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Chapter 8 Interrogations and Confessions
Copyright © Allyn & Bacon 2007
Introduction: Getting Suspects to Talk
This chapter turns attention away from the Fourth Amendment The focus is on interrogation and confession law as governed by the Fifth, Sixth, and Fourteenth Amendments to the U.S Constitution
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I. THE FIFTH AMENDMENT AND SELFINCRIMINATION
The Fifth Amendment deals with more than confessions/interrogations (e.g., double jeopardy) This chapter focuses on the self-incrimination clause, which states that no person “…shall be compelled in any criminal case to be a witness against himself…” There are four components of the self-incrimination clause:
Compelled In a criminal case To be a witness Against oneself
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A. What It Means to Be Compelled
A person cannot be compelled when he or she waives Fifth Amendment protection If compulsion occurs, then the Fifth Amendment applies Compulsion can occur:
During questioning, in or out of court In written documents When a person is threatened with noncriminal sanctions for failing to testify
Prosecutorial grants of immunity are important here as well
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1. Compulsion during Questioning
If a person is arrested and interrogated after asserting Fifth Amendment protection, then the Fifth Amendment will be violated Defendants in their own criminal trials cannot be compelled to testify under any circumstances Once the defendant “takes the stand,” he or she can be compelled to testify The “fair examination rule” ensures that witnesses who “take the stand” can be compelled to answer questions
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The following cannot be considered compelled:
Questions of witnesses at trial Questions of witnesses appearing before grand juries Non-custodial questioning
Witnesses can be compelled because:
They are not the targets of the investigation Testimony in court or before a grand jury is less likely to be considered compelled than questioning, say, at a police station
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2. Compulsion via Written Documents
Information on certain forms can be considered compelled (e.g., tax returns) Requiring certain groups to register with the federal government can be considered compelled The documentation must provide “substantial hazards of self-incrimination” before the Fifth Amendment can be violated
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3. Threats of Noncriminal Sanctions
In Garrity v. New Jersey (1967), the Supreme Court held that the Fifth Amendment was violated when police officers were told that they would be discharged if they failed to answer questions in an investigation of police corruption In Lefkowitz v. Turley (1973), the Court declared that a New York statute requiring public contractors either to waive immunity or to suffer forfeiture of state contracts was unconstitutional In South Dakota v. Neville (1983), the Supreme Court upheld a statute which required suspected drunken drivers to take a blood-alcohol test or risk revocation of their driver’s license
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4. Grants of Immunity
The government can compel answers from defendants if:
The information sought is not related to a criminal matter involving the defendant Immunity is offered Other guarantees are provided to the defendant
A person cannot claim self-incrimination if his/her testimony is rendered noncriminal by a grant of immunity Two types of immunity are common:
Use and derivative use immunity Transactional immunity
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B. Distinguishing between Criminal and Noncriminal proceedings
Criminal proceedings can include more than just criminal trials
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1. Some Complications
To distinguish between criminal and noncriminal proceedings, courts usually focus on whether “punitive” sanctions could result from the proceeding More recently, courts focus on whether a hearing serves a retributive or deterrent function Resulting decisions
Juvenile delinquency hearings are criminal Grand jury investigations Capital sentencing hearings
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C. What It Means to Be a Witness
The term “witness” is synonymous with one who supplies “testimonial evidence” Testimonial evidence is that which is given under oath The testimonial evidence requirement does not cover physical evidence (e.g., murder weapons) Interestingly, the government can force the accused to:
wear a particular outfit Submit to a blood sample Participate in a lineup Produce a handwriting or voice exemplar Appear in court Make a certain gesture
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D. What it Means to Be a Witness against Oneself
The only person who can assert Fifth Amendment protection is the person being compelled In Couch v. United States (1973), the Fifth Amendment did not protect a business owner whose accountant turned over documents which incriminated the owner
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II. INTERROGATIONS AND CONFESSIONS
A confession occurs when a person implicates himself or herself in criminal activity following police questioning and/or interrogation An admission, by contrast, need not be preceded by police questioning; a person can simply admit to involvement in a crime without any police encouragement Both are treated synonymously in this chapter
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A. Various Approaches to Confession Law
Confessions are protected by:
The Fifth Amendment’s self-incrimination clause The Sixth Amendment’s right to counsel clause The Fourteenth Amendment’s due process clause
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B. The Due Process Voluntariness Approach
When a suspect makes an involuntary statement, his or her statement will not be admissible in a criminal trial (or in any other criminal proceeding) to prove guilt. This is known as the due process voluntariness approach to confessions and interrogations A confession is involuntary when, under the “totality of circumstances that preceded the confessions,” the defendant is deprived of his or her “power of resistance” (Fikes v. Alabama, 1957).
