February 18, 2021

Distinguish between Criminal and Noncriminal Proceedings

Part 3 INTERROGATIONS, CONFESSIONS, AND IDENTIFICATION PROCEDURES

Chapter 8 Interrogations and Confessions Chapter 9 Identification Procedures and the Role of Witnesses

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LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Summarize how suspects may use the Fifth Amendment to protect themselves against self-incrimination. � Explain Miranda rights and how they impact interrogations and confessions. � Summarize how the Sixth Amendment impacts interrogations and confessions. � Summarize how due process and voluntariness impact interrogations and confessions. � Know when unconstitutionally obtained confessions are admissible in court to prove guilt.

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CHAPTER OUTLINE

Interrogations and Confessions

C H

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OUTLINE

Introduction: Getting Suspects to Talk The Fifth Amendment and Self-Incrimination

What It Means to Be Compelled Compulsion during Questioning

Distinguishing between Criminal and Noncriminal Proceedings Some Complications

What It Means to Be a Witness What It Means to Be a Witness against Oneself

Interrogations and Confessions Various Approaches to Confession Law The Due Process Voluntariness Approach

Police Conduct Characteristics of the Accused

The Sixth Amendment Approach Deliberate Elicitation Formal Criminal Proceedings Waiver of the Sixth Amendment Right

to Counsel (Confessions)

The Miranda Approach Custody Interrogation Other Miranda Issues Challenging Miranda More Recent Miranda Decisions

The Exclusionary Rule and Confession Analysis Confessions and Standing Confessions and Impeachment Confessions and “Fruit of the Poisonous Tree”

The Importance of Documenting a Confession Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

Getting Suspects to Talk

This chapter turns to the law of confessions and interrogations. The Fifth Amendment is what protects suspects from improper interrogation procedures and from being forced to supply illegally obtained confessions, but it is not the only protection offered to suspects in the confession context. Other amendments, such as the Sixth and the Fourteenth, also apply, but the Fifth is most applicable. Accordingly, this chapter begins with an in-depth look at the protections afforded to criminal suspects by the Fifth Amendment.

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246 Part 3 • Interrogations, Confessions, and Identification Procedures

Miranda v. Arizona (384 U.S. 436 [1966])

THE FIFTH AMENDMENT AND SELF-INCRIMINATION

The Fifth Amendment protects against much more than self-incrimination (e.g., it also contains the so-called eminent domain clause), but such protections are beyond the scope of a criminal procedures text. Instead, this chapter focuses squarely on what is known as the self-incrimination clause of the Fifth Amendment, which states, in relevant part, that no person “shall be compelled in any criminal case to be a witness against himself.”

The self-incrimination clause seems straightforward on its face, but it has been litigated extensively in the courts over the years. For ease of exposition, the self-incrim- ination clause can be broken into four specific components, each of which has come before the U.S. Supreme Court more than once. The four components are what it means to be (1) compelled and (2) in a criminal proceeding as well as what it means (3) to be a witness and (4) a witness against oneself.

What It Means to Be Compelled

Former chief justice Burger once wrote that “absent some officially coerced self-accusa- tion, the Fifth Amendment privilege is not violated by even the most damning admis- sions” (United States v. Washington, 431 U.S. 181 [1977]). What Justice Burger meant by this was that voluntary (i.e., noncompelled) admissions are not subject to Fifth Amendment protection. That is, if a person fails to assert Fifth Amendment protection and a waiver is “voluntary and intelligent,” then whatever that person says will be admissible (see Garner v. United States, 424 U.S. 648 [1976]).

When, then, can a confession or admission be considered compelled? According to the Supreme Court, compulsion can occur in a number of formal as well as informal cir- cumstances. As noted in the landmark case of Miranda v. Arizona (384 U.S. 436 [1966]), discussed at length later in this chapter, if the Fifth Amendment applied only in formal settings, such as during trial, then “all the careful safeguards erected around the giving of testimony, whether by an accused or a witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police” (p. 466).

Compulsion can occur via several means, but since our interest in this chapter lies with confessions and interrogations, we will limit the discussion to how compulsion can occur during questioning.

COMPULSION DURING QUESTIONING Whether a person can be compelled to testify against himself or herself, in violation of the Fifth Amendment, requires attention to several distinct varieties of questioning as well as to whom is being asked the question: the suspect/defendant or a witness. Specifically, compulsion can occur when certain types of questions are asked of people suspected of being involved in criminal activity. By contrast, compulsion rarely occurs when witnesses are asked questions.

Questioning of Suspects/Defendants. First, if a person is arrested and interrogated after asserting Fifth Amendment protection (and is not provided with counsel), then the Fifth Amendment will be violated. This simple rule stems from the Miranda decision, which, as already indicated, is reviewed in depth later in this chapter.

Second, a defendant in a criminal trial cannot be compelled to testify under any circumstances. The defendant enjoys absolute Fifth Amendment protection from self- incrimination during a criminal proceeding. However, once a defendant takes the stand, he or she can be compelled to answer questions. Indeed, the defendant can be held in contempt for failing to answer questions once he or she has taken the stand. The same rule applies to witnesses. The so-called fair examination rule ensures that wit- nesses at either a trial or a grand jury hearing can be compelled to answer questions

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Brown v. United States 356 U.S. 148 [1958]

once they waive their Fifth Amendment privilege and begin to testify (see, e.g., Brown v. United States, 356 U.S. 148 [1958]; Rogers v. United States, 340 U.S. 367 [1951]).

Questioning of Witnesses. Questioning of witnesses at trial, questioning of witnesses appearing before grand juries, and noncustodial questioning cannot be considered compelled. First, in stark contrast to the Miranda decision, which requires officials to notify people of their right to counsel before custodial interrogation, the Supreme Court has held that trial witnesses are not entitled to notification of their right to remain silent. No assessment as to whether the person’s testimony at trial is the product of a voluntary and intelligent waiver is required, either. According to Justice Frankfurter in United States v. Monia (317 U.S. 424 [1943]), “[I]f [a witness] desires the protection of the [Fifth Amendment’s privilege against self-incrimination], he must claim it or he will not be considered to have been ‘compelled’ within the meaning of the Amendment” (p. 427).

Trial witnesses do not need to be advised of their privilege against self-incrimina- tion for two reasons. First, it is likely that testimony given at a public trial will be less coercive than any statements made out of view of the court. Second, since a trial witness is not the defendant, the process of questioning will likely be less adversarial; rather, the prosecution will simply question the witness.

Next, witnesses who testify before grand juries are not required to be advised of their privilege against self-incrimination and, as such, cannot be compelled in Fifth Amendment terms. This was the decision reached in the case of United States v. Mandujano (425 U.S. 564 [1976]), in which the respondent was charged with perjury for making false statements while testifying before a grand jury. He moved to have his false statements suppressed in his criminal trial, but the Supreme Court held that the failure of the state to provide him with Miranda-like warnings did not violate the Fifth Amendment (see also United States v. Wong, 431 U.S. 174 [1977]; United States v. Washington). The reasoning for this rule is simple: Since such testimony takes place before members of the public (i.e., the grand jury itself) and is usually monitored by the court, the potential for coercion is considerably less likely than is possible in a private setting.

Finally, noncustodial questioning of witnesses outside the courtroom contains the potential for coercion, but the courts have held that out-of-court witnesses do not need to be advised of their privilege against self-incrimination. As Justice Scalia noted in Brogan v. United States (522 U.S. 398 [1998]), it is “implausible” that people are not aware of their right to remain silent “in the modern age of frequently dramatized ‘Miranda’ warnings” (p. 405). In other words, witnesses who are questioned outside court, in noncustodial situations, cannot be considered compelled for Fifth Amendment purposes.

Distinguishing between Criminal and Noncriminal Proceedings

The previous section considered several means by which the government can compel people to incriminate themselves. It is now necessary to focus on the definition of “criminal proceeding,” one of the other important elements of the Fifth Amendment’s self-incrimination clause. Stated simply, if a statement is compelled but is not used in a criminal proceeding, it cannot have been obtained in violation of the Fifth Amendment’s self-incrimination clause. This is because the Fifth Amendment does not apply in noncriminal proceedings.

As a general rule, any criminal defendant has the right to remain silent at grand jury as well as trial proceedings. However, such an individual can also refuse “to answer official questions put to him in any . . . proceeding, civil or criminal, formal or

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248 Part 3 • Interrogations, Confessions, and Identification Procedures

In re Gault (387 U.S. 1 [1967])

informal, where the answers might incriminate him in future criminal proceedings” (Lefkowitz v. Turley). Criminal proceedings can thus include more than criminal trials.

It is important to note that just because an answer is compelled before a criminal proceeding, it will not necessarily be held in violation of the Fifth Amendment. For example, in Estelle v. Smith (451 U.S. 454 [1981]), the Supreme Court held that the state may compel answers from a defendant during pretrial hearings to determine his or her competence to stand trial. Such questioning is not considered criminal, for purposes of the Fifth Amendment.

SOME COMPLICATIONS Outside the criminal trial context (i.e., in civil cases), determin- ing whether a proceeding is criminal for Fifth Amendment purposes is not as easy as one might expect. To deal with this complex determination, the courts usually focus on the issue of punitive sanctions. That way, there is no need to distinguish between civil and criminal proceedings. Both types of proceedings possess the potential to hand down punitive sanctions (e.g., forfeiture of one’s property or punitive damages in a liability lawsuit).

