We think that the Supreme Court of Colorado erred in importing into this area of constitutional law notions of “free will” that have no place there. There is obviously no reason to require more in the way of a “voluntariness” inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context. The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion. See United States v. Washington, 431 U. S. 181, 187 (1977); Miranda, supra, at 460. Indeed, the Fifth Amendment privilege is not concerned “with moral and psychological pressures to confess emanating from sources other than official coercion.” Oregon v. Elstad, 470 U. S. 298, 305 (1985). The voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on “free choice” in any broader sense of the word. See Moran v. Burbine, 475 U. S., at 421 (“[T]he relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. . . . [T]he record is devoid of any suggestion that police resorted to physical or psychological pressure to elicit the statements”); Fare v. Michael C., 442 U. S. 707, 726-727 (1979) (The defendant was “not worn down by improper interrogation tactics or lengthy questioning or by trickery or deceit. . . . The officers did not intimidate or threaten respondent in any way. Their questioning was restrained and free from the abuses that so concerned the Court in Miranda”).

. Respondent urges this Court to adopt his “free will” rationale, and to find an attempted waiver invalid Whenever the defendant feels compelled to waive his rights by reason of any compulsion, even if the compulsion does not flow from the police. But such a treatment of the waiver issue would “cut this Court’s holding in [Miranda] completely loose from its own explicitly stated rationale.” Beckwith v. United States, 425 U. S. 341, 345 (1976). Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that. Respondent’s perception of coercion flowing from the “voice of God,” however important or significant such a perception may be in other disciplines, is a matter to which the United States Constitution does not speak.

I — i <1

The judgment of the Supreme Court of Colorado is accordingly reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Blackmun,

concurring in part and concurring in the judgment.

I join Parts I, II, III-B, and IV of the Court’s opinion and its judgment.

I refrain, however, from joining Part III-A of the opinion. Whatever may be the merits of the issue discussed there, which concerns the level of the State’s burden of proof in showing that respondent had waived his rights under Miranda v. Arizona, 384 U. S. 436 (1966), that issue was neither raised nor briefed by the parties, and, in my view, it is not necessary to the decision.

Justice Stevens,

concurring in the judgment in part and dissenting in part.

Respondent made incriminatory statements both before and after he was handcuffed and taken into custody. The only question presented by the Colorado District Attorney in his certiorari petition concerned the admissibility of respondent’s precustodial statements. Pet. for Cert, i, 14-15. I agree with the State of Colorado that the United States Constitution does not require suppression of those statements, but in reaching that conclusion, unlike the Court, I am perfectly willing to accept the state trial court’s finding that the statements were involuntary.

The state trial court found that, in view of the “overwhelming evidence presented by the Defense,” the prosecution did not meet its burden of demonstrating that respondent’s initial statements to Officer Anderson were voluntary. App. 47-48. Nevertheless, in my opinion, the use of these involuntary precustodial statements does not violate the Fifth Amendment because they were not the product of state compulsion. Although they may well be so unreliable that they could not support a conviction, at this stage of the proceeding I could not say that they have no probative force whatever. The fact that the statements were involuntary — just as the product of Lady Macbeth’s nightmare was involuntary— does not mean that their use for whatever evidentiary value they may have is fundamentally unfair or a denial of due process.

The postcustodial statements raise an entirely distinct question. When the officer whom respondent approached elected to handcuff him and to take him into custody, the police assumed a fundamentally different relationship with him. Prior to that moment, the police had no duty to give respondent Miranda warnings and had every right to continue their exploratory conversation with him. Once the custodial relationship was established, however, the questioning assumed a presumptively coercive character. Miranda v. Arizona, 384 U. S. 436, 467 (1966). In my opinion the questioning could not thereafter go forward in the absence of a valid waiver of respondent’s constitutional rights unless he was provided with counsel. Since it is undisputed that respondent was not then competent to stand trial, I would also conclude that he was not competent to waive his constitutional right to remain silent.

The Court seems to believe that a waiver can be voluntary even if it is not the product of an exercise of the defendant’s “Tree will.’” Ante, at 169. The Court’s position is not only incomprehensible to me; it is also foreclosed by the Court’s recent pronouncement in Moran v. Burbine, 475 U. S. 412, 421 (1986), that “the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice . . . .” Because respondent’s waiver was not voluntary in that sense, his custodial interrogation was presumptively coercive. The Colorado Supreme Court was unquestionably correct in concluding that his post-custodial incriminatory statements were inadmissible.

Accordingly, I concur in the judgment insofar as it applies to respondent’s precustodial statements but respectfully dissent from the Court’s disposition of the question that was not presented by the certiorari petition.

Justice Brennan,

with whom Justice Marshall joins, dissenting.

Today the Court denies Mr. Connelly his fundamental right to make a vital choice with a sane mind, involving a determination that could allow the State to deprive him of liberty or even life. This holding is unprecedented: “Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane . . . .” Blackburn v. Alabama, 361 U. S. 199, 207 (1960). Because I believe that the use of a mentally ill person’s involuntary confession is antithetical to the notion of fundamental fairness embodied in the Due Process Clause, I dissent.

I

The respondent s seriously impaired mental condition is clear on the record of this case. At the time of his confession, Mr. Connelly suffered from a “longstanding severe mental disorder,” diagnosed as chronic paranoid schizophrenia. 1 Record 16. He had been hospitalized for psychiatric reasons five times prior to his confession; his longest hospitalization lasted for seven months. Id., at 12. Mr. Connelly heard imaginary voices and saw nonexistent objects. Tr. 56. He believed that his father was God, and that he was a reincarnation of Jesus. 1 Record 15.

At the time of his confession, Mr. Connelly’s mental problems included “grandiose and delusional thinking.” Id., at 16. He had a known history of “thought withdrawal and insertion.” Id., at 14. Although physicians had treated Mr. Connelly “with a wide variety of medications in the past including antipsychotic medications,” he had not taken any antipsychotic medications for at least six months prior to his confession. Id., at 12. Following his arrest, Mr. Connelly initially was found incompetent to stand trial because the court-appointed psychiatrist, Dr. Metzner, “wasn’t very confident that he could consistently relate accurate information.” Tr. 68. Dr. Metzner testified that Mr. Connelly was unable “to make free and rational choices” due to auditory hallucinations: “[W]hen he was read his Miranda rights, he probably had the capacity to know that he was being read his Miranda rights [but] he wasn’t able to use that information because of the command hallucinations that he had experienced.”’ Id., at 56-57. He achieved competency to stand trial only after six months of hospitalization and treatment with anti-psychotic and sedative medications. Id., at 68; 1 Record 16.

The state trial court found that the “overwhelming evidence presented by the Defense” indicated that the prosecution did not meet its burden of demonstrating by a preponderance of the evidence that the initial statement to Officer Anderson was voluntary. While the court found no police misconduct, it held:

“[T]here’s no question that the Defendant did not exercise free will in choosing to talk to the police. He exercised a choice both [sic] of which were mandated by auditory hallucination, had no basis in reality, and were the product of a psychotic break with reality. The Defendant at the time of the confession had absolutely in the Court’s estimation no volition or choice to make.” App. 47.

The trial court also held that the State had not shown by clear and convincing evidence that the defendant had waived his Miranda right to counsel and to self-incrimination “voluntarily, knowingly and intelligently.” App. 48.

