Chapter 8
Admissions and Confessions
Criminal Evidence
6th Edition
Norman M. Garland
Confessions and Admissions
o Confessions and admissions frequently
overlap and it is sometimes difficult to
decide if a statement is an admission or
a confession.
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The Distinction Between a
Confession and an Admission
o According to one court:
o A confession is an admission of the crime
itself.
o An admission concerns only some specific
fact which, in turn, tends to establish guilt or
some element of the offense.
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United States Supreme Court: Imposed
Requirements on Law Enforcement Officers
o The United States Supreme Court has
imposed requirements on law
enforcement officers in connection with
admissions and confessions stemming
from Fourth, Fifth, Sixth, and Fourteenth
Amendments.
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Admissions
o Statements or acts by an accused before trial
that are not an acknowledgment of guilt, but
do link the accused with a crime or are in
some ways incriminating, are admissions.
o The accused need not intend to incriminate
himself or herself for the statement or act to
be an admission.
o An admission may be a simple
acknowledgment of being at the crime
scene, of being acquainted with the victim of
a crime, or even a denial that the defendant
was at the scene.
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Acts as Admissions
o Acts are also classified as a form of
admission if they are inconsistent with
an accused's innocence.
o Thus, acts such as trying to escape
detection and arrest, or to hide a crime,
are admissions and may be introduced
against the accused at a trial.
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Admission by Silence or
Accusatory Statements
o The defendant's silence in
circumstances where a person would
normally speak out may be an
admission.
o Whether or not this silence may be
introduced as an admission of guilt
depends upon the conditions under
which the silence occurred.
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Implied Admission of Guilt or
Adoptive Admission
o If a person makes a statement in front of
another, accusing him or her of
committing a crime and no reply or
denial is made, this is considered to be
an implied admission of guilt or
adoptive admission.
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Statements by an Accused
While in Police Custody
o A statement made by a person while in
police custody is usually not an
adoptive admission because a person
in custody is not required to say
anything.
o Even if a suspect is not in custody, just
being in the presence of officers and
under suspicion is enough to cause a
reasonable person to remain silent in
the face of an accusation.
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U.S. Supreme Court and
Confessions
o In the twentieth century, the United
States Supreme Court developed the
exclusionary rule and continues to
develop complex and strict rules
pertaining to the admissibility of
confessions in evidence.
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Free and Voluntary Confessions
o For a confession to have been freely and
voluntarily made, the person making the
confession must have been in a position to
exercise complete mental freedom at the
time the confession was made.
o The courts have been strict in their
interpretation of what will affect this
“complete mental freedom” and have ruled
that pressure applied to induce a confession
will be considered as an interference with
mental freedom and cause the confession to
be excluded from evidence at trial.
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The Test for Freely and Voluntarily
The requirement that the confession must be
given freely and voluntarily satisfies two
concerns of modern jurisprudence.
o First, unless the confession is so given,
there may be a doubt about the
fundamental fairness of its use at trial
against the accused.
o Second, unless it is given freely and
voluntarily, the accused’s right against
self-incrimination may be violated.
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Development of Additional
Requirements: McNabb-Mallory Rule
o First, the high Court, developed a per se rule,
applicable only in the federal courts. This rule
excluded potentially coerced confessions, by
addressing the practice of detaining arrested
persons in isolation for an extended period of
time.
o Admissibility did not depend on whether the
confession was voluntary, but was based on
whether an arrested suspect was brought before
a committing magistrate for arraignment
“without unnecessary delay” following the
suspect's arrest.
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Development of Additional
Requirements
o The U.S. Supreme Court also extended
the basis for a finding of a coerced
confession, from threatened and actual
physical coercion to psychological
coercion as well.
o In 1944, in Ashcraft v. Tennessee, the
Court held that 36 hours of continuous
interrogation alone was enough to
render the accused's confession
coerced.
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Escobedo v. Illinois
o In 1964, in Escobedo v. Illinois, the
Supreme Court found that a police
interrogation of a suspect violated the
Sixth Amendment right to counsel.
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Massiah v. United States
o Also in 1964, the Court held in Massiah
v. United States that police interrogation
(deliberate elicitation) of an indicted
person in the absence of an attorney (or
waiver by the accused) is a violation of
the Sixth Amendment's right to counsel.
