Crim B4

Chapter 8

Interrogations and Confessions

CHAPTER OVERVIEW

The due process voluntariness approach acts as a fallback and is always applicable. The Sixth and Fifth Amendments, by contrast, apply in specific circumstances, as described. It is possible (albeit rare) for all three provisions to come into play.

The second section summarizes how the Sixth Amendment impacts interrogations and confessions. Confessions are also governed by the Sixth Amendment’s right to counsel clause, but only when formal charges have been filed. If the police deliberately elicit information from a person who has already been charged with a crime, the charged individual has the right to have counsel present during questioning.

The third section explains the Fifth Amendment approach to interrogations and Miranda rights. The Fifth Amendment’s self-incrimination clause is frequently relied on in challenges to the constitutionality of confessions. However, for the Fifth Amendment to be successfully invoked, several requirements must be met. First, the police must compel a statement that is incriminating as well as testimonial. And, of course, the accused individual is the only one who can assert his or her Fifth Amendment protection against an unconstitutionally obtained confession.

The fourth section provides information to know when unconstitutionally obtained confessions are admissible in court to prove guilt. For a confession (or evidence thereby obtained) to be excluded, the person arguing for exclusion must have standing; that is, one person cannot seek to exclude the confession of another, even if that confession was obtained in violation of Miranda. Another situation in which improperly obtained incriminating statements may be admissible is when such statements are used for purposes of impeachment. A key restriction on this rule, however, is that the statement must be obtained voluntarily in the due process sense.

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. Despite these differences, a confession and an admission will be treated as virtually synonymous throughout this chapter.

Various Approaches to Confession Law

Confessions and admissions are governed by the Fifth Amendment. The rights that must be read to suspects placed under custody, as required by the Miranda decision (such as the right to remain silent), stem, in part, from the Fifth Amendment.

THE DUE PROCESS VOLUNTARINESS APPROACH

One approach to confessions and admissions can be termed the due process voluntariness approach. In general, when a suspect makes an involuntary statement, his or her statement will not be admissible in a criminal trial (or, as indicated earlier, in any other criminal proceeding) to prove his or her guilt.

In Brown v. Mississippi, 297 U.S. 278 (1936), police officers resorted to whippings and other brutal methods in order to obtain confessions from three African American defendants who were later convicted based on their confessions alone. The Supreme Court analyzed this case under the Fourteenth Amendment’s due process clause, and found the convictions invalid because the interrogation techniques had been so offensive.

Police Conduct

It has been made patently clear that physical brutality to coerce a confession violates the Fourteenth Amendment. As Justice Douglas stated in Williams v. United States, 341 U.S. 97 (1951), “Where police take matters into their own hands, seize victims, and beat them until they confess, they deprive the victims of rights under the Constitution.”

Characteristics of the Accused

The personal characteristics of the accused, such as disabilities or age level, are also factors that have been considered in determining whether a confession is voluntary. For example, in Haley v. Ohio, 332 U.S. 596 (1948), the Supreme Court reversed a 15-year-old boy’s confession because he was too young to have voluntarily confessed. In the Court’s words, “Mature men possibly might stand the ordeal from midnight to 5 a.m. but we cannot believe that a lad of tender years is a match for the police in such a contest.”

THE SIXTH AMENDMENT APPROACH

The Sixth Amendment also limits what the police can do to obtain confessions and admissions from criminal suspects. In particular, the Supreme Court’s decision in Massiah v. United States, 377 U.S. 201 (1964), established the rule 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.

Deliberate Elicitation

Deliberate elicitation is a tactic in which officers create a situation likely to induce a suspect into making an incriminating statement.

In Brewer v. Williams, 430 U.S. 387 (1977), the defendant was suspected of killing a 10-year-old girl. Before he was to be taken by police officers to another city, his attorneys advised him not to make any statements during the trip. The attorneys were also promised by the police officers that they would not question the defendant during the trip. Nevertheless, during the trip, one of the officers suggested that the girl deserved a “Christian burial.” The officer further mentioned that an incoming snowstorm would make it difficult to find the girl’s body. The officer then stated, “I do not want you to answer me. I don’t want to discuss it further. Just think about it as we’re riding down the road.” Shortly thereafter, the defendant admitted to killing the girl and directed the police to her body. The Court reversed the defendant’s conviction, arguing that the officer had “deliberately and designedly set out to elicit information from Williams [the defendant] just as surely as—and perhaps more effectively than—if he had formally interrogated him.”

In United States v. Henry, 447 U.S. 264 (1980), the Supreme Court focused on whether the officers “intentionally creat[ed] a situation likely to induce Henry [the defendant] to make incriminating statements without the assistance of counsel.”

Formal Criminal Proceedings

In Massiah v. United States, 377 U.S. 201 (1964), the Court held that the Sixth Amendment right to counsel applies once formal criminal proceedings have begun (a preliminary hearing, trial, or anything in between). Because Massiah was indicted, one might conclude that formal criminal proceedings once the indictment has been made.

Waiver of the Sixth Amendment Right to Counsel (Confessions)

Once an accused individual has asserted his or her Sixth Amendment right to counsel, any statements obtained from subsequent questioning would be inadmissible at trial unless the accused initiated the communication (Michigan v. Jackson, 475 U.S. 625 [1986]).

THE FIFTH AMENDMENT APPROACH

The Fifth Amendment lists a number of different rights in addition to the protection against self-incrimination that apply outside the scope of criminal procedure (for example, it also contains the so-called eminent domain clause, which prohibits the government from taking private property without just compensation). The provision that is relevant to criminal procedure is the self-incrimination clause, which states, in relevant part, that no person “shall be compelled in any criminal case to be a witness against himself.”