The Supreme Court of Colorado affirmed after evaluating “the totality of circumstances” surrounding the unsolicited confession and the waiver of Miranda rights. 702 P. 2d 722, 728 (1985).

M h-i

The absence of police wrongdoing should not, by itself, determine the voluntariness of a confession by a mentally ill person. The requirement that a confession be voluntary reflects a recognition of the importance of free will and of reliability in determining the admissibility of a confession, and thus demands an inquiry into the totality of the circumstances surrounding the confession.

A

Today’s decision restricts the application of the term “involuntary” to those confessions obtained by police coercion. Confessions by mentally ill individuals or by persons coerced by parties other than police officers are now considered “voluntary.” The Court’s failure to recognize all forms of involuntariness or coercion as antithetical to due process reflects a refusal to acknowledge free will as a value of constitutional consequence. But due process derives much of its meaning from a conception of fundamental fairness that emphasizes the right to make vital choices voluntarily: “The Fourteenth Amendment secures against state invasion . . . the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own wall . . . .” Malloy v. Hogan, 378 U. S. 1, 8 (1964). This right requires vigilant protection if we are to safeguard the values of private conscience and human dignity.

This Court’s assertion that we would be required “to establish a brand new constitutional right” to recognize the respondent’s claim, ante, at 166, ignores 200 years of constitutional jurisprudence. As we stated in Culombe v. Connecticut, 367 U. S. 568 (1961):

“The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? . . . The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.” Id., at 602 (emphasis added).

A true commitment to fundamental fairness requires that the inquiry be “not whether the conduct of state officers in obtaining the confession is shocking, but whether the confession was Tree and voluntary’ . . . .” Malloy v. Hogan, supra, at 7.

We have never confined our focus to police coercion, because the value of freedom of will has demanded a broader inquiry. See Blackburn v. Alabama, 361 U. S., at 206-207. The confession cases decided by this Court over the 50 years since Brown v. Mississippi, 297 U. S. 278 (1936), have focused upon both police overreaching and free will. While it is true that police overreaching has been an element of every confession case to date, see ante, at 163-164, n. 1, it is also true that in every case the Court has made clear that ensuring that a confession is a product of free will is an independent concern. The fact that involuntary confessions have always been excluded in part because of police overreaching signifies only that this is a case of first impression. Until today, we have never upheld the admission of a confession that does not reflect the exercise of free will.

The Court cites Townsend v. Sain, 372 U. S. 293 (1963), and Blackburn in support of its view that police wrongdoing should be the central focus of inquiry. In Townsend, we overturned a murder conviction because the defendant’s conviction was determined to be involuntary. The defendant suffered from stomach pains induced by heroin withdrawal. The police properly contacted a physician who administered medications alleviating the withdrawal symptoms. The defendant then confessed. 372 U. S., at 298. Although the physician denied that he purposely administered “truth serum,” there was an indication that the medications could have had such a side effect upon a narcotic addict. Id., at 302.

The Townsend Court examined “many relevant circumstances”: “Among these are [the defendant’s] lack of counsel at the time, his drug addiction, the fact that he was a ‘near mental defective,’ and his youth and inexperience.” Id., at 308, n. 4. According to today’s Court, the police wrongdoing in Townsend was that the police physician had allegedly given the defendant a drug with truth-serum properties, and that the confession was obtained by officers who knew that the defendant had been given drugs. Ante, at 165. But, in fact, “the police ... did not know what [medications] the doctor had given [the defendant].” 372 U. S., at 299. And the Townsend Court expressly states that police wrongdoing was not an essential factor:

“It is not significant that the drug may have been administered and the questions asked by persons unfamiliar with hyoscine’s properties as a ‘truth serum,’ if these properties exist. Any questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible. The Court has usually so stated the test.” Id., at 308 (footnote omitted; emphasis in original).

Furthermore, in prescient refutation of this Court’s “police wrongdoing” theory, the Townsend Court analyzed Blackburn, the other case relied upon by this Court to “demonstrate” that police wrongdoing was a more important factor than the defendant’s state of mind. The Court in Townsend stated:

“[I]n Blackburn v. Alabama, 361 U. S. 199, we held irrelevant the absence of evidence of improper purpose on the part of the questioning officers. There the evidence indicated that the interrogating officers thought the defendant sane when he confessed, but we judged the confession inadmissible because the probability was that the defendant was in fact insane at the time.” 372 U. S., at 309 (emphasis added).

Thus the Townsend Court interpreted Blackburn as a case involving a confession by a mentally ill defendant in which the police harbored no improper purpose.

This Court abandons this precedent in favor of the view that only confessions rendered involuntary by some state action are inadmissible, and that the only relevant form of state action is police conduct. But even if state action is required, police overreaching is not its only relevant form. The Colorado Supreme Court held that the trial court’s admission of the involuntary confession into evidence is also state action. The state court’s analysis is consistent with Brown v. Mississippi, 297 U. S. 278 (1936), on which this Court so heavily relies. Brown, a case involving the use of confessions at trial, makes clear that “[t]he due process clause requires ‘that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.’” Id., at 286 (emphasis added), citing Hebert v. Louisiana, 272 U. S. 312, 316 (1926). Police conduct constitutes but one form of state action. “The objective of deterring improper police conduct is only part of the larger objective of safeguarding the integrity of our adversary system.” Harris v. New York, 401 U. S. 222, 231 (1971) (Brennan, J., dissenting).

The only logical “flaw” which the Court detects in this argument is that it would require courts to “divine a defendant’s motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision.” Ante, at 165. Such a criticism, however, ignores the fact that we have traditionally examined the totality of the circumstances, including the motivation and competence of the defendant, in determining whether a confession is voluntary. Even today’s Court admits that “as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the ‘voluntariness’ calculus.” Ante, at 164. The Court’s holding that involuntary confessions are only those procured through police misconduct is thus inconsistent with the Court’s historical insistence that only confessions reflecting an exercise of free will be admitted into evidence.

B

Since the Court redefines voluntary confessions to include confessions by mentally ill individuals, the reliability of these confessions becomes a central concern. A concern for reliability is inherent in our criminal justice system, which relies upon accusatorial rather than inquisitorial practices. While an inquisitorial system prefers obtaining confessions from criminal defendants, an accusatorial system must place its faith in determinations of “guilt by evidence independently and freely secured.” Rogers v. Richmond, 365 U. S. 534, 541 (1961). In Escobedo v. Illinois, 378 U. S. 478 (1964), we justified our reliance upon accusatorial practices:

“We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Id., at 488-489 (footnotes omitted).

Our interpretation of the Due Process Clause has been shaped by this preference for accusatorial practices, see Miller v. Fenton, 474 U. S. 104, 109-110 (1985); Malloy v. Hogan, 378 U. S., at 7; Watts v. Indiana, 338 U. S. 49, 54 (1949), and by a concern for reliability, see Barefoot v. Estelle, 463 U. S. 880, 925 (1983) (Blackmun, J., dissenting); Foster v. California, 394 U. S. 440, 442 (1969).