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Miranda v. Arizona
Miranda requires the police to warn a
suspect in custody:
o of his or her right to remain silent
o that anything the suspect says might be
used in court against the suspect
o that the suspect has the right to have
counsel present during questioning
o that counsel will be appointed for the
suspect if the suspect cannot afford
counsel
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Violation of Miranda
o In the absence of these Miranda
warnings and a waiver of the rights to
remain silent and to counsel during
police interrogation, any statement
obtained by the police cannot be used
against the accused at trial, even if the
statement is not coerced.
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Dickerson v. United States
o The Court in Dickerson confirmed that
the United States Constitution requires
that Miranda procedures be followed
by state and federal law enforcement
professionals.
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Confessions Excluded Due to Violation
of Due Process of Law: Coerced
Confessions
o A coerced confession could be
unreliable!
o Even if the confession is reliable, it
should be excluded from evidence
because the police should “obey the
law while enforcing the law.”
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The Totality of the Circumstances
o Underlying all of the reasons for
excluding a coerced confession is the
fundamental requirement that a
confession must be freely and
voluntarily given.
o The test for voluntariness, according to
the Supreme Court of the United States,
is the totality of the circumstances.
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Confessions Coerced by
Psychological Pressure
o Overcoming the will of a suspect can
be achieved just as effectively by
application of psychological pressure
as it can by application of physical
force.
o Psychological pressure, or “mental
stress,” takes many forms.
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Spano v. New York
The confession was obtained in violation of the
Due Process Clause of the Fourteenth
Amendment based on a totality of the
circumstances, particularly relying on four
factors:
o The official pressure from a barrage of
questioning by several different people.
o The effect of denying Spano's requests to speak
with his attorney.
o The fatigue resulting from the interrogation's
length and time of night.
o The sympathy falsely created by Bruno.
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Exclusion of Confessions Due to
Violation of Rights Secured under
Miranda v. Arizona
o Perhaps no legal decision
is more widely known by
people in all walks of life
than Miranda v. Arizona—
the case that imposed the
requirement that police
give warnings to criminal
suspects of their rights to
remain silent and to have
an attorney present
during questioning.
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Royalty-Free/CORBIS
The Miranda Rule
o The Miranda rule requires that a law
enforcement officer read Miranda warnings to
a suspect before custodial interrogation.
o The officer must advise the suspect that the
suspect has the right to remain silent, that
anything the suspect says can and will be
used against the suspect at trial, that the
suspect has a right to an attorney being
present during questioning, and that if the
suspect cannot afford an attorney, one can
be provided at no cost to the suspect.
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Police Departments Issued Credit
Card-Sized Miranda Cards
o Most police departments issue credit
card-sized Miranda cards that list the
rights that must be read to and waived
by the suspect before questioning may
begin.
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Translators Should Administer Warnings
in the Language Other Than English
o In those situations where the officer is
faced with a suspect who either does
not speak English or where English is a
second language, a different problem is
presented.
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Miranda
o Today, the Miranda requirements apply to
custodial interrogations of suspects by law
enforcement officers.
o When an officer has a suspect in custody and
engages in interrogation, the officer must
inform the suspect of his or her Miranda rights,
and the officer cannot interrogate the suspect
unless he or she waives those rights.
o If the suspect invokes his or her rights at any
time, the officer must cease interrogation and
scrupulously honor the rights the suspect
asserts.
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Relevant Topics for Discussion
Relating to the Miranda Rules
o What is custody for purposes of Miranda?
o What is interrogation for purposes of
Miranda?
o What constitutes a valid waiver of Miranda
rights?
o What constitutes a valid waiver after a
suspect has asserted his or her rights?
o What is the effect of the exclusionary rule on
statements taken in violation of Miranda?
o What are exceptions to the Miranda rule?
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What Constitutes Custody for
Purposes of Miranda?
o Custody results when a police officer
restrains a person in such a way
consistent with formal arrest, regardless
of the situation or intent of the officer.
o Anytime a person is taken into custody,
the officer is required to give Miranda
warnings.
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Custody + Questioning =
Miranda + Waiver
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What Constitutes Interrogation
for Purposes of Miranda?
o When an officer has a suspect in
custody and specifically asks him or her
direct questions about the incident
under investigation, the officer is
engaged in interrogation within the
meaning of the Miranda rule.
