Chapter 8
Interrogations and
Confessions
Copyright © Allyn & Bacon 2007
Introduction: Getting Suspects to Talk
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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
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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:
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Compelled
In a criminal case
To be a witness
Against oneself
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A. What It Means to Be Compelled
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A person cannot be compelled when he or she
waives Fifth Amendment protection
If compulsion occurs, then the Fifth
Amendment applies
Compulsion can occur:
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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
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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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(continued)
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The following cannot be considered compelled:
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Questions of witnesses at trial
Questions of witnesses appearing before grand juries
Non-custodial questioning
Witnesses can be compelled because:
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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
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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
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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
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The government can compel answers from
defendants if:
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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:
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Use and derivative use immunity
Transactional immunity
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B. Distinguishing between Criminal
and Noncriminal proceedings
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Criminal proceedings can include more than
just criminal trials
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1. Some Complications
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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
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Juvenile delinquency hearings are criminal
Grand jury investigations
Capital sentencing hearings
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C. What It Means to Be a Witness
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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:
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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
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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
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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
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Confessions are protected by:
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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
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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).
Copyright © Allyn & Bacon 2007
(continued)
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This requires a case-by-case approach
Courts pay special attention to:
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The police conduct in question
Characteristics of the accused
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1. Police Conduct
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Physical brutality is prohibited
Other factors that are considered include:
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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
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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
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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:
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Deliberate elicitation
Formal criminal proceeding
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1. The Meaning of Deliberate
Elicitation
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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”
Copyright © Allyn & Bacon 2007
2. The Nature of Formal Criminal
Proceedings
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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
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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:
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Custody
Interrogation
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1. Custody
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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:
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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)
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Custody does not take place in the typical
traffic stop or Terry stop
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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
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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:
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Express questioning
The functional equivalent of a question
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(continued)
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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
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Miranda’s progeny has dealt with:
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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)
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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)
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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)
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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)
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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)
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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)
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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
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Generally speaking, a confession obtained in
violation of Miranda or some constitutional
provision will be excluded
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1. Confessions and Standing
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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
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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”
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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
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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)
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The statement should:
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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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