Our distrust for reliance on confessions is due, in part, to their decisive impact upon the adversarial process. Triers of fact accord confessions such heavy weight in their determinations that “the introduction of a confession makes the other aspects of a trial in court superfluous, and the real trial, for all practical purposes, occurs when the confession is obtained.” E. Cleary, McCormick on Evidence 316 (2d ed. 1972); see also Miranda v. Arizona, 384 U. S. 436, 466 (1966); Mapp v. Ohio, 367 U. S. 643, 685 (1961). No.other class of evidence is so profoundly prejudicial. See Saltzburg, Standards of Proof and Preliminary Questions of Fact, 27 Stan. L. Rev. 271, 293 (1975). “Thus the decision to confess before trial amounts in effect to a waiver of the right to require the state at trial to meet its heavy burden of proof.” Cleary, supra, at 316.

Because the admission of a confession so strongly tips the balance against the defendant in the adversarial process, we must be especially careful about a confession’s reliability. We have to date not required a finding of reliability for involuntary confessions only because all such confessions have been excluded upon a finding of involuntariness, regardless of reliability. See Jackson v. Denno, 378 U. S. 368, 383-386 (1964). The Court’s adoption today of a restrictive definition of an “involuntary” confession will require heightened scrutiny of a confession’s reliability.

The instant case starkly highlights the danger of admitting a confession by a person with a severe mental illness. The trial court made no findings concerning the reliability of Mr. Connelly’s involuntary confession, since it believed that the confession was excludable on the basis of involuntariness. However, the overwhelming evidence in the record points to the unreliability of Mr. Connelly’s delusional mind. Mr. Connelly was found incompetent to stand trial because he was unable to relate accurate information, and the court-appointed psychiatrist indicated that Mr. Connelly was actively hallucinating and exhibited delusional thinking at the time of his confession. See supra, at 174. The Court, in fact, concedes that “[a] statement rendered by one in the condition of respondent might be proved to be quite unreliable . . . .” Ante, at 167.

Moreover, the record is barren of any corroboration of the mentally ill defendant’s confession. No physical evidence links the defendant to the alleged crime. Police did not identify the alleged victim’s body as the woman named by the defendant. Mr. Connelly identified the alleged scene of the crime, but it has not been verified that the unidentified body was found there or that a crime actually occurred there. There is not a shred of competent evidence in this record linking the defendant to the charged homicide. There is only Mr. Connelly’s confession.

Minimum standards of due process should require that the trial court find substantial indicia of reliability, on the basis of evidence extrinsic to the confession itself, before admitting the confession of a mentally ill person into evidence. I would require the trial court to make such a finding on remand. To hold otherwise allows the State to imprison and possibly to execute a mentally ill defendant based solely upon an inherently unreliable confession.

III

This Court inappropriately reaches out to address two Miranda issues not raised by the prosecutor in his petition for certiorari: (1) the burden of proof upon the government in establishing the voluntariness of Miranda rights, and (2) the effect of mental illness on the waiver of those rights in the absence of police misconduct. I emphatically dissent from the Court’s holding that the government need prove waiver by only a preponderance of the evidence, and from its conclusion that a waiver is automatically voluntary in the absence of police coercion.

A

In holding that the government need only prove the volun-tariness of the waiver of Miranda rights by a preponderance of the evidence, the Court ignores the explicit command of Miranda:

“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. This Court has always set high standards of proof for the waiver of constitutional rights, and we re-assert these standards as applied to in-custody interrogation.” Miranda v. Arizona, 384 U. S., at 475 (emphasis added; citations omitted).

In recognition of the importance of the Due Process Clause and the Fifth Amendment, we always have characterized the State’s burden of proof on a Miranda waiver as “great” and “heavy.” See, e. g., Tagne v. Louisiana, 444 U. S. 469, 470-471 (1980); North Carolina v. Butler, 441 U. S. 369, 373 (1979); Schneckloth v. Bustamonte, 412 U. S. 218, 236 (1973). Furthermore, under the Sixth Amendment, we have required the prosecution to meet a clear and convincing standard in demonstrating that evidence is not tainted by the absence of counsel at police lineups. See United States v. Wade, 388 U. S. 218, 240 (1967). Imposing the weakest possible burden of proof for waiver of Miranda’s right to counsel plainly ignores this precedent.

The Court bases its holding on Lego v. Twomey, 404 U. S. 477 (1972). The four-Member Lego Court concluded that a confession obtained when the defendant was not in custody could be admitted into evidence if the prosecution proved its voluntariness by a preponderance of the evidence. The Lego Court’s rationale rested on two related premises. First, since all involuntary confessions were excluded, even if truthful, the voluntariness determination was not based on reliability. Thus the requirement of proof beyond reasonable doubt for every feet necessary to constitute the charged crime, In re Winship, 397 U. S. 358, 364 (1970), was not applicable, because the concern of the Winship Court was the reliability of verdicts. 404 U. S., at 482-486. Second, the four Justices constituting the majority in Lego rejected the petitioner’s argument that proof beyond reasonable doubt would best serve the constitutional values that the exclusionary rule was meant to protect. The four again emphasized that reliability of evidence was not a concern since all involuntary confessions were excluded. It found no evidence that federal rights had suffered by imposing the weakest standard of proof for exclusionary rules. Id., at 487-489.

I adhere to my Lego dissent. The constitutional ideal that involuntary confessions should never be admitted against the defendant in criminal cases deserves protection by the highest standard of proof — proof beyond a reasonable doubt. Id., at 491. The lower standard of proof results “in the admission of more involuntary confessions than would be admitted were the prosecution required to meet a higher standard.” Id., at 493. “Compelled self-incrimination is so alien to the American sense of justice that I see no way that such a view could ever be justified.” Id., at 494.

But even if the four Justices in Lego were correct, their holding is irrelevant to this case. The presumption underlying the reasoning in Lego was that reliability was not an important concern because involuntary confessions were always excluded. Today the Court redefines voluntariness so that involuntary confessions that are not the result of police wrongdoing are no longer excluded under the voluntariness standard. My analysis in Part II-B shows that reliability should now become a major concern in the admission of such confessions. Since the reliability of verdicts is at stake, proof beyond a reasonable doubt constitutes the appropriate standard.

Finally, Lego involved a situation in which the defendant was not in custody. By contrast, a Miranda waiver is found while a defendant is in police custody. The coercive custodial interrogation atmosphere poses an increased danger of police overreaching. The police establish the isolated conditions of custody and can document the voluntary waiver of Miranda rights through disinterested witnesses or recordings. See Miranda v. Arizona, supra, at 475. It is therefore appropriate to place a higher burden of proof on the government in establishing a waiver of Miranda rights.

The ultimate irony is that, even accepting the preponderance of the evidence as the correct standard, the prosecution still failed to meet this burden of proof. The Colorado Supreme Court found that Dr. Metzner, the court-appointed psychiatrist and the only expert to testify, “clearly established” that Mr. Connelly “was incapable” of making a “free decision” respecting his Miranda rights. 702 P. 2d, at 729. Thus the prosecution failed — even by the modest standard imposed today — to prove that Mr. Connelly voluntarily waived his Miranda rights.

B

The Court imports its voluntariness analysis, which makes police coercion a requirement for a finding of involuntariness, into its evaluation of the waiver of Miranda rights. My reasoning in Part II-A, supra, at 176-181, applies a fortiori to involuntary confessions made in custody involving the waiver of constitutional rights. See also Miranda v. Arizona, supra, at 460. I will not repeat here what I said there.

I turn then to the second requirement, apart from the vol-untariness requirement, that the State must satisfy to establish a waiver of Miranda rights. Besides being voluntary, the waiver must be knowing and intelligent. See Moran v. Burbine, 475 U. S. 412, 421 (1986). We recently noted that “the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Ibid. The two requirements are independent: “Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Ibid, (emphasis added).