That a civil proceeding can be considered criminal for self-incrimination purposes is evidenced in In re Gault (387 U.S. 1 [1967]). In that case, the Supreme Court had the opportunity to determine whether a state’s civil designation of juvenile proceedings diminished the Fifth Amendment’s applicability in such proceedings. The Court noted that “our Constitution guarantees that no person shall be ‘compelled’ to be a witness against himself when he is threatened with deprivation of his liberty” (p. 50). Because juveniles’ liberty is often at stake in juvenile trials (adjudicatory hearings as they are sometimes called), even if such trials are designated civil, the Fifth Amendment applies.

However, in Minnesota v. Murphy (465 U.S. 420 [1984]), the Court noted that ques- tions asked of a probationer that were relevant only to his or her probationary status and “posed no realistic threat of incrimination in a separate criminal proceeding” (p. 435, n. 7) did not violate the Fifth Amendment. That is, the questions did not take place in a criminal proceeding.

In one interesting case, Allen v. Illinois (478 U.S. 364 [1986]), the Supreme Court noted that the Gault decision’s deprivation of liberty criterion was “plainly not good law” (p. 372). Instead, the Court focused on “the traditional aims of punishment—retri- bution or deterrence” (p. 370). Specifically, the Court considered in Allen whether an Illinois statute that provided for the civil commitment of people deemed to be “sexually dangerous” was constitutional. The Court’s decision was that civil confinement under the Illinois Sexually Dangerous Persons Act did not meet the traditional aims of punish- ment but was instead rehabilitative. According to the Court, had the civil confinement imposed on the offenders “a regimen which is essentially identical to that imposed upon felons with no need for psychiatric care, this might well be a different case” (p. 373).

So, what exactly is a criminal proceeding, for purposes of the Fifth Amendment? It is safe to conclude that a criminal proceeding is one that may result in criminal punish- ment. This includes not only criminal trials but also such proceedings as juvenile delin- quency hearings, grand jury investigations, capital sentencing hearings, and the like. Civil commitment proceedings and other proceedings intended to serve a rehabilitative or similar purpose (i.e., other than punishment) are not considered criminal for purposes of the Fifth Amendment.

What It Means to Be a Witness

Still another issue is relevant concerning the scope of the Fifth Amendment’s protection against self-incrimination—namely, the definition of a witness. Everyone knows what a witness is in the conventional sense of the term, but in this context, the Supreme Court

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Couch v. United States (409 U.S. 322 [1973], p. 328)

has declared that the term witness can be defined as “one who supplies testimonial evidence.” The Fifth Amendment protection against compelled self-incrimination also extends to things that people say which are communicative in nature—but not neces- sarily testimonial. An example is an incriminating statement given in a police interroga- tion room. Testimony thus 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.

The testimonial evidence requirement does not cover physical evidence (e.g., tan- gible property and the like). In other words, physical evidence is not protected by the Fifth Amendment. As Justice Holmes pointed out, “[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of phys- ical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material” (Holt v. United States, 218 U.S. 245 [1910], pp. 252–253).

More recently, in Schmerber v. California (384 U.S. 757 [1966]), the Court held that “the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature” (p. 761). As a general rule, then, the government can compel any criminal defendant to supply incriminating physical evidence without violating the Fifth Amendment. Indeed, the government can force the accused to wear a particular outfit (e.g., Holt), to submit to the extraction of a blood sample (e.g., Schmerber), to participate in a lineup (e.g., United States v. Wade, 388 U.S. 218 [1967]), or to produce a sample of handwriting (e.g., Gilbert v. California, 388 U.S. 263 [1967]; United States v. Mara, 410 U.S. 19 [1973]) or a voice exemplar (e.g., United States v. Dionisio, 410 U.S. 1 [1973]).

In addition, the Fifth Amendment “offers no protection against compulsion to submit to fingerprinting, photography, or measurements, . . . to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture” (United States v. Wade, p. 223). As long as the government does not seek testimonial evidence, the Fifth Amendment cannot be violated, even at trial.

It should be pointed out that some verbal responses to questions can be considered noncommunicative and thus exempt from the Fifth Amendment. For example, in Pennsylvania v. Muniz (496 U.S. 582 [1990]), the Court held unanimously that the inabil- ity to articulate words in a clear manner was not testimonial evidence and could be used against the defendant. In that case, the state introduced the defendant’s slurred responses to numerous routine booking questions in order to prove he was guilty of drunk-driving.

What It Means to Be a Witness against Oneself

The fourth and last element of the Fifth Amendment’s self-incrimination clause is that it is limited, not surprisingly, to the person making the incriminating statement. That is, the only person who can assert Fifth Amendment protection is the person being com- pelled to answer a question. According to the Supreme Court, “The Constitution explic- itly 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], p. 328).

Furthermore, the Court noted that “[w]e cannot cut the Fifth Amendment com- pletely loose from the moorings of its language and make it serve as a general protector of privacy—a word not mentioned in its text and a concept directly addressed in the Fourth Amendment” (Fisher v. United States, 425 U.S. 391 [1976], p. 401). Thus, in Couch, the Fifth Amendment did not protect a business owner whose accountant turned over documents that incriminated the owner.

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Brown v. Mississippi (297 U.S. 278 [1936])

There are some exceptions to the rule that only the person being compelled can assert Fifth Amendment privilege. For example, when documents are transferred to an attorney for the purpose of obtaining legal advice, the attorney may assert Fifth Amendment protection in place of his or her client. This exception is not based on the Fifth Amendment, however. (Rather, it is a privileged communication.)

INTERROGATIONS AND CONFESSIONS

Most of the law concerning confessions and admissions has arisen in the context of police interrogation. The courts have imposed a litany of restrictions on what law enforcement officials can do in order to elicit incriminating statements from suspected criminals.

It is worthwhile, before continuing, to define the terms confession and admission. A confession occurs when a person implicates himself or herself in criminal activity fol- lowing 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 synonymously throughout the remainder of this chapter. Toward the end of the chapter, the discussion will turn to what steps law enforcement officials should take to secure a valid, documented confession.

Various Approaches to Confession Law

Confessions and admissions are protected by the Fifth Amendment. The Miranda rights, for example, stem from the Fifth Amendment. However, confessions and admissions are also protected by the Fourteenth Amendment’s due process clause as well as the Sixth Amendment’s right to counsel clause.

The primary focus in this chapter is on the Fifth Amendment, but for the sake of placing Fifth Amendment confession law into context, it is important to briefly consider the extent to which confessions are protected by other constitutional provisions. Indeed, the very fact that three amendments place restrictions on what the government can do in order to obtain confessions suggests that the U.S. Constitution places a high degree of value on people’s rights to be free from certain forms of questioning.

The Due Process Voluntariness Approach

One approach to confessions and admissions can be termed the due process voluntari- ness 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.

At one time, the Fifth and Sixth Amendments did not apply to the states. An illus- trative case is Brown v. Mississippi (297 U.S. 278 [1936]). There, 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.

When, then, is a confession involuntary? As decided in Fikes v. Alabama (352 U.S. 191 [1957]), the answer is when, under the “totality of circumstances that preceded the confessions,” the defendant is deprived of his or her “power of resistance” (p. 198). This answer, unfortunately, does not provide any uniform criteria for determining voluntari- ness. Instead, the courts take a case-by-case approach to determining voluntariness. Usually, this requires focusing on two issues: (1) the police conduct in question and (2) the characteristics of the accused.

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Williams v. United States (341 U.S. 97 [1951])

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” (p. 101).

In many other situations, however, the police conduct in question may not rise to the level of torture but may still be questionable. For example, in Rogers v. Richmond (365 U.S. 534 [1963]), a man confessed after the police told him they were going to take his wife into custody. And in Lynumm v. Illinois (372 U.S. 528 [1963]), a defendant con- fessed after being promised leniency. Both confessions were found to be coerced. This is not to suggest that deception on the part of the police necessarily gives rise to an involuntary confession but only that it is one of several considerations in determining voluntariness.

It is safe to conclude that psychological pressures, promises of leniency, and deception are rarely by themselves enough to render a statement involuntary, but two or more such acts (especially if coupled with physical force) will more than likely result in an involuntary confession. Some illustrative cases are worth considering.

For example, in Spano v. New York (360 U.S. 315 [1959]), detectives relied on a police officer who was a friend of the accused to question him. The officer falsely stated that his job would be in jeopardy if he did not get a statement from the accused. The Supreme Court concluded that the false statement, including the sympathy thereby obtained, was sufficient to render the accused’s statement involuntary.

Next, in Leyra v. Denno (347 U.S. 556 [1954]), police relied on a psychiatrist who posed as a doctor in order to give the accused relief from a sinus problem. The psychi- atrist used subtle forms of questions and ultimately obtained a statement from the accused. The Court felt that the suspect was unable to resist the psychiatrist’s subtle questioning.

Contrast Spano and Denno with Frazier v. Cupp (394 U.S. 731 [1969]). There, the Supreme Court held that a police officer’s false statement that a co-defendant impli- cated the accused was not sufficient to produce an involuntary statement. However, if the accused is questioned far from home and denied access to friends and family for several days, his or her resulting statements will probably be deemed involuntary (see Fikes v. Alabama). Similarly, an overly lengthy period of questioning and/or a denial of basic amenities, such as food, may result in a determination of involuntariness (see, e.g., Crooker v. California, 357 U.S. 433 [1958]; Payne v. Arkansas, 356 U.S. 560 [1958]; Ashcraft v. Tennessee, 322 U.S. 143 [1944]; Chambers v. Florida, 309 U.S. 227 [1940]).

