Interrogations and Confessions Constitutional Law 12th Edition The University of Adelaide, School of Computer Science 23 February 2019 Chapter 6 Interrogations and Confessions Chapter 2 — Instructions: Language of the Computer 1

Copyright © 2010, Elsevier Inc. All rights Reserved. Introduction No person shall be compelled in any criminal case to be a witness against himself . . .  — The Fifth Amendment Copyright © 2010, Elsevier Inc. All rights Reserved.

Legal Hurdles for Confessions In order to be admissible, confessions must satisfy: the due process free and voluntary rule the Fourth Amendment exclusionary rule  the Fifth Amendment privilege against self incrimination the Sixth Amendment right to counsel Copyright © 2010, Elsevier Inc. All rights Reserved.

Determining Voluntariness Voluntariness is determined by examining the totality of circumstances surrounding the confession, emphasizing: pressures exerted by police suspects degree of susceptibility conditions under which interrogation took place  Copyright © 2010, Elsevier Inc. All rights Reserved.

Copyright © 2010, Elsevier Inc. All rights Reserved. Exclusionary Rule suppression of confessions that are causally connected to a violation of the suspect’s Fourth Amendment rights when a confession is tainted beyond use, derivative evidence that would not have been discovered without the confession will also be suppressed Copyright © 2010, Elsevier Inc. All rights Reserved.

Copyright © 2010, Elsevier Inc. All rights Reserved. McNabb-Mallory Rule The McNabb-Mallory or "delay in arraignment rule" requires suppression of confessions obtained during a period of unnecessary delay in presenting the suspect to a magistrate for arraignment Copyright © 2010, Elsevier Inc. All rights Reserved.

Copyright © 2010, Elsevier Inc. All rights Reserved Miranda Rule Activated whenever police interrogate a suspect who is then in custody. To procure an admissible confession, police must: warn the suspect of his or her Fifth Amendment rights secure a knowing, intelligent, and voluntary waiver before initiating questioning cease interrogation if the suspect anytime thereafter manifests a desire to: remain silent speak to an attorney Copyright © 2010, Elsevier Inc. All rights Reserved

Custodial Interrogation custody requires: a formal arrest restraint of the suspect's freedom of action to the degree associated with formal arrest an interrogation occurs when the police:  ask investigative questions engage in other words and actions they know or should know are reasonably likely to elicit an incriminating response from the suspect Copyright © 2010, Elsevier Inc. All rights Reserved.

Copyright © 2010, Elsevier Inc. All rights Reserved. Police Questioning The Sixth Amendment right to counsel attaches when adversary judicial proceedings are initiated. Thereafter: the government is prohibited from eliciting incriminating information except: in presence of counsel when defendant gives a valid waiver the restrictions only apply to charged offense Copyright © 2010, Elsevier Inc. All rights Reserved.

Questioning Standards Fifth Amendment: Miranda phase before formal charges are lodged protection only during custodial interrogation undercover agents, informants, and jailhouse snitches permissible  Sixth Amendment: deliberate elicitation standard defendants have a right to have counsel present whenever police deliberately elicit information pertaining to the charges Copyright © 2010, Elsevier Inc. All rights Reserved.

Copyright © 2010, Elsevier Inc. All rights Reserved. Impeachment  An inadmissible confession may be used only if: the defendant takes stand and testifies on his or her own behalf the defendant tells the jurors a different story from the one told to police the confession was freely and voluntarily given Copyright © 2010, Elsevier Inc. All rights Reserved.

Copyright © 2010, Elsevier Inc. All rights Reserved. Derivative Evidence inadmissible derivative evidence: statements obtained in violation of the due process free and voluntary requirement violations of the Fourth Amendment search and seizure clause violations of the Sixth Amendment right to counsel admissible derivative evidence: statements obtained in violation of the Miranda rule, unless:  the statement was involuntary the violation was deliberate Copyright © 2010, Elsevier Inc. All rights Reserved.

Copyright © 2010, Elsevier Inc. All rights Reserved. Corpus Delecti Rule "body of the crime" requires evidence that a crime has been committed in addition to a confession Copyright © 2010, Elsevier Inc. All rights Reserved.