Since the Colorado Supreme Court found that Mr. Con-nelly was “clearly” unable to make an “intelligent” decision, clearly its judgment should be affirmed. The Court reverses the entire judgment, however, without explaining how a “mistaken view of voluntariness” could “taint” this independent justification for suppressing the custodial confession, but leaving the Colorado Supreme Court free on remand to reconsider other issues, not inconsistent with the Court’s opinion. Such would include, in my view, whether the requirement of a knowing and intelligent waiver was satisfied. See ante, at 171, n. 4. Moreover, on the remand, today’s holding does not, of course, preclude a contrary resolution of this case based upon the State’s separate interpretation of its own Constitution. See South Dakota v. Opperman, 428 U. S. 364, 396 (1976) (Marshall, J., dissenting).

I dissent.

         E. g., Mincey v. Arizona, 437 U. S. 385 (1978) (defendant subjected to 4-hour interrogation while incapacitated and sedated in intensive-care unit); Greenwald v. Wisconsin, 390 U. S. 519 (1968) (defendant, on medication, interrogated for over 18 hours without food or sleep); Beecher v. Alabama, 389 U. S. 35 (1967) (police officers held gun to the head of wounded eonfessant to extract confession); Davis v. North Carolina, 384 U. S. 737 (1966) (16 days of incommunicado interrogation in closed cell without windows, limited food, and coercive tactics); Reck v. Pate, 367 U. S. 433 (1961) (defendant held for four days with inadequate food and medical attention until confession obtained); Culombe v. Connecticut, 367 U. S. 568 (1961) (defendant held for five days of repeated questioning during which police employed coercive tactics); Payne v. Arkansas, 356 U. S. 560 (1958) (defendant held incommunicado for three days with little food; confession obtained when officers informed defendant that Chief of Police was preparing to admit lynch mob into jail); Ashcraft v. Tennessee, 322 U. S. 143 (1944) (defendant questioned by relays of officers for 36 hours without an opportunity for sleep).

       Even where there is causal connection between police misconduct and a defendant’s confession, it does not automatically follow that there has been a violation of the Due Process Clause. See, e. g., Frazier v. Cupp, 394 U. S. 731, 739 (1969).

       Petitioner conceded at oral argument that when Officer Anderson handcuffed respondent, the custody requirement of Miranda was satisfied. For purposes of our decision we accept that concession, and we similarly assume that the police officers “interrogated” respondent within the meaning of Miranda.

       It is possible to read the opinion of the Supreme Court of Colorado as finding respondent’s Miranda waiver invalid on other grounds. Even if that is the ease, however, we nonetheless reverse the judgment in its entirety because of our belief that the Supreme Court of Colorado’s analysis was influenced by its mistaken view of “voluntariness” in the constitutional sense. Reconsideration of other issues, not inconsistent with our opinion, is of course open to the Supreme Court of Colorado on remand.

       The petition states: “[Respondent’s] later confession, which involves a Miranda issue, is not an issue in this petition.” Pet. for Cert. 15.

       “What, will these hands ne’er be clean?

      “Here’s the smell of the blood still: all the perfumes of Arabia will not sweeten this little hand.” W. Shakespeare, Macbeth, Act V, scene 1, lines 41, 47.
      Lady Macbeth’s “eyes are open,” “but their sense is shut.” Id., at line 23.

       See Schneckloth v. Bustamante, 412 U. S. 218, 247 (1973) (“Miranda, of course, did not reach investigative questioning of a person not in custody . . .”).

       The trial court found:
      “Here, in the Court’s estimation, there’s no question that the Defendant did not exercise free will in choosing to talk to the police. He exercised a choice both [sic] of which were mandated by auditory hallucination, had no basis in reality, and were the product of a psychotic break with reality. The Defendant at the time of the confession had absolutely in the Court’s estimation no volition or choice to make. He was compelled by his illness to do that which he did, and he did so in a manner which is not unusual for people who suffer schizophrenia.” App. 47.

       The Court relies on the further statement in Moran v. Burbine, 475 U. S., at 421, that the waiver must result from “free and deliberate choice rather than intimidation, coercion, or deception . . . .” Ante, at 170. Obviously this dichotomy does not exhaust the possibilities; the mere absence of police misconduct does not establish that the suspect has made a free and deliberate choice when the suspect is not competent to stand trial.

       Cf. Bram v. United States, 168 U. S. 532, 547-548 (1897) (reviewing the “rule [of law] in England at the time of the adoption of the Constitution and of the Fifth Amendment” and citing W. Hawkins, Pleas of the Crown (6th ed. 1787): “[a] confession, therefore, whether made upon an official examination or in discourse with private persons, which is obtained from a defendant, either by the flattery of hope, or by the impressions of fear, however slightly the emotions may be implanted,... is not admissible evidence; for the law will not suffer a prisoner to be made the deluded instrument of his own conviction”) (emphasis added).

         E. g., Mincey v. Arizona, 437 U. S. 385, 398 (1978) (“It is hard to imagine a situation less conducive to the exercise of ‘a rational intellect and a free will’ than Mincey’s”); Greenwald v. Wisconsin, 390 U. S. 519, 521 (1968) (“Considering the totality of these circumstances, we do not think it credible that petitioner’s statements were the product of his free and rational choice”); Beecher v. Alabama, 389 U. S. 35, 37 (1967) (“Still in a ‘kind of slumber’ from his last morphine injection, feverish, and i(n intense pain, the petitioner signed the written confessions thus prepared for him”); Davis v. North Carolina, 384 U. S. 737, 742 (1966) (“His level of intelli-genee is such that it prompted the comment by the court below, even while deciding against him on his claim of involuntariness, that there is a moral question whether a person of Davis’ mentality should be executed”); Reck v. Pate, 367 U. S. 433, 440 (1961) (“If [a defendant’s will was overborne], the confession cannot be deemed ‘the product of a rational intellect and a free will’”); Culombe v. Connecticut, 367 U. S. 568, 583 (1961) (“[A]n extra-judicial confession, if it was to be offered in evidence against a man, must be the product of his own free choice”); Payne v. Arkansas, 356 U. S. 560, 567 (1958) (footnotes omitted) (“It seems obvious from the totality of this course of conduct, and particularly the culminating threat of mob violence, that the confession was coerced and did not constitute an ‘expression of free choice’ ”); Ashcraft v. Tennessee, 322 U. S. 143, 147 (1944) (“He was induced by the fear of violence at the hands of a mob and by fear of the officers”).

       Even if police knowledge of the defendant’s insanity is required to exclude an involuntary confession, the record supports' a finding of police knowledge in this case. The Court accepts the trial court’s finding of no police wrongdoing since, in the trial judge’s view, none of the police officers knew that Mr. Connelly was insane. Tr. 83-84. After plenary review of the record, see Miller v. Fenton, 474 U. S. 104, 115 (1985), I conclude that this finding is clearly erroneous.
      When the defendant confessed to Officer Anderson, the officer’s first thought was that Mr. Connelly was a “crackpot.” Tr. 8. Today’s Court describes Officer Anderson as “[ujnderstandably bewildered.” Ante, at 160. After giving Miranda warnings, the officer questioned the defendant about whether he used drugs or alcohol. He also asked Mr. Connelly if he had been treated for any mental disorders, and the defendant responded that he had been treated in five different mental hospitals. Tr. 14, 17. While this Court concludes that “Detective Antuna perceived no indication whatsoever that respondent was suffering from any kind of mental illness,” ante, at 161, the record indicates that Officer Anderson informed the detective about the defendant’s five hospitalizations in mental institutions. Tr. 18. Thus, even under this Court’s test requiring police wrongdoing, the record indicates that the officers here had sufficient knowledge about the defendant’s mental incapacity to render the confession “involuntary.”