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(continued)
This requires a case-by-case approach Courts pay special attention to:
The police conduct in question Characteristics of the accused
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1. Police Conduct
Physical brutality is prohibited Other factors that are considered include:
Psychological pressures Promises of leniency Deception
Rarely is one of these enough to result in an involuntary confession
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2. Characteristics of the Accused
Conditions such as disabilities and immaturity have resulted in excluded confessions In some instances fatigue and pain (e.g., as a result of an injury) can also render an accused’s statement involuntary In short, voluntariness is overcome when (1) the police subject the suspect to coercive conduct and (2) the conduct is sufficient to overcome the will of suspect
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C. The Sixth Amendment Approach
Massiah v. United States (1964) resulted in the decision that the Sixth Amendment’s guarantee to counsel in all “formal criminal proceedings” is violated when the government “deliberately elicits” incriminating responses from a person This requires focusing on the meaning of:
Deliberate elicitation Formal criminal proceeding
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1. The Meaning of Deliberate Elicitation
In United States v. Henry (1980), the Supreme Court defined deliberate elicitation in terms of whether the officers “intentionally creat[ed] a situation likely to induce Henry to make incriminating statements without the assistance of counsel”
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2. The Nature of Formal Criminal Proceedings
In Kirby v. Illinois (1972), the Supreme Court said that, for purposes of the Sixth Amendment, criminal proceedings include the following: (1) formal charge; (2) preliminary hearing; (3) indictment; (4) information; (5) or arraignment
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D. The Miranda Approach
In Malloy v. Hogan (1964), the Supreme Court held that the Fifth Amendment applies to the states In Miranda v. Arizona (1966), the Supreme Court held that the prosecution “may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination” It is necessary to define:
Custody Interrogation
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1. Custody
Custody applies when “a person has been taken into custody or otherwise deprived of his freedom of action in any significant way” Four type of police-citizen encounters have been dealt with by the Supreme Court:
Traffic and field stops Questioning in the home Question in the police station or equivalent facility Questioning for minor crimes
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(continued)
Custody does not take place in the typical traffic stop or Terry stop
Note that the term “custody” here is only concerned with Miranda rights
Questioning in one’s own home can be considered custodial Concerning police stations, custody does not exist “if the suspect is not placed under arrest, voluntarily comes to the police station, and is allowed to leave unhindered by the police after a brief interview” (California v. Beheler, 1983)
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2. Interrogation
Miranda defined interrogation as “questioning initiated by law enforcement officers” Then, in Rhode Island v. Innis (1980) the Court noted that interrogation “must reflect a measure of compulsion above and beyond that inherent in custody itself” Innis called attention to:
Express questioning The functional equivalent of a question
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(continued)
The functional equivalent of a question includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect”
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3. Other Miranda Issues
Miranda’s progeny has dealt with:
Substance and adequacy of the warnings Miranda waivers Questioning after one asserts Miranda protection Public safety exception to Miranda
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(Substance and Adequacy of the Warnings)
Miranda warnings must be read properly Withheld information can result in exclusion of a confession, but the Supreme Court held in California v. Prysock (1981) that “Miranda itself indicates that no talismanic incantation was required to satisfy its strictures” Inconsequential variations in the warnings are thus acceptable
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(Waiver of Miranda)
Government must show valid waiver In Colorado v. Connelly (1986), the Court held that the government need only show the validity of a waiver by a “preponderance of evidence” In Fare v. Michael C. (1979), the Court held that the “totality of the circumstances approach is adequate to determine whether there has been a waiver” Waiver does not need to be express Waiver must be knowing, intelligent, and voluntary
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(Questioning after Assertion of One’s Right to Remain Silent)
As a general rule, questioning must cease once an accused asserts his or her right to remain silent Exception: In Michigan v. Mosley (1975) the Supreme Court permitted questioning after an assertion of Miranda
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(The Public Safety Exception to Miranda)
If public safety is in jeopardy, no warnings are required Objective test is used to determine whether public safety is in jeopardy
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(The Supreme Court Revisits Miranda)
18 U.S.C. Section 3501, passed in the wake of Miranda, states that in any federal prosecution a confession “shall be admissible in evidence if it is voluntarily given” In Dickerson v. United States (2000), the Supreme Court held: “We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves”
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(The Latest on Miranda)
Miranda doesn’t apply if a person isn’t charged with a crime Miranda warnings must be given before interrogation commences
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F. The Exclusionary Rule and Confession Analysis
Generally speaking, a confession obtained in violation of Miranda or some constitutional provision will be excluded
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1. Confessions and Standing
For a confession (or evidence thereby obtained) to be excluded, the person arguing for exclusion must have standing (Couch v. United States, 1973)
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2. Confessions and Impeachment
In Harris v. New York (1971), the Supreme Court held that confessions obtained in violation of Miranda can be used for impeachment purposes The prosecution cannot introduce evidence of an accused’s out-of-court silence for impeachment purposes (Doyle v. Ohio, 1976).
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3. Confessions and “Fruit of the Poisonous Tree”
In United States v. Bayer (1947), the Supreme Court held that the Fourth Amendment fruit of the poisonous tree doctrine “did not control” the admissibility of improperly obtained confessions In Oregon v. Elstad (1985), the Court made clear that evidence obtained from violations of Miranda is admissible, but only if the confession leading the police to physical evidence is voluntarily obtained
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III. THE IMPORTANCE OF DOCUMENTING A CONFESSION
The police need to follow specific procedures for documenting and reporting confessions The police should document every interrogation and even keep an interview log, which is a document containing information about the individuals involved in the interrogations as well as actions taken by both sides A signed statement from the accused should also be secured
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(continued)
The statement should:
Include the identity of the suspect, the investigators, and the crime involved; Include a description, in language the suspect can understand, of the details of the crime, what the suspect did and how he or she did it; Be carefully reviewed with the suspect, even read aloud, so its contents are clear; and Be signed by the suspect, the officer conducting the interrogation, and at least one witness, preferably another officer
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