Is the confession admissible?

I haven't heard anything, but my guess is that the ploy here is to suppress the original statement because no lawyer was present at the time. Even though the confession was passed on to the police, it was originally made without legal council, hence, arguably, inadmissible. So, circumvate the confession, go for the insanity plea. It's sick, but it works apparently.

he was only taking the rap for O.J.

The Fifth Amendment protects a defendant from coerced self-incrimination (e.g., a custodial interrogation by law enforcement officers without the benefit of Miranda warnings).

See ILLINOIS v. PERKINS, 496 U.S. 292 (1990) (where a suspect does not know that he is conversing with a government agent, pressures that weaken the suspect's will do not exist and there is no violation of the Fifth Amendment).

The Sixth Amendment protects a defendant's right to counsel at all critical stages of a prosecution.

In Illinois v. Perkins, the Supreme Court stated:

"This Court's Sixth Amendment decisions in Massiah v. United States, 377 U.S. 201 (1964), United States v. Henry, 447 U.S. 264 (1980), and Maine v. Moulton, 474 U.S. 159 (1985), also do not avail respondent. We held in those cases that the government may not use an undercover agent to circumvent the Sixth Amendment right to counsel once a suspect has been charged with the crime. After charges have been filed, the Sixth Amendment prevents the government from interfering with the accused's right to counsel. Moulton, supra, at 176. In the instant case no charges had been filed on the subject of the interrogation, and our Sixth Amendment precedents are not applicable."

I don't think that Hacking was charged with murdering his wife at the time that he confessed to his brothers.

Ruling out violations of the Fifth and Sixth Amendments, that only leaves a possible, but highly unlikely and extremely weak claim for a due process violation under the Fourteenth Amendment.

Not being an American, or a lawyer, is this the section you refer to for the weak claim under the fourteenth amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Due Process
Cav:

For a possible Due Process violation under Section 1 of the Fourteenth Amendment, check out the concurring opinion in Illinois v. Perkins.

If the older brothers were acting as government agents (at the behest of law enforcement officers) and used their influence to solicit a confession from their mentally defective younger brother while he was a patient in a mental health institution--maybe (grasping at straws) his attorney can argue that the means of obtaining the confession as "applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment."

Remember, the accused always lived in his brothers' shadows and concocted all kinds of fictionalized success to compete with their perceived greatness--and maybe the older brothers preyed upon their brother's mental illness to get the confession. That's the best I can come up with off the top of my head. I think it will be impossible to get a court to suppress the confession if there was absolutely no government agent standing behind the brothers and prodding them to talk to their brother.

Hmm...I'll be watching and waiting to see how this comes out.

Could there be a hearsay argument?

not hearsay


An admission by a party-opponent is not hearsay as defined by law.

EDIT:

See, e.g., State of Utah v. Vargas:

III. OUT-OF-COURT STATEMENTS

¶35 Vicki Pubela testified at trial that Vargas told her, about two years before the murder, he would kill his wife if she ever left him. Gary Heward, a deputy Weber County attorney, testified that less than three months before the murder, Vargas, referring to the O.J. Simpson murder trial, told him that "if a black man can do that and get away with it, so can a Mexican." Vargas argues that the trial court committed reversible error in failing to suppress these statements. . . .

¶36 As a general rule, an out-of-court statement "offered in evidence to prove the truth of the matter asserted" is hearsay and is inadmissible. Utah R. Evid. 801(c) . . .

Rule 801(d)(2)(A) removes an "admission by party-opponent" from the definition of hearsay: "A statement is not hearsay if . . . [t]he statement is offered against a party and is . . . the party's own statement . . . ." Utah R. Evid. 801(d)(2) (emphasis added). In this case, the out-of-court statements were made by Vargas himself. Because Pubela and Heward were testifying of Vargas's own statement, the statements were admissions of a party-opponent under rule 801(d)(2)(A) and, therefore, not hearsay.

http://www.utcourts.gov/opinions/supopin/vargas.htm

me too!


Me too! I love these types of technical criminal procedure questions. Even if the confession is suppressed, there might be enough circumstantial evidence to make a case against him anyway. We'll see.

Sounds to me like the mental illness argument is a red herring, probably something being said for the benefit of the cameras. This is matter that, like OJ's, is going to be tried in the press long before the actual trial even begins.

So Hacking's attorney could just be looking to taint the jury pool as much as possible. Not a very nice tactic, but still permissible, and if it becomes one of these situations wherein it seems to be taking forever to select a jury (the public tends not to like long, drawn-out proceedings when there's strong public opinion that the defendant is guilty), the defense might be able to take advantage of the judge's and prosecution's exasperation, and get some more favorable jurors selected.

As for the statements, I think you're right, that they're going in unless it can be shown that the brother(s) was/were government agent(s). Right now that proposition seems doubtful at best.

Hacking might be an oddball, but I think he falls far short of being so incompetent that he failed to see the wrongfulness of his conduct. (I'm presuming that Hacking actually killed his wife based on his own confession.) His disposal of the body and his subsequent conduct to cover-up the killing (including the purchase of a new mattress and reporting his wife as missing at about the same time) certainly indicates that he knew that killing her was wrong.

I also think the "mental illness" is a red herring. The man worked in a psychiatric ward and probably knew that his only hope in escaping a murder conviction was a diminished capacity or mental incompetency plea. Had he ever walked naked in public before he became a suspect in his wife's disappearance? I think not. It is highly possible that he was just putting on a show to appear mentally ill in attempt to mitigate his own criminal conduct.

Bingo. Reporting her missing, etc., speaks of a mind that understands that he's got to "look" a certain way in order to try to build a defense. It smells an awful lot like the acts of someone who premeditated the crime. Being wacky doesn't make someone mentally ill; there's plenty of room for quirkiness within the bounds of sanity.