       Prior to establishing this rule excluding all involuntary confessions, we held the view that the Fifth Amendment, at bottom, served as “a guarantee against conviction on inherently untrustworthy evidence.” Stein v. New York, 346 U. S. 156, 192 (1953).

       In deciding to hear this case, this Court took “the unprecedented step of rewriting a prosecutor’s certiorari petition for him, enabling him to seek reversal on a ground he did not present himself.” Colorado v. Connelly, 474 U. S. 1050, 1051 (1986) (BRENNAN, J., dissenting from briefing order). The prosecutor expressly limited his petition to this Court to the issue of the suppression of the involuntary confession. Pet. for Cert. 15. Despite this, the Court directed the parties to brief the question of whether the defendant’s mental condition rendered his waiver of Miranda rights ineffective.
      In addition, the Court today decides yet another issue neither raised nor briefed by either party. It holds that the government may establish the defendant’s voluntary waiver of his Miranda rights by only a preponderance of the evidence.
      The Court also requires the state court to readdress a separate and independent basis for finding the waiver invalid. Quite apart from finding the Miranda waiver involuntary, the Colorado Supreme Court found that it was not an intelligent and knowing decision. Although unaffected by this Court’s new analysis of the voluntariness requirement, the state court is forced to reconsider this independent justification for its decision. Ante, at 171, n. 4. Such actions reinforce the Court’s “appearance of being not merely the champion, but actually an arm of the prosecution.” 474 U. S., at 1052.

       Contrary to this Court’s assertion, nowhere does the Lego Court state that “the voluntariness determination ... is designed to determine the presence of police coercion.” Ante, at 168. See Lego v. Twomey. The Lego Court did not distinguish coercion by police from coercion exerted from other sources.

       Furthermore, Lego established only that proof beyond a reasonable doubt was an inappropriately high standard. The decision has been criticized for never demonstrating affirmatively that the choice of the preponderance-of-the-evidence standard was more appropriate than the use of the clear-and-convincing-evidence standard. See Saltzburg, Standards of Proof and Preliminary Questions of Fact, 27 Stan. L. Rev. 271, 278 (1975). Here the Colorado Supreme Court chose to apply the clear-and-convincing-evidenee standard and the Lego analysis cannot justify rejection of this intermediate standard.


author:
Justice White
      Justice Marshall,

text:
    MUNRO, SECRETARY OF STATE OF WASHINGTON v. SOCIALIST WORKERS PARTY et al.
    No. 85-656.
    Argued October 7, 1986
    Decided December 10, 1986

      White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Powell, Stevens, O’Connor, and Scalia, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 200.

      James M. Johnson, Senior Assistant Attorney General of Washington, argued the cause for appellant. With him on the briefs were Kenneth O. Eikenberry, Attorney General, Edward B. Mackie, Chief Deputy Attorney General, and Timothy R. Malone, Assistant Attorney General.

      Daniel Hoyt Smith argued the cause and filed a brief for appellees.

      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union Foundation et al. by Jack D. Novik, Burt Neuborne and David J. Burman; and for the Libertarian Party of Washington by James J. Featherstone and Richard E. Gardiner.

   Justice White

delivered the opinion of the Court.

The State of Washington requires that a minor-party candidate for partisan office receive at least 1% of all votes cast for that office in the State’s primary election before the candidate’s name will be placed on the general election ballot. The question for decision is whether this statutory requirement, as applied to candidates for statewide offices, violates the First and Fourteenth Amendments to the United States Constitution. The Court of Appeals for the Ninth Circuit declared the provision unconstitutional. 765 F. 2d 1417 (1985). We reverse.

In 1977, the State of Washington enacted amendments to its election laws, changing the manner in which candidates from minor political parties qualify for placement on the general election ballot. Before the amendments, a minor-party candidate did not participate in the State’s primary elections, but rather sought his or her party’s nomination at a party convention held on the same day as the primary election for “major” parties. The convention-nominated, minor-party candidate secured a position on the general election ballot upon the filing of a certificate signed by at least 100 registered voters who had participated in the convention and who had not voted in the primary election. The 1977 amendments retained the requirement that a minor-party candidate be nominated by convention, but imposed the additional requirement that, as a precondition to general ballot access, the nominee for an office appear on the primary election ballot and receive at least 1% of all votes cast for that particular of-flee at the primary election. Wash. Rev. Code §29.18.110 (1985).

Washington conducts a “blanket primary” at which registered voters may vote for any candidate of their choice, irrespective of the candidates’ political party affiliation. A candidate seeking placement on the primary election ballot must declare his candidacy no earlier than the last Monday in July, and no later than the following Friday. Minor-party nominating conventions are to be held on the Saturday preceding this filing period. The primary election is held on the third Tuesday in September.

The events giving rise to this action occurred in 1983, after the state legislature authorized a special primary election to be held on October 11, 1983, to fill a vacancy in the office of United States Senator. Appellee Dean Peoples qualified to be placed on the primary election ballot as the nominee of appellee Socialist Workers Party (Party). Also appearing on that ballot were 32 other candidates. At the primary, Mr, Peoples received approximately nine one-hundredths of one percent of the total votes cast for the office, and, accordingly, the State did not place his name on the general election ballot.

Appellees (Peoples, the Party, and two registered voters) commenced this action in United States District Court, alleging that § 29.18.110 abridged their rights secured by the First and Fourteenth Amendments. The District Court entered judgment denying appellees relief, but the Court of Appeals for the Ninth Circuit reversed, holding that §29.18.110, as applied to candidates for statewide offices, was unconstitutional. The State filed a timely appeal with this Court, and we noted probable jurisdiction. 474 U. S. 1049 (1986).

Restrictions upon the access of political parties to the ballot impinge upon the rights of individuals to associate for political purposes, as well as the rights of qualified voters to cast their votes effectively, Williams v. Rhodes, 393 U. S. 23, 30 (1968), and may not survive scrutiny under the First and Fourteenth Amendments. In Williams v. Rhodes, for example, we held unconstitutional the election laws of Ohio insofar as in combination they made it virtually impossible for a new political party to be placed on the ballot, even if the party had hundreds of thousands of adherents. These associational rights, however, are not absolute and are necessarily subject to qualification if elections are to be run fairly and effectively. Storer v. Brown, 415 U. S. 724, 730 (1974).