The Four Components of the Self-Incrimination Clause

The self-incrimination clause seems straightforward on its face, but it has been litigated extensively in the courts over the years. It can be broken into four specific components, each of which has been considered by the U.S. Supreme Court more than once. The four components are: (1) a person cannot be compelled (2) in any criminal case (3) to be a witness and (4) against oneself.

Compulsion.

The so-called fair examination rule ensures that witnesses at either a trial or a grand jury hearing can be compelled to answer questions once they waive their Fifth Amendment privilege and begin to testify.

A Criminal Case.

A murder trial is a classic case of a criminal proceeding, and would clearly fall within the definition of “a criminal case.” The courts usually focus on whether the case involves punitive sanctions, or consequences that are designed to punish someone, as opposed to compensating another for harm that was caused.

To Be a Witness.

A witness is generally understood to be anyone who observes an event. But the term has a much more technical meaning in the context of the Fifth Amendment. The Supreme Court has defined the term witness as “one who supplies testimonial evidence,” meaning that they might be called at trial to give testimony about what they observed.

Testimony comes in two forms: (1) that which is given at trial under oath and (2) that which is communicative information given by a person who is not under oath. However, the testimonial evidence requirement does not cover physical evidence (tangible property and the like). In other words, physical evidence is not protected by the Fifth Amendment.

Against Oneself.

The only person who can assert Fifth Amendment protection is the person being compelled to answer a question. According to the Supreme Court, “The Constitution explicitly prohibits compelling an accused to bear witness ‘against himself;’ it necessarily does not proscribe incriminating statements elicited from another. Compulsion upon the person asserting it is an important element of the privilege” (Couch v. United States, 409 U.S. 322 [1973]).

Miranda

In Miranda v. Arizona, 384 U.S. 436 (1966), the Court announced the following important rule: “[T]he 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.” This wording clearly established that the Fifth Amendment should serve as the basis for determining the constitutionality of a confession.

The Miranda warnings, which are most often read by police to an arrestee, often comprise a series of statements like this: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You also have the right to an attorney. If you cannot afford an attorney, one will be provided to you at no cost. Do you understand these rights as they have been read to you?”

Custody

In determining whether a person is in “custody,” the Supreme Court has held that “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation” (Berkemer v. McCarty, 468 U.S. 420 [1984]). The question of whether a person is in custody for Miranda purposes has been considered in a number of contexts. Examples include: (1) traffic and field stops, (2) questioning in the home, (3) questioning at the police station or equivalent facility, (4) questioning of juveniles, (5) questioning between a probation officer and probationer, and (6) questioning for minor crimes.

Traffic Stops.

A person is not in custody in the typical traffic stop. This was the decision reached in Berkemer. The same applies to stops not involving vehicles. Miranda permits law enforcement officers to engage in “[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.” With regard to Terry stops in particular, “[t]he comparatively nonthreatening character of [investigative] detentions explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda.”

Questioning in the Home.

It is possible for questioning in one’s home to rise to the level of custody. In Orozco v. Texas, 394 U.S. 324 (1969), the Supreme Court declared that a man was in custody when four police officers woke him in his own home and began questioning him.

Questioning at a Police Station.

Questioning at the police station or an equivalent facility can also rise to the level of custody. However, not all stationhouse questioning can be considered custodial. Consider Oregon v. Mathiason, 429 U.S. 492 (1977), a case involving a man who voluntarily agreed to meet officers at the police station for questioning. He admitted to involvement in a crime but later argued that his visit to the stationhouse was custodial because of its inherently coercive nature.

In a later case, California v. Beheler, 463 U.S. 1121 (1983), the Court offered some clarification concerning its decision in Mathiason. It pointed out that Miranda is not implicated “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.”

Questioning of Juveniles.

If the person questioned is a juvenile, the police need to tread carefully. As the Court noted in J.D.B. v. North Carolina, 564 U.S. ____ (2011), “a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go.”

Questioning of Probationers.

Custody questions have come up in the context of probation officer/probationer meetings. In Minnesota v. Murphy, 465 U.S. 420 (1984), a probationer was ordered to meet with his probation officer for questioning. During the meeting, the probationer confessed to a rape and a murder. He later argued that he should have been advised of his Miranda rights, but the Court disagreed, holding that Murphy’s “freedom of movement [was] not restricted to the degree associated with formal arrest.”

Minor Offenses.

The fact that the offense being investigated is minor does not appear to affect the analysis.

Interrogation

The second major component of Miranda is interrogation.

· Teaching Note: Emphasize that custody by itself is not enough to require that the Miranda warnings be given. For a person to be afforded Fifth Amendment protection—and particularly, to be advised of his or her right to remain silent—he or she must be subjected to interrogation.

Miranda defined interrogation as “questioning initiated by law enforcement officers.” Then, in Rhode Island v. Innis, 446 U.S. 291 (1980), the Court noted that interrogation “must reflect a measure of compulsion above and beyond that inherent in custody itself.” Thus, any questions that tend to incriminate—that is, those that are directed toward an individual about his or her suspected involvement in a crime—are considered interrogation.

As defined in Innis, 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.”

Other Miranda Issues

A number of important Supreme Court cases have hinged on other significant issues, including (1) the substance and adequacy of the Miranda warnings and (2) waivers of Miranda.

Substance and Adequacy of the Warnings.

In some cases, the police do not follow the exact wording of the warnings specified in Miranda. There is a long line of cases involving people who have sought to have their confessions excluded at trial because all or some of the Miranda warnings were not read adequately. For example, in California v. Prysock, 453 U.S. 355 (1981), a juvenile defendant was told, “You have the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning.” The defendant was then told that he had the right to a court-appointed lawyer but not that one would be provided for him if he was indigent.