CHARACTERISTICS OF THE ACCUSED As far as characteristics of the accused are concerned, conditions such as disabilities and immaturity have resulted in excluded confessions. For example, in Haley v. Ohio (332 U.S. 596 [1948]), the Supreme Court reversed a 15-year-old boy’s confession. In the Court’s words, “Mature men possibly

DECISION-MAKING EXERCISE 8.1

Police Conduct and Voluntariness

A suspect was interrogated by five officers who, with their guns drawn, stood over him as he lay handcuffed on the ground, semiconscious from a gunshot he had received earlier (a wound that was not inflicted by the officers). The

officers did not threaten to shoot the suspect if he failed to confess. Rather, they simply pointed their guns at him. Assuming the suspect confessed, would his confession be considered involuntary under the Fourteenth Amendment?

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Massiah v. United States (377 U.S. 201 [1964])

Colorado v. Connelly (479 U.S. 157 [1986])

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” (pp. 599–600).1

In some instances, fatigue and pain (e.g., as the result of an injury) can also render an accused’s statement involuntary; however, such a result usually requires some ques- tionable conduct on the part of the officials engaged in questioning of the accused (see Ashcraft v. Tennessee; Mincey v. Arizona, 437 U.S. 385 [1978]; and Beecher v. Alabama, 408 U.S. 234 [1972]).

As a general rule, voluntariness is overcome when (1) the police subject the suspect to coercive conduct and (2) the conduct is sufficient to overcome the will of the suspect. Another requirement is to look at the totality of circumstances to determine if the suspect’s vulnerabilities and condition, coupled with the police conduct, led to giving an involuntary confession (see Colorado v. Connelly, 479 U.S. 157 [1986]). See Figure 8.1 for a list of factors used to determine whether a confession is voluntary.

The Sixth Amendment Approach

The Sixth Amendment also places restrictions on 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]) led to 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. The two key elements to the Sixth Amendment approach are deliberate elicitation and formal criminal proceedings. The following subsections define each element.

DELIBERATE ELICITATION In the Massiah case, the defendant was released on bail pend- ing a trial for violations of federal narcotics laws and subsequently made an incriminat- ing statement in the car of a friend who had allowed the government to install a radio designed to eavesdrop on the conversation. Justice Stewart, writing for the majority, argued that if the Sixth Amendment’s right to counsel is “to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jail- house” (p. 206). Furthermore, “Massiah [the defendant] was more seriously imposed

1 Note that Haley dealt with due process, not Miranda. The Court held in Fare v. Michael C. (442 U.S. 707 [1979]) that juveniles are not to be treated differently than adults in the Miranda context.

FIGURE 8.1 Factors Considered in Determining Voluntariness

Police Behavior Characteristics of the Suspect

• Psychological pressure by the police • Promises of leniency • Deception • Length of detention • Duration of questioning • Intensity of questioning • Deprivation of access to family, friends,

nourishment, and counsel • Whether the suspect was advised of his or her right

• Disability • Immaturity • Intoxication • Fatigue • Pain • Age • Level of education

• Familiarity with the criminal process

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United States v. Henry (447 U.S. 264 [1980])

Brewer v. Williams (430 U.S. 387 [1977])

upon . . . because he did not even know that he was under interrogation by a govern- ment agent” (p. 206). These are issues of deliberate elicitation, in which police officers create a situation likely to induce a suspect into making an incriminating statement.

In another Sixth Amendment case, Brewer v. Williams (430 U.S. 387 [1977]), a 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 fur- ther 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 dis- cuss it further. Just think about it as we’re riding down the road” (p. 432). 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” (p. 399).

In a related case, 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” (p. 274). In that case, a man named Nichols, who was in jail with Henry, was enlisted by the police to be alert to any statements Henry made concerning a robbery. The police did not ask Nichols to start a conversation with Henry, only to be alert to what he said. The Supreme Court found that the officers created a situation likely to elicit an incriminating response but only because Nichols was a paid informant.

However, when law enforcement officers place an informant who is not paid but is working closely with the police in the same cell as the defendant, deliberate elicita- tion does not necessarily occur. This was the decision reached in Kuhlmann v. Wilson (477 U.S. 436 [1986]). Kuhlmann, the informant, did not ask the defendant any ques- tions concerning the crime for which the defendant was charged but instead listened to (and later reported on) the defendant’s “spontaneous” and “unsolicited” state- ments. Clearly, the line between these two cases is thin. The only distinction appears to be that Nichols, the informant in Henry, had worked with the police in the past and was being paid.

FORMAL CRIMINAL PROCEEDINGS A case closely related to Massiah (and decided shortly after it) is Escobedo v. Illinois (378 U.S. 478 [1964]). Escobedo was arrested for murder, questioned, and released. Then, 10 days later, an accomplice implicated Escobedo and he was rearrested. He requested to consult with his attorney, but that

DECISION-MAKING EXERCISE 8.2

Suspect Characteristics and Voluntariness

Ed Hornby approached a police officer on the street and said that he had killed someone and wanted to talk about it. He later confessed to an unsolved murder that had occurred several years earlier. Prior to trial, Hornby sought to have his confession excluded, arguing that it was involuntary. At trial, a psychiatrist testified for the defense that Hornby suffered from command auditory hallucinations, a condition that

rendered him unable to resist what the “voices in his head” told him to do. How should the court decide? What if, instead, Hornby had become hesitant to talk and his confes- sion had been preceded by a lengthy middle-of-the-night interrogation, during which he had been denied food and a desperately needed trip to the restroom?

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request was denied. Escobedo was convicted of murder, based partly on the statement provided by his accomplice. The Supreme Court reversed this decision, however:

We hold . . . that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular sus- pect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating state- ments, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied “the Assistance of Counsel” in violation of the Sixth Amendment . . . and that no statement elicited by the police during the interrogation may be used against him at a criminal trial. (pp. 490–491)

Unfortunately, Escobedo was cause for some confusion. In Massiah, the Court held that the Sixth Amendment right to counsel applies once formal proceedings have begun (e.g., a preliminary hearing, trial, or anything in between). However, in Escobedo, the Court seemed to broaden the scope of the Sixth Amendment by holding that it also applies once the accused becomes the focus of an investigation by the police. This left a significant question unanswered: When does a person become an accused? That is, when do formal criminal proceedings commence?

Massiah was indicted, so many courts have concluded that formal criminal proceedings begin with indictment (e.g., United States ex rel. Forella v. Follette, 405 F.2d 680 [2nd Cir. 1969]). However, eight years after Massiah (and after Miranda), the Supreme Court decided Kirby v. Illinois (406 U.S. 682 [1972]). In that case, the Court held that the Sixth Amendment is implicated whenever the “adverse positions of the govern- ment and defendant have solidified” so that “a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law” (p. 689). Fortunately, the Court clarified this statement by noting that the Sixth Amendment applies “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment” (p. 689, emphasis added). This was echoed in Rothgery v. Gillespie County (554 U.S. 1 [2008]), wherein the Court held that the Sixth Amendment right to counsel can attach at the initial appearance (see Chapter 10 for more on the initial appearance).

Massiah does not apply simply because a suspect or arrestee has retained the ser- vices of counsel. In Moran v. Burbine (475 U.S. 412 [1986]), the Supreme Court held that what is important in determining whether the Sixth Amendment right to counsel applies is whether “the government’s role [has] shift[ed] from investigation to accusa- tion” (p. 430). Similarly, in Maine v. Moulton (474 U.S. 159 [1985]), the Court held that “to exclude evidence pertaining to charges as to which the Sixth Amendment right to coun- sel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities” (p. 180).

It should be noted that the Sixth Amendment approach to interrogations and confessions is offense-specific. This was reiterated by the Supreme Court in Texas v. Cobb (531 U.S. 162 [2001]), where it held that a man’s confession to a crime with which he had not been charged did not violate the Sixth Amendment. In that case, the defen- dant was indicted for burglary and given access to counsel, which obviously prohibits deliberate elicitation of incriminating information. However, he confessed to murder- ing the woman and child who lived in the home he allegedly burglarized. He later sought to have his confession excluded, but the Supreme Court disagreed, in essence, finding that the burglary charge did not trigger the Sixth Amendment protection for the murder charge.

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WAIVER OF THE SIXTH AMENDMENT RIGHT TO COUNSEL (CONFESSIONS) One’s Sixth Amendment right to counsel can be waived in the confession context (just as in the case of trial context, as you will see in Chapter 11). In Michigan v. Jackson (475 U.S. 625 [1986]), the Supreme Court held that once an accused individual has asserted his or her Sixth Amendment right to counsel, any statements obtained from subsequent questioning would be inadmissable at trial unless the accused initiated the communication.

This decision was recently overturned, however, in Montejo v. Louisiana (No. 07-1529 [2009]). Unbeknownst to police, Montejo had been appointed an attorney, but he was encouraged by a detective to write a letter of apology to the wife of the man he had killed. Before doing so, he was advised of his Miranda rights, but again, he had been appointed counsel—it was just that police did not know this. The prosecution introduced the apol- ogy letter at trial. Montejo sought to have it excluded since, he felt, his attorney was not present when it was written. The Supreme Court disagreed. It felt that Miranda and other decisions offer sufficient protection. Also, had Montejo asserted his right to counsel, the outcome would have likely been different.

What is the practical meaning of the Montejo decision? Law enforcement is now allowed, after reading a suspect the Miranda rights and receiving a voluntary waiver of the right to counsel, to interrogate a suspect who has been appointed counsel, provided that the suspect (1) has not previously asserted Miranda protection or (2) has previously asserted Miranda protection and subequently waived it. The decision is beneficial to law enforcement because it offers more opportunities for them to secure incriminating state- ments from criminal suspects.