While there is no “litmus-paper test” for deciding a case like this, ibid., it is now clear that States may condition access to the general election ballot by a minor-party or independent candidate upon a showing of a modicum of support among the potential voters for the office. In Jenness v. Fortson, 403 U. S. 431 (1971), the Court unanimously rejected a challenge to Georgia’s election statutes that required independent candidates and minor-party candidates, in order to be listed on the general election ballot, to submit petitions signed by at least 5% of the voters eligible to vote in the last election for the office in question. Primary elections were held only for those political organizations whose candidate received 20% or more of the vote at the last gubernatorial or Presidential election. The Court’s opinion observed that “[tjhere is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot — the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.” Id., at 442. And, in American Party of Texas v. White, 415 U. S. 767 (1974), candidates of minor political parties in Texas were required to demonstrate support by persons numbering at least 1% of the total vote cast for Governor at the last preceding general election. Candidates could secure the requisite number of petition signatures at precinct nominating conventions and by supplemental petitions following the conventions. Voters signing these supplemental petitions had to swear under oath that they had not participated in another party’s primary election or nominating process. In rejecting a First Amendment challenge to the 1% requirement, we asserted that the State’s interest in preserving the integrity of the electoral process and in regulating the number of candidates on the ballot was compelling and reiterated the holding in Jenness that a State may require a preliminary showing of significant support before placing a candidate on the general election ballot. American Party of Texas v. White, supra, at 782, n. 14.

Jenness and American Party establish with unmistakable clarity that States have an “undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot. . . .” Anderson v. Celebrezze, 460 U. S. 780, 788-789, n. 9 (1983). We reaffirm that principle today.

The Court of Appeals determined that Washington’s interest in insuring that candidates had sufficient community support did not justify the enactment of §29.18.110 because “Washington’s political history evidences no voter confusion from ballot overcrowding.” 765 F. 2d, at 1420. We accept this historical fact, but it does not require invalidation of §29.18.110.

We have never required a State to make a particularized showing of the existence of voter confusion, ballot overcrowding, or the presence of frivolous candidacies prior to the imposition of reasonable restrictions on ballot access. In Jenness v. Fortson, supra, we conducted no inquiry into the sufficiency and quantum of the data supporting the reasons for Georgia’s 5% petition-signature requirement. In American Party of Texas v. White, supra, we upheld the 1% petition-signature requirement, asserting that the “State’s admittedly vital interests are sufficiently implicated to insist that political parties appearing on the general ballot demonstrate a significant, measurable quantum of community support.” Id., at 782. And, in Storer v. Brown, supra, we upheld California’s statutory provisions that denied ballot access to an independent candidate if the candidate had been affiliated with any political party within one year prior to the immediately preceding primary election. We recognized that California had a “compelling” interest in maintaining the integrity of its political processes, and that the disaffiliation requirement furthered this interest and was therefore valid, even though it was an absolute bar to attaining a ballot position. We asserted that “[i]t appears obvious to us that the one-year disaffiliation provision furthers the State’s interest in the stability of its political system. ” Id., at 736. There is no indication that we held California to the burden of demonstrating empirically the objective effects on political stability that were produced by the 1-year disaffiliation requirement.

To require States to prove actual voter confusion, ballot overcrowding, or the presence of frivolous candidacies as a predicate to the imposition of reasonable ballot access restrictions would invariably lead to endless court battles over the sufficiency of the “evidence” marshaled by a State to prove the predicate. Such a requirement would necessitate that a State’s political system sustain some level of damage before the legislature could take corrective action. Legislatures, we think, should be permitted to respond to potential deficiencies in the electoral process with foresight rather than re-actively, provided that the response is reasonable and does not significantly impinge on constitutionally protected rights.

In any event, the record here suggests that revision of §29.18.110 was, in fact, linked to the state legislature’s perception that the general election ballot was becoming cluttered with candidates from minor parties who did not command significant voter support. In 1976, one year prior to revision of §29.18.110, the largest number of minor political parties in Washington’s history — 12—appeared on the general election ballot. The record demonstrates that at least part of the legislative impetus for revision of § 29.18.110 was concern about minor parties having such easy access to Washington’s general election ballot.

The primary election in Washington, like its counterpart in California, is “an integral part of the entire election process . . . [that] functions to winnow out and finally reject all but the chosen candidates.” Stover v. Brown, 415 U. S., at 735. We think that the State can properly reserve the general election ballot “for major struggles,” ibid., by conditioning access to that ballot on a showing of a modicum of voter support. In this respect, the fact that the State is willing to have a long and complicated ballot at the primary provides no measure of what it may require for access to the general election ballot. The State of Washington was clearly entitled to raise the ante for ballot access, to simplify the general election ballot, and to avoid the possibility of unrestrained factionalism at the general election. See id., at 786.

Neither do we agree with the Court of Appeals and appel-lees that the burdens imposed on appellees’ First Amendment rights by the 1977 amendments are far too severe to be justified by the State’s interest in restricting access to the general ballot. Much is made of the fact that prior to 1977, virtually every minor-party candidate who sought general election ballot position so qualified, while since 1977 only 1 out of 12 minor-party candidates has appeared on that ballot. Such historical facts are relevant, but they prove very little in this case, other than the fact that §29.18.110 does not provide an insuperable barrier to minor-party ballot access. It is hardly a surprise that minor parties appeared on the general election ballot before §29.18.110 was revised; for, until then, there were virtually no restrictions on access. Under our cases, however, Washington was not required to afford such automatic access and would have been entitled to insist on a more substantial showing of voter support. Comparing the actual experience before and after 1977 tells us nothing about how minor parties would have fared in those earlier years had Washington conditioned ballot access to the maximum extent permitted by the Constitution.

Appellees urge that this case differs substantially from our previous cases because requiring primary votes to qualify for a position on the general election ballot is qualitatively more restrictive than requiring signatures on a nominating petition. In effect, their submission would foreclose any use of the primary election to determine a minor party’s qualification for the general ballot. We are unpersuaded, however, that the differences between the two mechanisms are of constitutional dimension. Because Washington provides a “blanket primary,” minor-party candidates can campaign among the entire pool of registered voters. Effort and resources that would otherwise be directed at securing petition signatures can instead be channeled into campaigns to “get the vote out,” foster candidate name recognition, and educate the electorate. To be sure, candidates must demonstrate, through their ability to secure votes at the primary election, that they enjoy a modicum of community support in order to advance to the general election. But requiring candidates to demonstrate such support is precisely what we have held States are permitted to do.

Appellees argue that voter turnout at primary elections is generally lower than the turnout at general elections, and therefore enactment of § 29.18.110 has reduced the pool of potential supporters from which Party candidates can secure 1% of the vote. We perceive no more force to this argument than we would with an argument by a losing candidate that his supporters’ constitutional rights were infringed by their failure to participate in the election. Washington has created no impediment to voting at the primary elections; every supporter of the Party in the State is free to cast his or her ballot for the Party’s candidates. As was the case in Jenness v. Fortson, 403 U. S. 431 (1971), “candidates and members of small or newly formed political organizations are wholly free to associate, to proselytize, to speak, to write, and to organize campaigns for any school of thought they wish. . . .” Id., at 438. States are not burdened with a constitutional imperative to reduce voter apathy or to “handicap” an unpopular candidate to increase the likelihood that the candidate will gain access to the general election ballot. As we see it, Washington has done no more than to visit on a candidate a requirement to show a “significant modicum” of voter support, and it was entitled to require that showing in its primary elections.