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An Important Definition
o The Supreme Court stated that
interrogation as used in Miranda refers to
“either express questioning or its functional
equivalent.”
o Furthermore, the Court defined “functional
equivalent” as “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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What Constitutes a Valid
Waiver of Miranda Rights?
o In the Miranda decision, the Supreme
Court stated that the prosecution has a
“heavy burden” of proof that any
claimed waiver of rights by an accused
was made voluntarily, knowingly, and
intelligently.
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What Constitutes a Valid Waiver After
a Suspect Asserts His or Her Rights?
o The Court stated that if a suspect, prior
to or during interrogation, indicates in
any manner that “he wishes to remain
silent, the interrogation must cease.”
o Likewise, the Court said that if an
individual says that “he wants an
attorney, the interrogation must cease
until an attorney is present.”
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Test for the Resumption
of the Questioning
The Court established two separate rules
governing resumption of questioning:
oOne to invoke the right to remain
silent
oOne to invoke the right to counsel
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Exceptions to the Miranda Rule
o Public safety exception
o Routine booking questions exception
o Undercover police questioner
exception
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New York v. Quarles
o The public safety exception holds that
Miranda should not apply to a situation
in which police officers ask questions
reasonably prompted by a concern for
the public safety.
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Pennsylvania v. Muniz
o The Justices concluded that questions
posed to an arrestee during booking,
such as those relating to name,
address, weight, eye color, date of
birth, and age are within a “routine
booking question” exception, “which
exempts from Miranda's coverage
questions to secure the ‘biographical
data necessary to complete booking or
pretrial services.’”
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Illinois v. Perkins
o The Court held that “an undercover law
enforcement officer posing as a fellow
inmate need not give Miranda warnings to
an incarcerated suspect before asking
questions that may elicit an incriminating
response.”
o The Court said that “[p]loys to mislead a
suspect or lull him into a false sense of
security that do not rise to the level of
compulsion or coercion to speak are not
within Miranda's concerns.”
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Miranda, the Exclusionary Rule, and
the Fruit of the Poisonous Tree Doctrine
o When there is a violation of any
constitutional provision relating to
criminal procedure, the evidence
gained as a result of such violation may
be inadmissible at trial because of the
exclusionary rule.
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Michigan v. Tucker vs.
Dickerson v. United States
o Although the Miranda opinion discusses
the Fifth Amendment Privilege Against Selfincrimination and the Sixth Amendment
Right to Counsel, the case of Michigan v.
Tucker developed the theory that a
Miranda violation is not a constitutional
violation.
o The Supreme Court in Dickerson (2000) is
inconsistent with the view expressed in
Tucker. In Dickerson, the Court held that
Miranda was a constitutional decision.
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Fruit of the Poisonous Tree
Doctrine Revisited
o When there is a violation of a
defendant's constitutional rights, in
addition to the direct fruit of the
violation being inadmissible, any
evidence derived from the violation is
also inadmissible under the fruit of the
poisonous tree doctrine.
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What “the fruit of the poisonous
tree” means
o The theory of the fruit of the poisonous
tree doctrine is that if the root of the tree
is poisoned, the fruit of the tree is also
poisoned.
o It is important to note that the case may
be dropped if, without the inadmissible
evidence, the case against the
accused is insufficient to support a
conviction.
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Not everything is inadmissible
o The U.S. Supreme Court has created an
impeachment exception to the rule that
excludes statements taken by the
police in violation of Miranda.
o If a defendant:
takes the witness stand, and
testifies untruthfully, the prosecutor can use
a statement obtained in violation of
Miranda to impeach the defendant's
testimony.
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United States v. Patane
o The Court in Patane (2004) found that
the introduction of non-testimonial
evidence obtained as a result of
voluntary statements does not violate a
suspect’s Miranda right by negligent of
non-deliberate failures to provide full
Miranda warnings.
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Exclusion of Confessions Due to
Violation of the Sixth Amendment
Right to Counsel
o The Supreme Court of the United States
has held that the right attaches only at
a critical stage of a prosecution, which
means when adversarial judicial
proceedings have been initiated,
“whether by way of formal charge,
preliminary hearing, indictment,
information, or arraignment.”
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Massiah v. United States
o The U.S. Supreme Court used the
exclusionary rule as a means of
discouraging police misconduct in
obtaining suspects’ incriminating
statements.
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The Right to Counsel
o The right to counsel is one of the
guarantees of the Sixth Amendment to
the United States Constitution.
o This fundamental right applies to the
states through the Due Process Clause
of the Fourteenth Amendment.