The Miranda Approach

In a very important yet frequently overlooked case, Malloy v. Hogan (378 U.S. 1 [1964]), the Supreme Court held that the Fifth Amendment’s self-incrimination clause applies to the states. In announcing that ruling some 40 years ago, the Court said that “today the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecution since 1897” (p. 7).

Not long after that decision, the Supreme Court moved beyond Massiah, Escobedo, and the due process voluntariness approaches to interrogation law, focusing instead on the Fifth Amendment. 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” (p. 444, emphasis added). This wording clearly established that the Fifth Amendment should serve as the basis for determining the constitutional- ity of a confession.

Importantly, the Sixth and Fourteenth Amendments still apply to interrogations and confessions in certain situations. For example, if the police conduct in question is not a custodial interrogation (as in Miranda) but formal charges have been filed, the Sixth Amendment will apply. Similarly, if custody and interrogation do not take place and formal charges are not filed, the due process voluntariness test can still be relevant for the purpose of determining the constitutionality of a confession or admission. In fact, think of the Fourteenth Amendment’s due process clause, in particular, as being something of a fallback. If no other constitutional protections apply, the guarantee of due process almost always does.

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?”

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Berkemer v. McCarty 468 U.S. 420 [1984], p. 442

The discussion will return to some Supreme Court cases addressing the substance and adequacy of these warnings, particularly when they are read differently. But for now, the concepts of custody and interrogation require attention. Since the Supreme Court limited its decision in Miranda to custodial interrogations, it is important to understand the definitions of these two important terms: custody and interrogation.

CUSTODY Many people believe that Miranda rights apply whenever the police begin to question a person. This is not the case; if the person being questioned is not in custody, Miranda rights do not apply. Simple police questioning, or even a full-blown interroga- tion, is not enough to trigger the protections afforded by the Fifth Amendment. The person subjected to such questioning must be in police custody.

What is custody? The Court announced that Miranda applies when “a person has been taken into custody or otherwise deprived of his freedom of action in any signifi- cant way.” An arrest is a clear-cut case of police custody, but what about a lesser intru- sion? Unfortunately, there is no easy answer to this question. Instead, the courts have chosen to focus on the circumstances surrounding each individual case. The Court has stated, however, that “the only relevant inquiry [in analyzing the custody issue] is how a reasonable man in the suspect’s position would have understood his situation” (Berkemer v. McCarty, 468 U.S. 420 [1984], p. 442).

In the absence of a full-blown arrest, the courts have focused on four types of police/citizen encounters in determining whether custody exists for purposes of Miranda: (1) traffic and field stops; (2) questioning in the home; (3) questioning at the police station or equivalent facility; and (4) questioning for minor crimes.

First, custody does not take place in the typical traffic stop. This was the decision reached in Berkemer v. McCarty. There, a motorist was stopped for weaving in and out of traffic. After he admitted to drinking and smoking marijuana, the officer arrested him. The motorist argued that he should have been advised of his right to remain silent, but the Supreme Court disagreed, noting that vehicle stops are “presumptively temporary and brief” and sufficiently public to avoid the appearance of being coercive. The Court added, “From all that appears in the stipulation of facts, a single police officer asked [the defendant] a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists” (p. 442) and thus did not violate the Fifth Amendment.

The same applies to stops not involving vehicles. Miranda permits law enforce- ment officers to engage in “[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the factfinding process” (p. 477). 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” (p. 440). But what if an investigative

DECISION-MAKING EXERCISE 8.3

Formal Criminal Proceedings

An arrest warrant was issued for Mark Eddie for the crime of burglary, following an indictment for his latest heist. A de- tective arrested Eddie, brought him to the stationhouse, and then interrogated him at length concerning the burglary without counsel present. The detective also interrogated

Eddie about additional burglaries of which he was suspected of being involved in. While Eddie refused to talk about the most recent burglary (in which he made off with a substan- tial amount of money), he did admit to two prior burglaries. Was the questioning constitutional?

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California v. Beheler (463 U.S. 1121 [1983])

stop becomes more intrusive than a Terry stop, say, by taking place over a long period of time and/or in a private setting? Then, the Fifth Amendment’s self-incrimination clause, made known to suspects through the Miranda warnings, will usually apply.

Second, 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 custody existed when four police officers woke a man in his own home and began questioning him. However, in contrast to Orozco is Beckwith v. United States (425 U.S. 341 [1976]). There, Internal Revenue Service (IRS) agents interviewed a man in his home, an action that the Supreme Court declared noncustodial. The man argued that because he was the focus of a criminal investigation, he should have been advised of his right to remain silent. However, Chief Justice Burger noted that “Miranda specifically defined ‘focus,’ for its purposes, 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’ ” (p. 347).

Third, 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 cus- todial. Consider what the Supreme Court said in 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. The Court said:

Any interview of one suspected of a crime by a police officer will have coer- cive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the stationhouse, or because the questioned person is one whom the police suspect. (p. 495)

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” (p. 1121).

Interestingly, the Beheler decision seems to hold even if a person is pressured to come to the police station for questioning (see, e.g., Yarborough v. Alvarado, 541 U.S. 652 [2004]). For example, in Minnesota v. Murphy, a probationer was ordered to meet with his probation officer for questioning. During the meeting, the probationer con- fessed 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” (p. 430). Furthermore, while “[c]ustodial arrest is said to convey to the suspect a message that he has no choice but to submit to the officers’ will and to confess . . . [i]t is unlikely that a probation interview, arranged by appointment at a mutually convenient time, would give rise to a similar impression” (p. 433). The Court commented further in Murphy:

Many of the psychological ploys discussed in Miranda capitalize on the sus- pect’s unfamiliarity with the officers and the environment. Murphy’s regular

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meetings with his probation officer should have served to familiarize him with her and her office and to insulate him from psychological intimidation that might overbear his desire to claim the privilege. Finally, the coercion inherent in custodial interrogation derives in large measure from an inter- rogator’s insinuation that the interrogation will continue until a confession is obtained. . . . Since Murphy was not physically restrained and could have left the office, any compulsion he might have felt from the possibility that terminating the meeting would have led to revocation of probation was not comparable to the pressure on a suspect who is painfully aware that he liter- ally cannot escape a persistent custodial interrogator. (p. 433)

Fourth, the Supreme Court has had occasion to determine whether Miranda applies—specifically, whether people can be considered in custody for minor offenses. Again, Berkemer was a case involving a traffic stop. The second issue before the Court in that case was whether an exception to Miranda should exist for relatively minor crimes, such as misdemeanors. The Court declared that no distinction should be drawn between types of crimes as far as Miranda is concerned. Instead, the only relevant issue is whether a person is in custody (and, of course, interrogated). Even for a misde- meanor, the incentive for police to try to induce the defendant to incriminate himself or herself may well be significant.

It should be underscored before moving on that a key component of Miranda is that the questioning (and detention) must be conducted by government actors. If the people engaged in questioning cannot be considered government actors, then Fifth Amendment protections do not apply. However, when a private individual conducts a custodial interrogation as an agent of the police (i.e., working for the police), Miranda applies (see, e.g., Wilson v. O’Leary, 895 F.2d 378 [7th Cir. 1990]). Figure 8.2 provides a list of factors that are used to distinguish custodial from noncustodial encounters.

FIGURE 8.2 Distinguishing between Custodial and Noncustodial Situations

Custodial Situation Noncustodial Situation

Arrest Typical traffic stop Excessively lengthy confrontation General on-the-scene questioning Not free to leave Free to leave Involuntary encounter Voluntary encounter Private place, such as a police station Public place, where movement is not restricted

DECISION-MAKING EXERCISE 8.4

The Nature of Custody

Carole Reynolds was being held in jail while awaiting trial on narcotics offenses. The police had been unable to get her to make an incriminating statement, so they decided to place an undercover agent in her cell. The two women eventually

struck up a conversation, and the agent asked Reynolds, “What do you do for a living?” She responded, “I’m a drug kingpin.” Could Reynolds’s statement be used against her at her trial for narcotics offenses?

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INTERROGATION The second major component of Miranda is interrogation. 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 offi- cers.” Then, in Rhode Island v. Innis (446 U.S. 291 [1980]), the Court noted that interroga- tion “must reflect a measure of compulsion above and beyond that inherent in custody itself” (p. 300). 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.

Unfortunately, many questions are not readily identifiable as such. In Innis, the Supreme Court noted that in addition to “express questioning,” the “functional equiva- lent” of a question is also possible. 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” (p. 302, n. 8).

In Innis, while police officers were driving the defendant to the police station after his arrest for armed robbery, they engaged in a conversation about the danger the miss- ing robbery weapon posed to schoolchildren with disabilities. Apparently in response to the conversation, the defendant directed the officers to the location of the weapon. Interestingly, though, the Supreme Court held that the officers’ conversation did not constitute interrogation: It was “nothing more than a dialogue between the two officers

DECISION-MAKING EXERCISE 8.5

Can Reading the Miranda Rights Create a Custodial Situation?

Assume that with reasonable suspicion, police officers approach a man whom they suspect of recently robbing the First National Bank. They confront the man, and before initiating any questioning, they immediately read him his Miranda rights. Shortly after being read his rights but before

questioning, the suspect states, “I’m glad you guys found me. I can’t go on like this. I robbed First National.” Does the officers’ reading of Miranda convert a noncustodial situation (the case here) into a custodial one?

