Appellants Lisa Griffin and Talia Holley were charged separately in Stephens County State Court with theft by taking for alleg *319 edly stealing merchandise from their employer, Cato’s, a clothing retailer. On May 27, 1997, both defendants filed motions to suppress written statements given to the store’s Loss Prevention Specialist, Mike Weaver. In separate orders dated June 13, 1997, the trial court refused to hold a pretrial hearing as to the voluntariness of the statements. Both defendants filed applications for discretionary appeals, which were granted by this Court. For the reasons set forth herein, we reverse the trial court’s determination that the defendants were not entitled to a hearing on the voluntariness of their statements and remand with directions to the court to conduct such hearing and make an express determination as to the voluntariness and, therefore, admissibility of the statements.
The relevant facts show that both defendants were employed by Cato’s. On January 14, 1997, Holley was taken to a small room and questioned for several hours by Weaver, who was a private employee of the store. During the questioning, Holley asserts that Weaver accused her of stealing from the store, screamed at her, and threw papers around the room. She claims that, when she insisted she was innocent, Weaver “threatened to have me locked up immediately unless I admitted to him that I had stolen from Cato’s.” As a result, she agreed to write out a confession “word for word as he said it.”
Griffin was questioned under similar circumstances the next day; she also asserts that Weaver screamed at her and threw papers. She claims that Weaver threatened that she “would be raising [her] baby from a detention center”; she was denied the opportunity to call her parents; and she was not permitted to leave until she confessed to stealing. She contends that her written confession resulted from this questioning.
In their signed confessions, both defendants admitted that they had placed merchandise that had not been paid for in shopping bags for customers; they refunded money to customers for merchandise that they knew had been stolen previously; and they personally took merchandise from the store without paying for it.
Both defendants were charged with theft by taking in separate accusations. They separately filed motions to suppress the statements on May 27, 1997, asserting that the statements were involuntary and, therefore, inadmissible under OCGA § 24-3-50. A motions hearing was held, during which the defendants were not permitted to present evidence regarding the voluntariness of their statements to Weaver. Instead, the trial court limited testimony to that which addressed whether or not Weaver was acting as a private or public official at the time of the questioning; Weaver was the only witness. Following his testimony, the trial court established that Weaver had no official, public capacity and was, instead, a privately employed agent of the store. Based on this finding, the trial court, citing
Gaston
*320
v. State,
The only issue before this Court is whether, under OCGA § 24-3-50, the defendants are entitled to a hearing and threshold determination by the trial court on the voluntariness of statements secured by private action before the evidence becomes admissible, or whether the issue of voluntariness is to be decided by the jury as a matter of weight and credibility.
OCGA § 24-3-50 reads as follows: “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” “A confession is an admission freely and voluntarily made by the accused whereby he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, and the share and participation he had in it. [Cit.]”
Pressley v. State,
There is no indication within this statute or in subsequent case law which limits the applicability of the statute to confessions made to state actors or agents. See generally
Mathis v. State,
The conclusion that the statute applies equally to state and private action is further supported by a historical analysis of the origins of the voluntariness requirement of the statute, which can be traced to the development of the English doctrine on voluntary confessions and the common law. Wigmore recognized that the doctrine developed in several stages. 3 Wigmore, Evidence, p. 291, § 817 (Chadbourn rev. 1970) (‘Wigmore”). Beginning in the 1500s, a confession was technically a guilty plea and was admissible, regardless of the circumstances under which it was acquired. Id. p. 292, § 818 (1). However, during the 17th and 18th centuries, the English courts began to recognize that confessions were often extracted by torture or *321 the promise of pardon, making such confessions inherently unreliable. Id. pp. 294-295, § 818 (3). “[Confessions vary in value according to the circumstances in which they are made. Some are clearly trustworthy; others are worthless.” Id. p. 302, § 820b. “Among the circumstances that may be fatal to the trustworthiness of a testimonial narration is the fact that it is uttered under the direct and palpable pressure of an inducement to substitute something else than the truth. The statement thus presented may appear so likely to be the result of such an influence that it will be rejected as testimony.” Id. p. 286, § 815. In Warickshall’s Case, 1 Leach Cr.C. 298 (1783), the emerging voluntariness doctrine “received a full and clear expression, and confessions not entitled to credit because of the promises or the threats by which they had been obtained were declared inadmissible in evidence. From this time on, the history of the doctrine is merely a matter of the narrowness or broadness of the exclusionary rule.” Wigmore, supra at p. 297, § 819.