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When the Right to
Counsel Rule Applies
o The Sixth Amendment right to counsel
attaches when adversary judicial
proceedings have commenced in a
criminal case.
o When the accused has obtained and
has actually met with counsel, police
conduct amounting to deliberate
elicitation of incriminating statements
from the accused violates the
accused’s right to counsel.
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What Constitutes Deliberate
Elicitation Versus Interrogation
Deliberate elicitation occurs when the law
enforcement officer acts:
owith the purpose of eliciting
oan incriminating response
ofrom a suspect
oafter counsel has been obtained or
othe adversarial proceeding has begun
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How an Accused Can Waive
the Right to Counsel
o A waiver of the right to counsel is
possible in all situations where the
accused is informed of the right and
makes a voluntary, knowing, and
intelligent waiver of that right.
o These principles were established in the
1938 Supreme Court decision of
Johnson v. Zerbst.
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Confession Given After an Unlawful
Search and Seizure May Be Excluded
o The exclusionary rule and the fruit of the
poisonous tree doctrine both apply to
the products of an unlawful search or
seizure.
o Therefore, if a person, subjected to an
unlawful search and seizure, makes
incriminating statements, those
statements are inadmissible under the
exclusionary rule.
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Procedure for Introduction
of Confessions
o A confession is usually introduced
through the testimony of the officer to
whom it was made.
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The Orthodox Procedure
o The trial judge decides if, given the
circumstances, the confession is
voluntary.
o If it is, the confession is introduced into
evidence and the judge instructs the
jury to consider the confession along
with all the other evidence presented.
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The Massachusetts Procedure
o Under the Massachusetts procedure, if the
judge decides that the confession is
voluntary, the judge instructs the jury on
the definition of voluntariness and instructs
the jury to consider the confession as
evidence only if it finds that the confession
was voluntary.
o In other words, under the Massachusetts rule,
the defendant gets two bites at the apple; if
the judge allows the confession, then the issue
may be presented to the jury for its
consideration as well.
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Confessions: Simple or Complex
All Sizes, Flavors, and Issues
o The confession may be a simple
statement on the part of an individual.
The accused may merely state: “I killed
Molly Brown with a hatchet.”
o The confession may be a lengthy
acknowledgment in which the accused
relates in detail every phase of the
crime.
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A Sample Preamble
“I, (the name of the accused), make this
voluntary statement to officer (name of
officer or officers conducting the
interrogation). I make this statement
without threats or promises being made to
me. I have been advised of my right to
remain silent. I have also been advised of
my right to consult an attorney, and to
have that attorney present during the time
that I am being questioned by the officer.
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A Sample Preamble
I was also advised that if I could not afford
an attorney, one would be provided for
me free of charge. I was advised that if I
did say anything, it could be used against
me in court. I wish to state that I
understand my right to remain silent and
my right to an attorney, but I waive these
rights and wish to make the following
statements to (officer's name).”
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The Confession
o May be in question-and-answer form
which is better as it more truly reflects
exact statements of the accused.
o May be a narrative form of statement
which is a summary of the facts as
related by the accused which has the
difficulty that it is frequently in the words
of the officer, not the accused.
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Concluding the Confession
A statement, in the accused’s own
handwriting, is suggested to conclude the
confession.
oSample: “I have read the following
statement consisting of (number)
pages, and it is true and correct to the
best of my knowledge and belief.”
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Confession Implicating
a Co-defendant
o Officers frequently encounter a situation
where a crime is committed by two or
more defendants and one defendant
confesses to the crime, implicating the
other, while the other defendant refuses
to make any statement, much less to
confess.
o In this situation, the principle of limited
admissibility, which would ordinarily
solve the problem, will not work.
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Limited Admissibility
o Limited admissibility allows evidence
admissible for one purpose but
inadmissible for another purpose to be
introduced for the allowable purpose.
o Limited admissibility is a concept that is
followed in all jurisdictions.
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Proof of the Crime in Addition to a
Confession: The Requirement of
Corpus Delicti
o It is generally conceded in the United
States that a person cannot be
convicted of a crime upon a confession
alone.
o There must be some proof of the crime
in addition to the acknowledgment of
guilt by the accused, some outside
proof of the corpus delicti, that is, proof
that a crime has been committed.
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