Suspects who are custodially interrogated must be advised of their Miranda rights. If the suspect is not in custody or is not interrogated, the Miranda rights do not need to be read.

Rhode Island v. Innis (446 U.S. 291 [1980])

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California v. Prysock (453 U.S. 355 [1981])

to which no response from the respondent was invited” (p. 315). The majority assumed implicitly that suspects will not respond to “indirect appeals to . . . humanitarian impulses,” but Justice Stevens dissented and argued that such an assumption “is directly contrary to the teachings of police interrogation manuals, which recommend appealing to a suspect’s sense of morality as a standard and often successful interroga- tion technique” (p. 315).

Even though Innis did not ultimately involve the functional equivalent of a ques- tion, the Court essentially expanded the definition of questioning. Namely, a mere con- versation between police officers designed to elicit an incriminating response—even if the conversation is not directed toward the suspect—can require giving the Miranda warnings. Of course, the person must also be in custody for the Miranda warnings to apply. Figure 8.3 lists some of the factors considered when distinguishing between interrogation and general questioning.

OTHER MIRANDA ISSUES A number of important Supreme Court cases have hinged on (1) the substance and adequacy of the Miranda warnings and (2) waivers of Miranda. If, for example, the Miranda warnings are not given adequately, then the police risk having a confession being thrown out of court. Also, like many rights, those provided by Miranda can be waived. That is, suspects can elect not to remain silent. Finally, suspects are not re- quired to be advised of their Miranda rights when doing so could compromise public safety. These and other Miranda issues are considered in the four subsections that follow.

Substance and Adequacy of the Warnings. 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]), the 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” (p. 359). 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.

The defendant challenged his conviction, but the Court concluded that the warn- ings given to him were sufficient and that “Miranda itself indicates that no talismanic incantation was required to satisfy its strictures” (p. 359).

In another interesting case, Duckworth v. Eagan (492 U.S. 192 [1989]), the following warnings were given:

Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if

FIGURE 8.3 Distinguishing between Interrogation and General Questioning

Interrogation General Questioning

Guilt-seeking questions Information-gathering questions Conversation intended to elicit a response Conversation not intended to elicit a response

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you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you’ve talked to a lawyer. (p. 198)

Even though the warnings in this version suggested that counsel would only be provided at court, the Supreme Court held, in a 5 to 4 decision, that these warnings “touched all the bases required by Miranda” (p. 203). Thus, as long as all the essential Miranda information is communicated, simple departures will not render a confession thereby obtained inadmissible in a criminal trial.

Another factor involving the substance and adequacy of the Miranda warnings concerns the role of additional, unnecessary information. If more information than the original Miranda warnings is provided to a suspect, will any subsequent confession be inadmissible? For example, must the defendant be advised of the consequences of deciding to answer questions? The case of Colorado v. Spring (479 U.S. 564 [1987]) is a useful point of departure. There, the defendant was arrested and questioned on suspi- cion of transporting stolen firearms. He was also questioned about a homicide. He admitted that he had been given his Miranda warnings and that he understood them; however, he argued that the statements he made about the homicide were not admissi- ble because he had not been informed that he was going to be questioned about the homicide (i.e., he was arrested on suspicion of transporting stolen firearms). Unfortunately for the defendant, the majority held that “a suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to deter- mining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege” (p. 577).

A similar issue came up in Florida v. Powell (No. 08-1175 [2010]), a case in which the following was added to the Miranda warning: “You have the right to use any of these rights at any time you want during this interview.” The Supreme Court held that

DECISION-MAKING EXERCISE 8.6

Incriminating Evidence and Interrogation

Police officers lawfully executed a search warrant on Don Cheney’s house. Cheney was not at home, but the officers were let into the house by his wife. When Cheney arrived at home, he was immediately arrested. He was then seated on the living room couch, and one of the officers brought in a potted marijuana plant and placed it on the coffee table in front of him. When Cheney saw the plant, he

began crying and said, “OK, you got me. The plant is mine. As you probably know, there are plenty more where that came from.” At trial, Cheney sought to have his statement suppressed on the grounds that a custodial interrogation without the Miranda warnings took place in his living room on the night of the search. How should the court decide?

DECISION-MAKING EXERCISE 8.7

Another Interrogation?

The police permitted a man who was the suspect in a murder investigation to converse with his wife at the police station where he was being held. Their conversation occurred during the presence of a police officer and was recorded. The man made an incriminating response during

the conversation, which was later introduced at his trial for the murder of his child. The man argued that he had been subjected to the functional equivalent of an interrogation when the police officer was present with a tape recorder. Is he correct?

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advising a suspect that he or she has the right to talk with an attorney before answering any questions and that the suspect can invoke that right at any time during questions conformed to Miranda.

To ensure that the Miranda warnings are read properly, most police departments have a policy describing what that should entail. Figure 8.4 provides an example of one such policy, from the San Bernardino, California, Police Department.

Waiver of Miranda. In Miranda, the Supreme Court stated that if a person talks after he or she has been read the warnings, “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel” (p. 475). Furthermore, “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained” (p. 475). According to the Supreme Court:

Whatever the testimony of the authorities as to waiver of rights by an ac- cused, the fact of lengthy interrogation or incommunicado incarceration be- fore a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventu- ally made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege. Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. (p. 476)

In recent years, the courts have interpreted this language loosely. That is, whereas Miranda declared that a waiver should be viewed with considerable caution, later deci- sions have suggested that the burden of demonstrating a valid waiver is not difficult to meet. For example, in Colorado v. Connelly, the Court held that the government need only show the validity of a waiver by a “preponderance of evidence.” And in Fare v. Michael C., the Court held that the “totality of the circumstances approach is adequate to determine whether there has been a waiver” (p. 725). This latter test is not unlike the due process voluntariness test, discussed earlier in this chapter. It is used to assess juve- nile waivers, as well.

Must the waiver be express? That is, must a person affirmatively state some- thing to the effect that “I am willing to answer questions” for a waiver of Miranda to take place? The answer to this question is, “no.” In the past, the Court preferred an

DECISION-MAKING EXERCISE 8.8

Were the Miranda Rights Read Properly?

William Wentworth was interrogated while in police custody. He wore an expensive suit, sported lavish jewelry, and otherwise exhibited an aura of financial success. Before being interrogated, he was read the following rights: “You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to talk with an attorney, either retained by you or appointed by the

court, before giving a statement, and to have your attorney present when answering any questions.” Wentworth made an incriminating statement during the interrogation and later moved to suppress it on the grounds that he was not informed that counsel would be provided if he was indigent. How should the court decide?

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FIGURE 8.4 Miranda Advisement Policy (San Bernardino, CA, Police Department)

STANDARD OPERATING PROCEDURE CHAPTER #15 PROCEDURE #1

PROCEDURE FOR MIRANDA ADVISEMENT (Revised) 10-26-88

PURPOSE

To ensure uniformity when advising persons of their Miranda rights.

PROCEDURE

It is not necessary that the defendant sign a written waiver of his rights. The law only requires that the waiver be free, intelligent, and voluntary. The Miranda warning should always be read to the suspect rather than relying on memory, using the following wording:

1. You have the right to remain silent. 2. Anything you say can and will be used against you in court. 3. You have the right to talk with an attorney and to have an attorney present before

and during any questioning. 4. If you cannot afford an attorney, one will be appointed free of charge to represent

you before and during any questioning.

After the warning and in order to secure a waiver, the following questions should be asked and an affirmative reply secured to each question. The officer should always make a record of the exact words used by the defendant when he answers each of the following questions.

1. Do you understand the rights I have just explained to you? 2. With these rights in mind, do you wish to talk to me/us now?

When the person being advised of his Miranda rights speaks only Spanish, the following waiver shall be read:

1. Usted tiene el derecho de no decir nada. 2. Cualquier cosa que usted diga puede usarse contra usted y se usara contra usted

en una corte de leyes. 3. Usted tiene el derecho de hablar on un abogado, y de tener un abogado presente

antes y durante cualquier interrogacion. 4. Si usted no puede pagarle a un abogado, uno le sera nombrado gratis para que le

represente a usted antes ye durante la interrogacion.

Renucia

1. ¿Entiende usted cada uno de los derechos que acabo de explicarle a usted? ¿Si o no? 2. ¿Teniendo en cuenta estos derechos suyos, desea usted hablar on nosotros ahora?

¿Si o no?

Source: Chapter 15, Procedure 1, “Use of Force,” from Standard Operating Procedure, San Bernardino,

California, Police Department (rev. December 22, 2004). Reprinted with permission.

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express waiver. But in Miranda, the Court noted that “a valid wavier will not be presumed.” Similarly, in Westover v. United States (a case joined with Miranda), the Court stated that an articulated waiver is required before a confession will be considered admissible.

However, in North Carolina v. Butler (441 U.S. 369 [1979]), the Court decided other- wise. According to Justice Stewart, “The question [of a waiver] is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived his rights delineated in the Miranda case” (p. 373). Further, a “course of conduct indicating waiver” (such as the suspect deciding to converse with the police) is sufficient for a valid waiver to take place. Based on this decision, the current rule is that the govern- ment must show a valid waiver based on “the particular facts and circumstances sur- rounding [the] case, including the background, experience, and conduct of the accused” (pp. 374–375). In other words, the courts now take a case-by-case approach in determin- ing whether Miranda waivers are obtained legally.