We also observe that §29.18.110 is more accommodating of First Amendment rights and values than were the statutes we upheld in Jenness, American Party, and Storer. Under each scheme analyzed in those cases, if a candidate failed to satisfy the qualifying criteria, the State’s voters had no opportunity to cast a ballot for that candidate and the candidate had no ballot-connected campaign platform from which to espouse his or her views; the unsatisfied qualifying criteria served as an absolute bar to ballot access. Undeniably, such restrictions raise concerns of constitutional dimension, for the “exclusion of candidates . . . burdens voters’ freedom of association, because an election campaign is an effective platform for the expression of views on the issues of the day . . . Anderson v. Celebrezze, 460 U. S., at 787-788. Here, however, Washington virtually guarantees what the parties challenging the Georgia, Texas, and California election laws so vigorously sought — candidate access to a statewide ballot. This is a significant difference. Washington has chosen a vehicle by which minor-party candidates must demonstrate voter support that serves to promote the very First Amendment values that are threatened by overly burdensome ballot access restrictions. It can hardly be said that Washington’s voters are denied freedom of association because they must channel their expressive activity into a campaign at the primary as opposed to the general election. It is true that voters must make choices as they vote at the primary, but there are no state-imposed obstacles impairing voters in the exercise of their choices. Washington simply has not substantially burdened the “availability of political opportunity.” Lubin v. Panish, 415 U. S. 709, 716 (1974).

Jenness and American Party rejected challenges to ballot access restrictions that were based on a candidate’s showing of voter support, notwithstanding the fact that the systems operated to foreclose a candidate’s access to any statewide ballot. Here, because Washington affords a minor-party candidate easy access to the primary election ballot and the opportunity for the candidate to wage a ballot-connected campaign, we conclude that the magnitude of §29.18.110’s effect on constitutional rights is slight when compared to the restrictions we upheld in Jenness and American Party. Accordingly, Washington did not violate the Constitution by denying appellee Peoples a position on the general election ballot on November 8, 1983.

The judgment of the Court of Appeals for the Ninth Circuit is therefore reversed.

It is so ordered.

Justice Marshall,

with whom Justice Brennan joins, dissenting.

Limitations on ballot access burden two fundamental rights: “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Williams v. Rhodes, 393 U. S. 23, 30 (1968). These fundamental rights are implicated most clearly where minor-party access to the ballot is restricted. As we noted in Illinois Board of Elections v. Socialist Workers Party, 440 U. S. 173, 185 (1979), “[t]he States’ interest in screening out frivolous candidates must be considered in light of the significant role that third parties have played in the political development of the Nation.”

The minor party’s often unconventional positions broaden political debate, expand the range of issues with which the electorate is concerned, and influence the positions of the majority, in some instances ultimately becoming majority positions. And its very existence provides an outlet for voters to express dissatisfaction with the candidates or platforms of the major parties. Notwithstanding the crucial role minor parties play in the American political arena, the Court holds today that the associational rights of minor parties and their supporters are not unduly burdened by a ballot access statute that, in practice, completely excludes minor parties from participating in statewide general elections.

h — I

The Court fails to articulate the level of scrutiny it applies in holding that the Washington 1% primary vote requirement is not an unconstitutional ballot access restriction. While it recognizes that “[Restrictions upon the access of political parties to the ballot impinge upon the rights of individuals to associate for political purposes, as well as the rights of qualified voters to cast their votes effectively . . . and may not survive scrutiny under the First and Fourteenth Amendments,” ante, at 193, the Court'fails to indicate how much impingement would be too much or how great the State’s interest must be to limit ballot access to candidates who have demonstrated a particular level of popular support.

By contrast, the standard of review set forth in our prior decisions is clear: Whether viewed as a burden on the right to associate or as discrimination against minor parties, a provision that burdens minor-party access to the ballot must be necessary to further a compelling state interest, and must be narrowly tailored to achieve that goal. Illinois Board of Elections v. Socialist Workers Party, supra, at 184; American Party of Texas v. White, 415 U. S. 767, 780 (1974); Clements v. Fashing, 457 U. S. 957, 977, n. 2 (1982) (Brennan, J., dissenting); see also id., at 964-965 (plurality opinion). The necessity for this approach becomes evident when we consider that major parties, which by definition are ordinarily in control of legislative institutions, may seek to perpetuate themselves at the expense of developing minor parties. The application of strict scrutiny to ballot access restrictions ensures that measures taken to further a State’s interest in keeping frivolous candidates off the ballot do not incidentally impose an impermissible bar to minor-party access. See Elder, Access to the Ballot By Political Candidates, 83 Dick. L. Rev. 387, 406 (1979); Williams v. Rhodes, supra, at 32.

Appellant argues that there is no ballot access limitation here at all, and thus no need for the application of heightened scrutiny, because minor parties can appear on a primary ballot simply by meeting reasonable petition requirements. I cannot accept, however, as a general proposition, that access to any ballot is always constitutionally adequate. The Court, in concluding here that the State may reserve the general election ballot for “‘major struggles,”’ ante, at 196, quoting Storer v. Brown, 415 U. S. 724, 735 (1974), appears to acknowledge that, because of its finality, the general election is the arena where issues are sharpened, policies are hotly debated, and the candidates’ positions are clarified. Nonetheless, the Court deems access to the primary adequate to satisfy minor-party rights to ballot access, even though we have characterized the primary election principally as a “forum for continuing intraparty feuds,” Storer v. Brown, supra, at 735, rather than an arena for debate on the issues. Access to a primary election ballot is not, in my view, all the access that is due when minor parties are excluded entirely from the general election.

The Court’s conclusion stems from a fundamental misconception of the role minor parties play in our constitutional scheme. To conclude that access to a primary ballot is adequate ballot access presumes that minor-party candidates seek only to get elected. But, as discussed earlier, minor: party participation in electoral politics serves to expand and affect political debate. Minor parties thus seek “influence, if not always electoral success.” Illinois Board of Elections v. Socialist Workers Party, supra, at 185-186; cf. Williams v. Rhodes, supra, at 32 (States may not keep “all political parties off the ballot until they have enough members to win”). Their contribution to “diversity and competition in the marketplace of ideas,” Anderson v. Celebrezze, 460 U. S. 780, 794 (1983), does not inevitably implicate their ability to win elections. That contribution cannot be realized if they are unable to participate meaningfully in the phase of the electoral process in which policy choices are most seriously considered. A statutory scheme that excludes minor parties entirely from this phase places an excessive burden on the constitutionally protected associational rights of those parties and their adherents.

The Court suggests that any ballot access limitation that merely requires a preliminary showing of support is constitutionally acceptable. Ante, at 193. In past cases, however, we have acknowledged only that there is “an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot — the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.” Jenness v. Fortson, 403 U. S. 431, 442 (1971). It still remains for the State to demonstrate that the statute is “properly drawn,” employing the “least drastic means” to achieve the State’s ends. Illinois Board of Elections v. Socialist Workers Party, 440 U. S., at 185. The State fails, in my opinion, to do so here.

I am unconvinced that the Washington statute serves the asserted justification for the law: avoiding ballot overcrowding and voter confusion. The statute streamlines the general election, where overcrowding and confusion appear never to have been much of a problem before the 1977 amendments, at the expense of an already cumbersome primary ballot. Between 1907 and 1977, no more than six minor-party candidates ever appeared on the general election ballot for any statewide office, and no more than four ever ran for any statewide office other than Governor, suggesting that the ballot was never very crowded. 765 F. 2d 1417, 1420 (CA9 1985); cf. Williams v. Rhodes, 393 U. S., at 47 (Harlan, J., concurring in result) (“[T]he presence of eight candidacies cannot be said, in light of experience, to carry a significant danger of voter confusion”). But in the 1983 special election that prompted this lawsuit, appellee Peoples, instead of being placed on the general election ballot with 2 other candidates, was placed on the primary ballot along with 32 other candidates: 18 Democrats and 14 Republicans. 765 F. 2d, at 1420.

