Criminal Procedure for the
Criminal Justice Professional
11th Edition
John N. Ferdico
Henry F. Fradella
Christopher Totten
Interrogations, Admissions, and
Confessions
Chapter 13
Prepared by Tony Wolusky
Safeguarding Constitutional Rights
During Interrogations

There are three approaches taken.
1.
2.
3.
The Due Process Clauses of Fifth and Fourteenth
Amendments—only voluntary statements, admissions,
and confessions may be introduced
The Self-Incrimination Clause of the Fifth Amendment—
procedural warnings (Miranda rights) must be given to a
person prior to custodial interrogation
The Right to Counsel Clause of the Sixth Amendment—
protects criminal defendants from making statements,
admissions, or confessions without the presence and
effective assistance of counsel after the initiation of
formal criminal proceedings
Miranda v. Arizona (1966)


The Court established procedural safeguards to
protect the Fifth Amendment privilege against
self-incrimination—the familiar Miranda
warnings.
Prior to custodial interrogations, all suspects
must be informed of the following:



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Their right to remain silent
That anything said may be used as evidence
Their right to an attorney
That an attorney will be provided if he/she is unable to
afford one
Voluntariness and Due Process after
Miranda


Any statement given without coercion is
considered voluntary.
A totality of circumstances approach is used
to determine if coercive police activity
overcame the defendant’s will.
Custodial Interrogation

Miranda applies during “custodial
interrogation,” as defined by the Supreme
Court as:

“Questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise
deprived of his freedom of action in any significant way."
Miranda, 384 U.S. at 444.
Determining “Custody”

Determining "custody" typically includes
evaluating:
1.
2.
3.
4.
5.
6.
7.
The location of the encounter and whether it was familiar to the
suspect, or at least neutral or public;
The number of officers questioning the suspect;
The degree of restraint or force used to physically detain the
suspect;
The duration and character of the interrogation, including the
degree of psychological coercion used to detain the individual;
The language used to summon the suspect;
The extent to which the suspect is confronted with evidence of
guilt; and
Whether the suspect initiated contact with the police.
Interrogation


“Interrogation” is a broad term that includes express questioning and
any statements that are reasonable likely to elicit an incriminating
response, whether inculpatory or exculpatory.
Interrogation does not include:
 Volunteered statements
 Clarifying questions
 Routine questions
 Spontaneous questions
 Questions related to public safety
 Questioning by private citizens

Interrogations by undercover agents
Assertion of Miranda Rights

The rights against self-incrimination must be
invoked. A suspect may invoke Miranda
rights at any time prior to or during a
custodial interrogation.


Assertions must be clear and unambiguous.
If, after receiving Miranda warnings, a person indicates a
desire to remain silent, the interrogation must cease. If
the person requests an attorney, the interrogation must
cease until an attorney is present.
Sufficiency of Miranda Warnings

The Miranda warnings:







Must be given to all suspects;
Apply regardless of the nature or severity of the offense
being investigated;
Must be completed before custodial interrogations;
Is inapplicable to civil proceedings;
Need not be given in exact form, as long as they are
reasonably conveyed;
Must be completely given; and
Should be re-administered whenever there has been a
break in the continuity of interrogation.
Waiver of Miranda Rights

Silence is not a waiver. Waivers may be
expressly stated or implied.


Implied waivers are assessed based on the totality-ofcircumstances based on standards set in Moran v.
Burbine (1986).
Waivers must be voluntary, knowing, and intelligent.
1.
2.
Voluntary—the product of a free and deliberate choice
rather than police intimidation, coercion, or deception
Knowing and intelligent—made with a full awareness both
of the nature of the right being abandoned and the
consequences of the decision to abandon it.
Effect of Miranda—Edwards in Court

Miranda violations are barred only in the
prosecution’s case-in-chief.


Cannot be used as substantive evidence in the
prosecution's case-in-chief to prove the defendant's
guilt of crime
Voluntary, Mirandaless, statements may still
be used to but they may be used to
impeach the defendant's testimony at trial or
to discover witnesses.
Effect of Pre- and Post-Interrogation
Silence


Invoking Miranda cannot be used against
someone at trial.
Silence in response to questions asked prior
to Miranda warnings (that were not the
product of custodial interrogations) may be
used to impeach a defendant's testimony at
trial.
Section 1983 Claims Barred


If suspects are interrogated without having
been given Miranda warnings, the only
remedy is that their unwarned statements
may not be admitted at trial as substantive
evidence against them.
They have no viable Section 1983 claim
against the officers who failed to honor their
Miranda rights.
Attachment of Sixth Amendment
Right to Counsel


The Sixth Amendment right to counsel is
triggered ("attaches") when formal criminal
proceedings have begun.
Once attached, providing a defendant with
Miranda warnings, coupled with informing the
person that they have been formally charged
with a crime, is sufficient to provide adequate
notice to the person of his or her Sixth
Amendment rights.
Fifth Amendment "Interrogation" vs.
Sixth Amendment "Deliberate Elicitation"


The Fifth Amendment is concerned with
coercive police tactics and self-incrimination;
the Sixth Amendment applies even when
there is no interrogation.
Once the Sixth Amendment attaches:



Deliberate elicitation violates right to counsel
Passive receipt of information does not violate the right
to counsel
The Sixth Amendment right to counsel is
“offense specific.”
Waiver of Sixth Amendment Right to
Counsel

To prove that a valid waiver of counsel for
Sixth Amendment purposes, the
prosecution must prove that:
1.
2.
The defendant was aware of the right to counsel, and
The defendant knowingly, intelligently, and voluntarily
relinquished the right.
Remedies for Violations of the Sixth
Amendment Right to Counsel

Any incriminating statements made by a
defendant that are obtained in violation of
the Sixth Amendment are inadmissible at
trial in the prosecution's case-in-chief, but
such statements are admissible for
impeachment purposes if they were
obtained voluntarily.