As such, the primary justification of the English voluntariness doctrine on confessions was “preventing receipt of unreliable evidence.” Imwinkelried, supra at p. 790, § 2304; see also McCormick, Evidence, pp. 231-232, § 111 (1954). Since confessions had been forced by the crown, church, nobility, and powerful, no distinction was made between the value of confessions resulting from official state action and those secured by private individuals.
During the 18th century, the common law voluntariness doctrine was transplanted to the American colonies and “was the rule in the United States during most of the 19th century, although presumably without the anticonfession bias common in England during the early 1800s.” 1 Imwinkelried, supra at p. 791, § 2304. This doctrine applied to both private and official state action. Id. p. 791, § 2304, n. 16; see also id. p. 798, § 2305, n. 52.
The Georgia General Assembly first codified this common law doctrine as § 3716 of the original Code of 1863. As previously stated, during this period, coerced confessions were excluded in the United States because they were considered inherently unreliable as evidence, not because they violated some state or federal constitutional guarantee. Id. pp. 792-793, § 2304. In fact, the Georgia Constitutional Bill of Rights did not come into existence until the new Georgia Constitution was adopted in 1866. Ware, A Constitutional History of *322 Georgia, p. 122.
It was not until the middle of the 20th century that the United States Supreme Court looked to procedural fairness, based on federal constitutional due process guarantees, to protect individuals from oppressive state action and to exclude coerced confessions. Id. p. 793, § 2304; see, e.g.,
Miranda v. Arizona,
However, “[t]he states may, of course, employ standards more stringent than the due process requirements pronounced in the federal precedents, but standards less stringent are outlawed.” Wig-more, supra at pp. 307-308, § 820d.; see also
Gary v. State,
In this case, however, the State cited to Gaston v. State, supra, and asserted that the defendants were not entitled to any hearing, at any time, on the issue of voluntariness solely because no state action was involved in securing the confessions and the constitutional standards did not apply to the private individual’s actions. Gaston v. State involved a confession to a private individual, the victim. The defendant failed to present any evidence of coercion. As such, this Court decided that, absent state action, the defendant was not entitled to a voluntariness hearing because his constitutional rights were not violated. However, the defendant’s rights under OCGA § 24-3-50 were *323 not raised by the defense or considered by this Court in Gaston v. State. Therefore, the trial court in this case erred in relying on Gas-ton v. State in refusing to conduct a hearing, pursuant to OCGA § 24-3-50, on the voluntariness of the defendants’ confessions as to the threshold issue of the admissibility of the confessions. Under this statute, the voluntariness of the confessions is a legal determination that the trial court must make at some time prior to admission.
Further, although this Court recognizes that there is no
absolute
requirement that a voluntariness hearing be held outside the presence of the jury, it would be the better practice that it be done outside the presence of the jury as a matter of fairness and judicial economy.
2
See
Pinto v. Pierce,
Regardless of the procedural device employed by the court, both the State and the defendants must have the opportunity to put forth evidence regarding the circumstances surrounding the confession.
Cardell v. State,
Only upon such determination of voluntariness may the evidence be submitted to the jury for its consideration. However, the defense retains the right to present testimony and cross-examine witnesses regarding the circumstances surrounding the voluntariness of the confession. See
Crane v. Kentucky,
This case is remanded to the trial court with directions to hold a hearing, make an express threshold determination of voluntariness under OCGA § 24-3-50 on the record, and, only upon finding that the statements were voluntary, admit the defendants’ confessions.
Judgments reversed and remanded with directions.
Notes
“In the middle of the 1800s . . . counsel were able to advance seriously the argument ‘that the law assumes that a man may falsely accuse himself upon the slightest inducement.’ ” Wigmore, supra at p. 298, § 820a., quoting R. v. Baldry, 2 Den. C.C. 430 (1852). “This, -then, was certainly one of the reasons why, in one way or another, on principle or without principle, many judges came to set themselves against the use of confessions, and to exclude them on pretexts which were in themselves trivial and irrational but in fact represented a fixed judicial sentiment.” Wigmore, supra at p. 299, § 820a. (1).
We recognize that, if admissibility arguments are held in the presence of the jury and a confession is deemed to be inadmissible based on its involuntary nature, it is not automatically reversible error. However, curative instructions would be necessary to prevent the jury from considering the inadmissible evidence in reaching their verdict. If these instructions prove to be inadequate upon subsequent review, it may be reversible error under the circumstances.
This Court feels compelled to note that, even if the defendants’ assertions regarding the circumstances leading to their confessions, as they presently appear in the record, were undisputed, they do not appear to rise to a “slightest hope of benefit or remotest fear of injury” that would exclude the confessions as involuntary under OCGA § 24-3-50. See
Cooper v. State,