As was made clear in Butler, a valid Miranda waiver requires a showing that the waiver was knowing and intelligent. What, then, is a knowing and intelligent waiver? There is no clear answer to this question, but the Court has noted that a full and complete understanding of the Miranda warnings is not necessary for a valid waiver to take place. This was the decision reached in Connecticut v. Barrett (479 U.S. 523 [1987]). In that case, the defendant refused to give the police any written statements before he talked to an attorney. He did state, however, that he had no problem talking to the police. As it turned out, the defendant thought that only written statements could be used against him in court. The Court called his actions “illogical” but nonetheless held that his oral statements were admissible. A similar conclusion was reached in Berghuis v. Thompkins (08-1470 [2010]). The Court held that “where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.”

Another case focusing on the knowing and intelligent requirement was Wyrick v. Fields (459 U.S. 42 [1982]). In that case, the defendant expressed some confusion about the duration of a Miranda waiver. He had agreed to take a polygraph examination without counsel present. After the examination, he also answered ques- tions from the examiner about his feelings concerning the examination, which led to him supplying incriminating information. When the defendant’s statements were used against him, he argued that neither he nor his attorney believed that the poly- graph procedure also included post-examination questioning. However, the Supreme Court pointed out that “it would have been unreasonable for Fields [the defendant] and his attorney to assume that Fields would not be informed of the poly- graph readings and asked to explain any unfavorable result” (p. 47). In addition, the Court concluded that “the questions put to Fields after the examination would not have caused him to forget the rights of which he had been advised and which he had understood moments before” (p. 49).

Two additional Supreme Court decisions focused on whether the police can use trickery to obtain a Miranda waiver and/or statement. In Colorado v. Spring, the Court held that trickery had not taken place when the police failed to advise the defendant that he would be questioned about a different crime than the one for which he was ar- rested. It did point out, however, that “any evidence that the accused was . . . tricked . . . into a waiver will, of course, show that the defendant did not voluntarily waive his privilege” (p. 575).

In another interesting case, Moran v. Burbine, the Supreme Court held that a confes- sion was validly obtained even though the police questioned the defendant after assuring his attorney that he would not be questioned until the following day. In a 6 to 3 decision,

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the Court held that this action did not result in a coerced confession. As Justice O’Connor noted, “[T]he same defendant, armed with the same information and confronted with precisely the same police conduct, would have knowingly waived his Miranda rights had a lawyer not telephoned the police station to inquire about his status” (p. 422).

In light of these two cases, it seems somewhat difficult to determine what consti- tutes trickery. A general rule is this: If officials lead a defendant to believe that he or she has no right to remain silent, then trickery is taking place. However, if the police merely lead a defendant to believe there is no point in remaining silent (as in Butler, Barrett, Fields, Spring, and Burbine), then any subsequent incriminating statements that are made will probably be viewed as knowing and intelligent.

Before moving on, it is worth mentioning that in addition to the requirement that a valid Miranda waiver must be knowing and intelligent, it must also be voluntary. The test for voluntariness is similar to the due process voluntariness test discussed earlier in this chapter. Threats, physical force, and the like can lead to defendants issuing invol- untary confessions. However, in Fare v. Michael C., the Court held that the confession obtained from a 16-year-old was not involuntary. In a strongly worded dissent, Justice Powell argued that the juvenile in this case “was immature, emotional, and unedu- cated, and therefore was likely to be vulnerable to the skillful, two-on-one, repetitive style of interrogation to which he was subjected” (p. 733). A safe rule is that the police must engage in seriously questionable conduct for the voluntariness requirement of a Miranda waiver to be violated.

Again, to be safe, many police departments require that each suspect completes a Miranda waiver before interrogation commences. Doing so helps ensure that the waiver is documented. An example of a Miranda waiver form, from the San Bernardino, California, Police Department, is reprinted in Figure 8.5.

In a recent twist on the notion of Miranda waivers (United States v. Patane, 542 U.S. 630 [2004]), the Supreme Court considered whether police officers’ failure to complete the Miranda warnings—after the suspect interrupted midway through by saying, “I understand my rights”—violated the Fifth Amendment. In that case, after the suspect had interrupted the reading of Miranda and said he understood his rights, he informed police of the location of a pistol. He was indicted for possession of a firearm by a convicted felon and sought suppression of the pistol, claiming his Fifth Amendment privilege was violated. The Supreme Court disagreed.

Questioning after Assertion of One’s Right to Remain Silent. As a general rule, questioning must cease once the accused asserts his or her right to remain silent. According to the Supreme Court in Miranda:

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. . . . Without the right to cut off questioning, the setting of in-custody interroga-

DECISION-MAKING EXERCISE 8.9

The Circumstances for a Voluntary Waiver

Fred Nicholas was arrested for murder, taken to the police station, and advised of his Miranda rights. He stated that he wished his attorney could be present but that he was away on business. Given that, Nicholas said that he “might as well talk.” Unknown to Nicholas, his attorney was in town after

all, had heard about Nicholas’s arrest, and had tried unsuc- cessfully to contact him. In fact, the police had explicitly refused to let Nicholas meet with his attorney. Nicholas made an incriminating statement. Should it be admissible at trial?

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FIGURE 8.5 MirandaWaiver Form (San Bernardino, CA, Police Department)

WAIVER

I have been advised that:

1. I have the absolute right to remain silent.

2. Anything i say can and will be used as evidence against me in court.

3. I have the right to be represented by an attorney and to consult with him before making any statement or answering any questions and I have the right to have an attorney present during any questioning.

4. If I cannot afford an attorney, one will be appointed by the court, free of charge, to represent me before any questioning, if I desire.

I understand these rights. these rights have been explained to me. With these rights in mind, I am willing to talk to officers about the charges against me.

Date___________________________ Signed________________________

Witness________________________ Witness________________________

Source: San Bernardino, California, Police Department. Reprinted with permission.

Michigan v. Mosley (423 U.S. 96 [1975])

tion operates on the individual to overcome free choice in producing a state- ment after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. . . . If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. . . . If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time. (pp. 473–474)

However, there is at least one circumstance in which the police can question a sus- pect after he or she has asserted the Miranda rights. In Michigan v. Mosley (423 U.S. 96 [1975]), the Supreme Court permitted questioning after an assertion of Miranda. In that case, two hours after the defendant had stated that he did not want to talk, a different police officer confronted him in a different room about another crime and read him the Miranda rights for a second time. After this, the man made incriminating statements. In a 7 to 2 decision, the Court held that the suspect’s Miranda rights had been “scrupu- lously honored.” The Court said that the second officer’s actions were acceptable because “the police here immediately ceased the interrogation, resumed questioning

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New York v. Quarles (467 U.S. 649 [1984])

Maryland v. Shatzer (08-680 [2010])

only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation” (p. 106).

The key to Michigan v. Mosley was that the second set of questions concerned a separate crime. What if police had continued to ask questions about the same crime? Had they done so immediately, the questioning would have been inappropriate. But the issue is less than black and white according to the Supreme Court’s recent decision in Maryland v. Shatzer (08-680 [2010]). In that case, police (albeit a different officer) resumed questioning about the same crime more than two weeks after the suspect was released following initial questioning. The suspect was reread his Miranda rights, which he then waived. He confessed to various crimes of sex abuse. The Supreme Court decided that his confession was admissible, in part because “[h]is change of heart [was] . . . likely attributable to the fact that further deliberation in familiar sur- roundings [had] caused him to believe (rightly or wrongly) that cooperating with the investigation [was] in his interest.”

The Public Safety Exception to Miranda. On some occasions, custodial interrogation is permissible without the Miranda warnings. Specifically, if public safety is in jeopardy, no warnings are required. This was the decision reached in New York v. Quarles (467 U.S. 649 [1984]). There, the Court held that the warnings need not be given if the suspect could have endangered public safety.

The facts from Quarles are as follows: After receiving information that a man with a gun had just entered a supermarket, Officer Kraft, along with three other officers, entered the store. Kraft spotted the defendant, drew his gun, and ordered the man to stop and put his hands over his head. When the officers frisked the man, they found an empty shoulder holster on him. When they asked where the man had put the gun, he replied, “The gun is over there.” Officer Kraft retrieved the revolver and then placed the man under arrest and read him the Miranda warnings. The trial court and the lower appellate courts excluded the gun on the grounds that it was obtained in violation of Miranda (i.e., the man had not been advised of his right to remain silent at the time the gun was found).

The Supreme Court disagreed. Justice Rehnquist wrote the majority opinion, arguing that rigid application of Miranda is not always warranted, particularly when public safety is a concern:

[T]he need for answers to questions in a situation posing a threat to public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination. We decline to place offi- cers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warn- ings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them. (pp. 657–658)

The Court also made it clear that the appropriate test for determining whether a threat to public safety exists is an objective one—that is, one based on what a rea- sonable person in the same circumstances would believe: “[W]here spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the [public safety] exception . . . should not be made to depend on

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Dickerson v. United States (530 U.S. 428 [2000])

post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer” (p. 656). The majority in Quarles apparently believed that an objec- tive threat to public safety existed. Insofar as the officers did not know where the gun was located, not knowing “obviously posed more than one danger to the public safety: an accomplice might make use of it [or] a customer or employee might later come upon it” (p. 657).

The Quarles decision is a controversial one. As Justice O’Connor noted in disagree- ment with the newly issued public safety exception to Miranda (though not with the majority’s ultimate decision):

Miranda has never been read to prohibit the police from asking questions to secure the public safety. Rather, the critical question Miranda addresses is who shall bear the cost of securing the public safety when such questions are asked and answered: the defendant or the state. Miranda, for better or worse, found the resolution of that question implicit in the prohibition against compulsory self-incrimination and placed the burden on the State. (p. 664)

Quarles, by contrast, appears to place the burden on the defendant. It does so, in Justice O’Connor’s view, not by ensuring that public safety is preserved but by creating a Miranda loophole that helps ensure that otherwise inadmissible evidence can be used against the defendant.