The Court notes that we have not previously required a State seeking to impose reasonable ballot access restrictions to make a particularized showing that voter confusion in fact existed before those restrictions were imposed. Ante, at 194-196. But where the State’s solution exacerbates the very problem it claims to solve, the State’s means cannot be even rationally related to its asserted ends.

The Court seems not at all troubled by the State’s insistence on a clear and unencumbered general election ballot and the State’s simultaneous willingness to employ “a long and complicated ballot at the primary.” Ante, at 196. The Court evidently deems legitimate the State’s decision to befuddle the voters in the only election that now matters to minor-party candidates and their adherents in order to guarantee a negligible increase in ballot clarity at the general election. Since minor parties are only allowed access to the primary election ballot, the discovery that the State’s asserted interest in an uncrowded ballot coincidentally extends only to the general election has constitutional significance. Rather than alleviating the harm the statute purports to prevent, the law simply shifts any possible harm to the primary election, which, deliberately or unintentionally, decreases the prospect of a minor-party candidate for statewide office qualifying for the general election.

Additionally, while a State may have an interest in eliminating frivolous candidates by requiring candidates to demonstrate “a significant modicum of support” to qualify for a place on the ballot, Washington already had a mechanism that required minor-party candidates to show such support, which it retained after its imposition of the 1% primary vote requirement in 1977. Appellees did not challenge the legitimacy of the convention and petition requirements in this case, but the fact that a mechanism for requiring some showing of support previously existed casts doubt on the need for the imposition of still another requirement on minor-party candidates. Moreover, the application of the 1% requirement suggests it is overbroad, avoiding frivolous candidacies only by excluding virtually all minor-party candidates from general elections for statewide office.

The only purpose this statute seems narrowly tailored to advance is the impermissible one of protecting the major political parties from competition precisely when that competition would be most meaningful. Because the statute burdens ap-pellees’ First Amendment interests, it must be subjected to strict scrutiny; because it fails to pass such scrutiny, it is unconstitutional.

I — i HH

Even if I were prepared to adopt the nebulous logic the Court employs in preference to the mandatory strict standard of review in this case, I could not reach the majority’s result. While this Court has in the past acknowledged that limits on minor-party access to the ballot may in some circumstances be appropriate, we have made equally clear that States may not employ ballot access limitations which result in the exclusion of minor parties from the ballot. See Williams v. Rhodes, supra. “The Constitution requires that access to the electorate be real, not ‘merely theoretical.’” American Party of Texas, 415 U. S., at 783, quoting Jenness v. Fortson, supra, at 439.

Under this reasoning, the validity of ballot access limitations is a function of empirical evidence: A minor party is not impermissibly burdened by ballot access restrictions when “a reasonably diligent independent candidate” could be expected to satisfy the ballot access requirement. Storer v. Brown, 415 U. S., at 742; see American Party of Texas, supra, at 784, n. 16. We have therefore sustained restrictions on ballot access where they did not impose “insurmountable obstacles to fledgling political party efforts to generate support among the electorate and to evidence that support within the time allowed.” 415 U. S., at 784. In American Party of Texas, we sustained a 1% petition signature requirement because it was apparent that it was, in practice, neither “impossible nor impractical,” id., at 783, for minor parties to demonstrate this level of support. Indeed, two of the minor parties that were plaintiffs in American Party of Texas qualified candidates for the general election ballot under the ballot access restrictions there at issue. Id., at 779. Similarly, in Jenness v. Fortson, 403 U. S., at 439, we approved Georgia’s 5% petition requirement for ballot access, in part relying on the fact that “[t]he open quality of the Georgia system [was] far from merely theoretical” because a candidate for Governor in 1966 and a candidate for President in 1968 had each gained access to the general election ballot through the nominating petition route.

Here, by contrast, Washington’s primary law acts as an almost total bar to minor-party access to statewide general election ballots. Since the revision of Wash. Rev. Code §29.18.110 in 1977, minor-party candidates have been, in the words of the Court of Appeals, “substantially eliminated from Washington’s general election ballot.” 765 F. 2d, at 1419. The Court of Appeals found that by 1984, only one minor-party candidate had been able to surmount the 1% barrier and earn the right to participate in the general election. Ibid. The legislation leading to this substantial elimination of minor parties from the political arena in Washington’s general elections should not be sustained as a legitimate requirement of a demonstration of significant support.

Since Williams v. Rhodes, this Court has recognized that state legislation may not ensure the continuing supremacy of the two major parties by precluding minor-party access to the ballot as a practical matter. Yet here the Court sustains a statute that does just that. In doing so, the Court permits a State to pre-empt meaningful participation by minor parties in the political process by requiring them to demonstrate their support in a crowded primary election. The Court thus holds that minor parties may be excised from the electoral process before they have fulfilled their central role in our democratic political tradition: to channel dissent into that process in a constructive fashion. Respectfully, I dissent.

       Wash. Rev. Code §29.24.020 (1976). A “major” political party was defined as “a political party of which at least one nominee received at least ten percent of the total vote east at the last preceding state-wide general election . . . .” §29.01.090(1). This section’s 10% requirement was amended in 1977 to 5%. § 29.01.090. A “minor” political party is “a political organization other than a major political party.” § 29.01.100.

       §29.24.040.

       § 29.24.020. Section 29.24.030(1) provides:
      “To be valid, a convention must:
      “(1) Be attended by at least a number of individuals who are registered to vote in the election jurisdiction for which nominations are to be made, which number is equal to one for each ten thousand voters or portion thereof who voted in the last preceding presidential election held in the election jurisdiction or twenty-five such registered voters, whichever number is greater . . . .”
      Appellees did not challenge this requirement in the courts below.

       Section 29.18.110 provides:
      “No name of a candidate for a partisan office shall appear on the general election ballot unless he receives a number of votes equal to at least one percent of the total number east for all candidates for the position sought: Provided, That only the name of the candidate who receives a plurality of the votes cast for the candidates of his party for any office shall appear on the general election ballot.”

       §29.18.200.

       §29.18.025.

       §29.24.020.

       §29.13.070.

       Mr. Peoples received 596 of the 681,690 votes cast in the primary.

       Memorandum from the Office of the Secretary of State to the legislature’s Conference Committee, App. A to Reply Brief for Appellant.

       Section 29.18.110 apparently poses an insubstantial obstacle to minor-party candidates for nonstatewide offices and independent candidates for statewide offices. Since 1977, 36 out of 40 such minor-party candidates have qualified for the general election ballot and 4 out of 5 independent candidates for statewide office have so qualified.

       See Socialist Workers Party v. Secretary of State, 412 Mich. 571, 317 N. W. 2d 1 (1982), in which the Michigan Supreme Court struck down a statute requiring a showing of voter support at a primary election in order to give new political parties access to the general election ballot. The court found that such “restrictions on access work to eliminate political and ideological alternatives at the time major party candidates are selected and before campaigning has identified and sharpened the issues facing the electorate.” Id., at 588, 317 N. W. 2d, at 6-7.

       This was the Libertarian candidate for State Treasurer in 1984. Brief for Appellees 9; App. 145-146. Neither the Democratic nor Republican candidates were opposed for their party nomination, and no other minor-party candidates participated in the primary. Sample Primary Election Ballot, Clark County, Washington, Sept. 18, 1984.