§ 5-1 Confession—Basic Charge
While the court generally determines the admissibility of evidence, as regards any alleged oral or written statement or confession by the defendant, the jury makes the ultimate determination of whether (1) the defendant made the alleged statement; (2) if he made the statement, whether it was made by the defendant voluntarily and of his own free will and accord; and (3) what weight, if any, should be given to an alleged statement of the defendant.
You must determine if the alleged statement or confession was the product of an essentially free and unconstrained choice by its maker. If you determine it was—and the burden is upon the State to prove this fact beyond a reasonable doubt—then you may give the statement such further consideration as you deem proper. If you determine the alleged statement or confession was not the free and voluntary willed expression of the defendant, then you should not consider it at all.
In determining whether a defendant's will was overcome in obtaining a statement or confession, you should consider both the characteristics of the defendant and the details of the interrogation, which is referred to in the law as the totality of the circumstances. Some of the factors you must/should/may consider are:
(1) the age and youth of the defendant;
(2) the mental ability or capacity of the defendant;
(3) his education or lack thereof;
(4) his I.Q. or intelligence;
(5) his background and environment;
(6) the advice, or lack thereof, to the defendant of his constitutional rights, including but not limited to the procedural safeguards known as the Miranda warnings concerning the right to remain silent; that any statement could be used against him in a court of law; the right to have a lawyer present; if an indigent, then a lawyer would be appointed to represent him without cost; and that he could stop making a statement at any time;
(7) the place and length of the detention; and
(8) the nature of the questioning.
You, the jury, must carefully scrutinize all of the surrounding circumstances. Before you give any weight to an alleged statement or confession, you must be satisfied beyond a reasonable doubt that it was made by the defendant uninfluenced by promise of reward, threat of injury, or diminution of his constitutional rights. You may not consider any statement or confession unless you find beyond a reasonable doubt that the statement or confession was freely and voluntarily given.
? Rivera v. State, 382 S.C. 606, 610, 677 S.E.2d 596, 598 (2009) ("The trial court erred in instructing the jury that a statement could be voluntary as to one offense but involuntary to another.").
? United States v. Wertz, 625 F.2d 1128 (4th Cir. 1980) (stating confession is involuntary and subject to suppression when induced by such duress and/or coercion, express or implied, that the accused's will has been overborne and his statement was not the product of free will); State v. Aleksey, 343 S.C. 20, 30, 538 S.E.2d 248, 253 (2000); State v. Davis, 309 S.C. 326, 342, 422 S.E.2d 133, 143 (1992), overruled on other grounds by Brightman v. State, 336 S.C. 348, 520 S.E.2d 614 (1999) ("Once the court determines that a defendant received and understood his rights, the court allows a confession into evidence. It then is for the jury ultimately to decide whether the confession was voluntary."); Id. (announcing the question whether law enforcement complied with requirements of Miranda is for the court, not the jury; once the court determines that a defendant received and understood his rights, the court allows a confession into evidence; it then is for the jury ultimately to decide whether the confession was voluntary); State v. Washington, 296 S.C. 54, 56, 370 S.E.2d 611, 612 (1988) ("Where voluntariness of a statement is at issue the trial judge must make an initial determination based upon the preponderance standard. If the statement is found to have been given voluntarily, it is then submitted to the jury, where its voluntariness must be established beyond a reasonable doubt."); State v. Adams, 277 S.C. 115, 283 S.E.2d 582 (1981), overruled on other grounds by State v....