CHALLENGING MIRANDA The Miranda decision was not without controversy. In 1968, shortly after the decision was announced, Congress passed a Crime Control Act that, among other things, attempted to overrule the Miranda decision. The statute, codified as 18 U.S.C. Section 3501, states that in any federal prosecution, a confession “shall be admissible in evidence if it is voluntarily given.” Under the law, suspects are not required to be advised of their right to counsel, their right not to incriminate them- selves, and so on.

For several years, Section 3501 remained dormant. The U.S. attorneys general have known that to utilize the statute would be to challenge the authority of the U.S. Supreme Court. But critics of Miranda were looking for an opportunity to bring Section 3501 before the Court. That opportunity arose in 2000: Charles Dickerson was indicted for bank robbery and related crimes. He moved to suppress a statement he made to Federal Bureau of Investigation (FBI) agents on the ground that he had not received his Miranda warnings. The district court granted Dickerson’s motion to suppress but also noted that the confession was voluntary, despite the apparent Miranda violation.

Then, the Court of Appeals for the Fourth Circuit held (in a 2 to 1 decision) that “Congress, pursuant to its power to establish the rules of evidence and procedure in the federal courts, acted well within its authority in enacting Section 3501, [and] Section 3501, rather than Miranda, governs the admissibility of confession in federal court” (United States v. Dickerson, 166 F.3d 667 [4th Cir. 1999], p. 671). The case, Dickerson v. United States (530 U.S. 428 [2000]), then went before the Supreme Court. In a 7 to 2 opin- ion, Chief Justice Rehnquist wrote for the Court:

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. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interro- gation in both state and federal courts. (p. 431)

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Couch v. United States (409 U.S. 322 [1973])

The Court further noted:

Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. . . . While stare decisis is not an inexorable command, particularly when we are interpreting the Constitution, even in constitutional cases, the doctrine carries such persua- sive force that we have always required a departure from precedent to be supported by some special justification.

We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. (p. 443)

OTHER RECENT MIRANDA DECISIONS In Chavez v. Martinez (538 U.S. 760 [2003]), the Supreme Court seems to have shifted its view on Miranda. In that case, a police officer interrogated a man while he was receiving treatment for a gunshot wound. The man was not advised of his Miranda rights. He was never charged with a crime, but later sued under 42 U.S.C. Section 1983 (see Chapter 2), arguing that his constitutional rights were violated. The Supreme Court disagreed because the man was not compelled to be a “witness” against himself in a “criminal case.” This decision would seem to suggest Miranda warnings are never required, unless statements obtained without the warnings are actually used against the accused in a criminal case.

In Missouri v. Seibert (542 U.S. 600 [2004]), the Supreme Court made it clear that Miranda warnings must be given before interrogation commences. In that case, the accused was interrogated—without Miranda warnings having been read—and she con- fessed. She was then advised of her Miranda rights and “re-confessed.” The Supreme Court declared that the interrogating officer’s pre-Miranda questioning was improper. The confession was deemed inadmissible at trial.

The Exclusionary Rule and Confession Analysis

It is important to focus on the role of the exclusionary rule in the confession analysis. It is often said that the exclusionary rule applies only to the Fourth Amendment. Part of the reason for this is that the Fifth Amendment essentially contains its own exclusionary rule by prohibiting compulsion of testimony. Whatever view one takes, the debate is largely semantic. In the end, evidence obtained in violation of any constitutional amendment will not be admissible in a criminal trial.

Generally speaking, a confession obtained in violation of Miranda or some consti- tutional provision will be excluded. However, just because a confession is obtained ille- gally does not mean that any subsequently obtained evidence will automatically be excluded. In fact, illegally obtained statements are themselves considered admissible in certain instances. Accordingly, the following subsections focus on three lines of cases involving confessions and the exclusionary rule: (1) standing cases, (2) impeachment cases, and (3) “fruit of the poisonous tree” cases.

CONFESSIONS AND STANDING For a confession (or evidence thereby obtained) to be excluded, the person arguing for exclusion must have standing; that is, one person can- not seek to exclude the confession of another, even if that confession was obtained in violation of Miranda. As noted in Couch v. United States (409 U.S. 322 [1973]), being advised of Miranda is considered a personal right. Thus, a person arguing for exclusion of an (unconstitutionally obtained) incriminating statement must have standing;

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United States v. Bayer (331 U.S. 532 [1947])

Harris v. New York (401 U.S. 222 [1971])

otherwise, the statement and subsequent evidence will be deemed admissible. (Standing was covered in Chapter 3.)

CONFESSIONS AND IMPEACHMENT 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. Also, the rules vary depending on whether it is a Miranda case or Sixth Amendment right to counsel case.

For an example of a Miranda case, consider Harris v. New York (401 U.S. 222 [1971]). The prosecution sought to introduce an out-of-court statement that was inconsistent with the defendant’s in-court testimony, even though the out-of-court statement was obtained in violation of Miranda. The Supreme Court held that the out-of-court-state- ment was admissible—to only for impeachment purposes, not to be used as evidence against Harris. The Court noted further that such a statement must be obtained volun- tarily, which it was in Harris’s case (see also Oregon v. Hass, 420 U.S. 714 [1975]; New Jersey v. Portash, 437 U.S. 385 [1978]).

Note that for a statement obtained in violation of Miranda to be admissible for impeachment purposes, the statement must, in fact, be an oral communication. The prosecution cannot introduce evidence of an accused’s out-of-court silence for impeachment purposes. This issue arose in the case of Doyle v. Ohio (426 U.S. 610 [1976]), in which after the defendant’s in-court exculpatory story, the prosecution sought to introduce evidence that the defendant did not offer the same explanation to the police. The Supreme Court held that the defendant’s silence was not admissi- ble for purposes of impeachment (see also Wainwright v. Greenfield, 474 U.S. 284 [1986]).

As for the Sixth Amendment approach, in Michigan v. Harvey (494 U.S. 344 [1990]), the Supreme Court held that a statement obtained in violation of the right to counsel (police questioned with the defendant after he invoked his right to counsel and later waived it) could be admitted for impeachment purposes. Recently, in Kansas v. Ventris (No. 07-1356 [2009]), the Supreme Court reached a similar conclusion. In that case a police relied on an informant to obtain a statement from Ventris—after Ventris had been formally charged with a crime. It admitted the statement, but for impeach- ment purposes, not as part of the government’s case in chief, even though the incrimi- nating statement was obtained in violation of the Sixth Amendment. The difference is subtle, but important.

CONFESSIONS AND “FRUIT OF THE POISONOUS TREE” As discussed in Chapter 2, unconstitutionally obtained derivative evidence is not admissible under the so-called “fruit of the poisonous tree” doctrine. However, the Supreme Court has not been so quick to apply the same rule in the case of illegally obtained confessions. It has held that physical evidence obtained in violation of Miranda is admissible, as long as the informa- tion supplied by the accused is voluntary in the due process sense.

The first case of note concerning the derivative evidence doctrine in the confession context was United States v. Bayer (331 U.S. 532 [1947]), a case decided well before the Miranda decision was handed down. There, the Court held that the Fourth Amendment “fruit of the poisonous tree” doctrine did not control the admissibility of improperly obtained confessions.

Then, in Michigan v. Tucker (417 U.S. 433 [1974]), a case decided after Miranda, but involving an interrogation that took place before Miranda, the Court suggested that it had not changed its position. In Tucker, a suspect was questioned about a rape with- out being advised of his right to counsel. Tucker claimed he was with a friend at the

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time of the crime. The police then obtained incriminating evidence against Tucker from the friend. Although this information was clearly fruit of the initial interroga- tion, the Court stated that “[t]he police conduct at issue here did not abridge respon- dent’s constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by this Court in Miranda to safe- guard this privilege” (p. 446). In other words, the Court saw no reason to exclude the friend’s statement.

In Oregon v. Elstad (470 U.S. 298 [1985]), the Court reaffirmed its Tucker decision, making clear that it would continue to treat Miranda as a prophylactic rule, at least inso- far as it governs the admissibility of derivative evidence. What’s more, derivative evidence obtained from a violation of Miranda is admissible but only if voluntarily obtained. In sum, these decisions govern derivative evidence, not the initial incriminat- ing statements (such as Tucker’s claim that he was with a friend). The latter are inadmissible when obtained in violation of the Fifth Amendment.

THE IMPORTANCE OF DOCUMENTING A CONFESSION

So far, this chapter has been concerned with the methods by which the police can extract incriminating information from a criminal suspect. Assuming the police are suc- cessful in terms of eliciting an incriminating response, it is not enough for the suspect to say, “I did it” or to otherwise offer some form of verbal confession. In fact, if the police hand the suspect a pencil and paper and say, “Write down your confession,” this will not be enough, either. Instead, the police need to follow specific procedures for docu- menting and reporting a confession.

According to one source,2 the police should document every interrogation and even keep an interview log: a document containing information about the individuals in- volved in the interrogations and actions taken by both sides. A list of topics to be cited in an interview log is shown in Figure 8.6.

Also, a signed statement from the accused should be secured. First, the signed statement should identify the suspect, the investigators, and the crime involved. Second, the statement should describe, in language the suspect can understand, the details of the crime, what the suspect did, and how he or she did it. The statement should then be carefully reviewed with the suspect, even read aloud, so its content is clear. Finally, the statement should be signed by the suspect, the officer who conducted the interrogation, and at least one witness—preferably another officer. Figure 8.7 shows a model statement form for securing a written confession from a criminal suspect.

2 T. T. Burke, “Documenting and Reporting a Confession with a Signed Statement: A Guide for Law Enforcement,” FBI Law Enforcement Bulletin 70 (2001): 17–22.

DECISION-MAKING EXERCISE 8.10

Should the Exclusionary Rule Apply?

Assume the police have Jack Richter in custody and are inter- rogating him about his suspected involvement in a gruesome murder. They do not advise him of his Miranda rights. Further, one of the officers, who is notorious for his aggres- sive interrogation techniques, holds a .357 revolver (loaded with one round) to Richter’s head and plays “Russian

roulette” in order to obtain a confession. Richter succumbs to the pressure and admits to the murder. He also points the police to the location of the murder weapon. Obviously, his statement will not be admissible. What about the murder weapon?

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FIGURE 8.7 Sample Form for Securing a Written Confession: White-Collar Crime

Signed Statement Format White Collar Crime Sample

I, (subject’s name and address) hereby make the following free and voluntary state- ment to (officer’s official name and title) who has identified himself/herself as a (title of officer and name of department or agency). I have been advised that I have been inter- viewed concerning my involvement in (phrase describing scheme or nature of crime and victim, such as “the misappropriation and theft of $100,000 from the First National Bank while I was employed there during 1999”).

I was born on (subject’s date of birth) at (subject’s place of birth). I attended (last school attended) and completed (last grade or graduation date). I read and write the English language.

FIGURE 8.6 Content of Typical Interview Log

Interview Log

1. Identity of person interviewed 2. Identity of officers conducting interview 3. Location of interview 4. Date of interview 5. Time of arrest, if applicable 6. Location of arrest 7. Identity of officers making arrest 8. Time interview began 9. Time officers informed subject or suspect of his or her rights, and if more than one

officer, name of officer advising subject or suspect 10. Time subject or suspect waived his or her rights 11. Time interview concluded 12. Time preparation of statement commenced 13. Identity of person preparing statement 14. Time statement completed 15. Time subject or suspect reviewed statement 16. Time subject or suspect signed written statement 17. A record of request and complaints of subject and the action taken thereon,

such as the time a subject requests permission to call an attorney, the time he or she made a call to his attorney, the time subject complained of illness, the time and action taken on this complaint, the time subject requested food, the time and action taking on this request, and the details as to how this request was handled.

Source: T. T. Bruke, “Documenting and Reporting a Confession with a Signed Statement: A Guide for

Law Enforcement,” FBI Law Enforcement Bulletin (February 2001): 21.

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Officers should use the next few paragraphs to summarize what the subject did and how the subject did it, in his own words. Because this statement occurs after the subject’s confession, officers can assist the subject in formulat- ing the statement, using information previously provided. Officers should include any information the subject provides regarding what happened to the stolen money, how it was spent, items purchased, and other related details.

I knew that what I was doing was wrong, and I regret my actions. I wish to coop- erate with the (name of agency) investigation and get this matter resolved. (Optional para- graph, depending on circumstances and subject’s remorse)

I have read this (number of pages) page statement, have initialed all corrections, and I am signing it because it is true and correct. (The subject writes this after reading the state- ment aloud and accepting its contents.)

________________________________________________ (subject’s signature and date)

First witness: ___________________________________________________________ (officer taking statement, title, agency, location, and date)

Second witness:_________________________________________________________ (third-party individual, title, agency, location, and date)

(NOTE: Officers should always have the subject read the statement aloud to them and initial any corrections. Also, they should avoid blank lines between sentences and paragraphs in the statement.)

Source: T. T. Burke, “Documenting and Reporting a Confession with a Signed Statement: A Guide for

Law Enforcement,” FBI Law Enforcement Bulletin (February 2001): 19.

Summary

1. SUMMARIZE HOW SUSPECTS MAY USE THE FIFTH AMENDMENT TO PROTECT THEMSELVES AGAINST SELF-INCRIMINATION.

The Fifth Amendment’s self-incrimination clause is frequently relied on in challenges to the constitutional- ity 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.

2. EXPLAIN MIRANDA RIGHTS AND HOW THEY IMPACT INTERROGATIONS AND CONFESSIONS.

A confession will be thrown out, as was the decision in Miranda v. Arizona, if a suspect’s incriminating statement is a result of custodial interrogation in

which the suspect was not advised of his or her constitutional right to have counsel present. Before custodial interrogation can commence, suspects must be advised of their so-called Miranda rights.

3. SUMMARIZE 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 deliber- ately 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.

4. SUMMARIZE HOW DUE PROCESS AND VOLUNTARI- NESS IMPACT INTERROGATIONS AND CONFESSIONS.

An involuntarily obtained confession violates due process. Figure 8.8 illustrates the relationships among

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Due Process Voluntariness

• Involuntary under totality of circumstances

All three approaches applicable

Miranda • Custody • Interrogation

Sixth Amendment • Formal charges • Deliberate elicitation

FIGURE 8.8 Relationship among the Various Approaches to Confession Law

the various constitutional provisions governing police interrogation procedures. The due process voluntari- ness approach acts as a fallback and is always applic- able. The Sixth and Fifth Amendments, by contrast, apply in specific circumstances, as described. And it is possible (albeit rare) for all three provisions to come into play.

5. KNOW WHEN UNCONSTITUTIONALLY OBTAINED CON- FESSIONS 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 ob- tained voluntarily in the due process sense. Finally, the Supreme Court has held that physical evidence obtained in violation of Miranda is admissible, as long as the information supplied by the accused is volun- tary in the due process sense.

Source: Adapted from R. M. Bloom and M. S. Brodin, Criminal Procedure: Examples and Explanations, 2nd ed. (New York: Little,

Brown, 1996)

Key Terms

18 U.S.C. Section 3501 268

admission 250 confession 250 custody 256

deliberate elicitation 253

due process voluntariness approach 250

fair examination rule 246 formal criminal

proceeding 254 functional equivalent

of a question 259

interrogation 259 Miranda warnings 255 physical evidence 249 testimonial

evidence 249

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Key Cases

Fifth Amendment in General

• Brown v. United States, 356 U.S. 148 (1958) • In re Gault, 387 U.S. 1 (1967) • Couch v. United States, 409 U.S. 322 (1973)

Due Process Voluntariness Approach

• Brown v. Mississippi, 297 U.S. 278 (1936) • Williams v. United States, 341 U.S. 97 (1951) • Colorado v. Connelly, 479 U.S. 157 (1986)

Sixth Amendment Approach

• Massiah v. United States, 377 U.S. 201 (1964) • Brewer v. Williams, 430 U.S. 387 (1977) • United States v. Henry, 447 U.S. 264 (1980)

Miranda

• Miranda v. Arizona, 384 U.S. 436 (1966) • Berkemer v. McCarty, 468 U.S. 420 (1984) • California v. Beheler, 463 U.S. 1121 (1983) • Rhode Island v. Innis, 446 U.S. 291 (1980) • California v. Prysock, 453 U.S. 355 (1981) • Michigan v. Mosley, 423 U.S. 96 (1975) • Maryland v. Shatzer, 08-680 (2010) • New York v. Quarles, 467 U.S. 649 (1984) • Dickerson v. United States, 530 U.S. 428 (2000)

Exclusionary Rule and Confessions

• Couch v. United States, 409 U.S. 322 (1973) • Harris v. New York, 401 U.S. 222 (1971) • United States v. Bayer, 331 U.S. 532 (1947)

Review Questions

1. Explain the means by which compulsion can occur, in Fifth Amendment terms.

2. What is the difference between a criminal and a noncriminal proceeding?

3. What does it mean to be a witness, in Fifth Amendment terms?

4. What does it mean, in Fifth Amendment terms, to be a witness against oneself?

5. Summarize the due process voluntariness approach to interrogations and confessions.

6. What factors affect voluntariness? 7. Summarize the Sixth Amendment approach to interro-

gations and confessions.

8. Explain deliberate elicitation. 9. What are formal criminal proceedings, for purposes of

the Sixth Amendment approach to interrogations and confessions?

10. What are the Miranda warnings? 11. When does Miranda apply? 12. Citing relevant cases, distinguish between custody and

interrogation, for Miranda purposes. 13. Summarize the requirements for a valid Miranda waiver. 14. What is the public safety exception to Miranda? 15. How does the exclusionary rule operate in the context of

confessions and interrogations?

Web Links and Exercises

1. Interviewing: Read Simon and Boetig’s article about how to conduct a structured investigative interview.

URL (read the article, “The Structured Investigative Interview”): http://www.fbi.gov/stats-services/publi- cations/law-enforcement-bulletin/2007-pdfs/ june07leb.pdf (accessed February 16, 2011).

2. More on Miranda: Learn more about the Supreme Court’s important decision in Miranda v. Arizona.

URL: http://www.mirandawarning.org (accessed February 16, 2011).

3. Vague invocations of the right to counsel: What if a sus- pect makes an ambiguous reference to his or her right to counsel in the interrogation context?

Suggested URL: http://www.aele.org/interrogations.html (accessed February 16, 2011).

4. How interrogation works: Read more about how inter- rogation actually plays out.

Suggested URL: http://people.howstuffworks.com/police- interrogation4.htm (accessed February 16, 2011).

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Governance

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Distinguish between Criminal and Noncriminal Proceedings

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