1. Criminal Procedure: Theory and Practice, 2d.by
Jefferson L. Ingram

2. CHAPTER 11
Confession and the Privilege against Self-incrimination

3. 1. Introduction to the Fifth Amendment Privilege
“No person shall be compelled in any criminal case to be a witness against himself. . . “
General Theory: A person shall not have to assist the prosecution with testimony to help convict that individual.

4. Introduction to the Fifth Amendment Privilege (cont.)
The Fifth Amendment: Applies to state criminal practice.
Rationale: Fourteenth Amendment due process clause requires the privilege.
Privilege against self-incrimination helps assure reliability and truthfulness of evidence.
Coerced testimony: motivated to end pain, mental strain, or torture and could be false.

5. 2. Original Intent and the Fifth Amendment
Framers of the Fifth Amendment:
Intended it to apply only to the federal government.
The privilege covers only testimonial evidence.
In state cases, before 1964, privilege depended on state constitutions and law.

6. 3. Privilege against Self-incrimination: Excludable Evidence
General Rule: Evidence obtained in violation of the privilege against self-incrimination excluded.
Defendant: can
refuse to testify.
may testify.
Must be defendant’s voluntary decision.

7. 4. The Fourteenth Amendment Alterations
In 1868, after the American Civil War:
Fourteenth Amendment adopted.
Contained due process guarantee.
Required states to treat people with fundamental fairness.
Amendment not intended to gather first eight amendments into due process clause.

8. Real and physical evidence is not testimonial evidence.
5. Required Production of Non-Testimonial Evidence and the Fifth Amendment
Prosecution may compel defendant to “give up” non-testimonial evidence.
Real and physical evidence is not testimonial evidence.

9. Private business records: not covered by Fifth Amendment privilege.
5. Required Production of Non-Testimonial Evidence and the Fifth Amendment (cont.)
Private business records: not covered by Fifth Amendment privilege.
Defendant must give blood, fingerprint, saliva, urine, and allow measurement, photos, and voice, handwriting and DNA samples, etc.
Schmerber v. California: must give blood sample, similar evidence; not privileged.

10. Case 11. 1, Leading Case Brief: Schmerber v. California, 384 U. S
Facts: Police had doctor draw blood sample from defendant driver following injury-auto accident. Defendant argues his privilege against self-incrimination violated by using his own blood at trial.
Issue: Is privileged against self-incrimination violated by using own blood evidence against defendant?
Held: No.
Rationale: Blood alcohol level is physical and scientific fact; defendant is not forced to testify when blood evidence used against him. This was not testimonial communication forced from defendant’s own mouth.

11. 5. Required Production of Non-Testimonial Evidence and the Fifth Amendment (cont.)
Permissible to force one to model clothing:
Justice Holmes noted: Fifth Amendment prohibits using physical or moral force to extort testimonial communications. Holt v. United States.
United States v. Dionisio: suspect must give voice sample to grand jury and prosecutor.
Roadside videotape of impaired driver not considered testimonial; only shows physical facts. Pennsylvania v. Muniz.

12. 6. Assertion of the Privilege against Self-incrimination
The Fifth Amendment privilege: No application to businesses, corporations, labor unions, and similar entities and other artificial persons.
Privilege only assertable by holder, not a third party.
Privilege applies when testimony could incriminate in federal or state prosecutions.

13. 7. Privilege against Self-incrimination Assertable in a Variety of Contexts
Privilege may be asserted anytime:
A police officer asks a question.
A person is called as a trial witness.
A person is called as a grand jury witness.
A police officer faces internal affairs.
A parolee or probationer has a hearing.

14. 8. Prosecution Comment on Defendant’s Use of Fifth Amendment
As a general rule, the prosecution cannot make a clear adverse comment on the failure of a defendant to take the witness stand
and explain the evidence.
or to personally present a defense.

15. 8. Prosecution Comment on Defendant’s Use of Fifth Amendment (cont.)
If prosecutor could comment:
Exercise of the privilege could hurt defendant.
Could infer guilt from silence.
Would frustrate philosophy of the privilege.

16. Prosecutor may force witness to self-incriminate if:
9. An Equivalent Substitute for the Fifth Amendment Privilege: Immunity
Prosecutor may force witness to self-incriminate if:
Prosecutor offers substitute protection equal to privilege.
Witness forced to offer incriminating evidence if prosecutor grants:
Use immunity.
Transactional immunity.

17. 9. An Equivalent Substitute for the Fifth Amendment Privilege: Immunity (cont.)
Use immunity: information offered by a witness will not be used affirmatively against the individual.
Transactional immunity: prosecutor will not start a criminal case against the witness for any crimes that are the subject of the investigation.

18. To force witness testimony, immunity must offer:
9. An Equivalent Substitute for the Fifth Amendment Privilege: Immunity (cont.)
To force witness testimony, immunity must offer:
Protections that are equal to the Fifth Amendment: Use immunity.
Or protections that are greater protection than guaranteed by Fifth Amendment: Transactional immunity.

19. 10. Waiver of the Fifth Amendment Privilege
Waiver permissible:
When freely, voluntarily, knowingly, and intelligently waived.
Waive Miranda, speak to police.
Witness may take witness stand.
Suspect offers voluntary confession.

20. 10. Waiver of the Fifth Amendment Privilege (cont.)
Totality of the Circumstances Test considers:
Age, education, and intelligence.
Circumstances of any Miranda warning.
Subject’s prior legal experience.
Length and circumstances of any interrogation.
Coercion, threats, or promises offered by police.

21. 11. Confession Practice prior to the Warren Court Revolution
Originally, Fifth Amendment privilege:
No application to states.
After Fourteenth Amendment containing due process clause:
Brutal and/or tortuous interrogations excluded on due process grounds.
Confession excluded on due process grounds.

22. 11. Confession Practice prior to the Warren Court Revolution (cont.)
Brown v. Mississippi, police tortured defendants until confession extracted.
Supreme Court reversed on violation of due process of Fourteenth Amendment.
Payne v. Arkansas, Court used due process to reverse conviction.
Man threatened with mob execution involuntarily confessed; violation of due process.

23. 12. Evolution of Interrogation and Confession under the Warren Court
Malloy v. Hogan decided after Brown and Payne.
Supreme Court determined: fundamental fairness required that privilege against self-incrimination clause of Fifth Amendment be incorporated into due process clause of Fourteenth Amendment.

24. 12. Evolution of Interrogation and Confession under the Warren Court (cont.)
To be admissible: a confession must be the result of the defendant’s free and voluntary decision, unfettered by coercion, whether physical or mental.
Factors to consider:
length of the time of interrogation,
manner of questioning,
including rest periods for food, personal essentials,
opportunities for sleep.

25. 13. Modern Evolution of Interrogation and Confession
No violation of self-incrimination privilege where:
Officer interrogated injured suspect.
Suspect basically confessed.
Incriminating statements never used against him.
No violation of self-incrimination privilege where suspect:
required to participate in lineup.
had to wear specific clothing.
ordered to make voice recording.

26. 14. Personal Motivations for Confession Irrelevant
Internal personal motivations to confess irrelevant:
If police have not created reason to confess.
Mental illness or religious motivations:
Do not make confession involuntary.
Where police conduct proper: No exclusion of any confession on due process or self-incrimination arguments.

27. Case 11. 2, Leading Case Brief: Colorado v. Connelly, 479 U. S
Facts: Man with history of mental illness confessed to homicide to police officer. Miranda warnings given three times, confession continued. Defense counsel argued, involuntary confession due to religious confusion or motivation.
Issue: Where police conduct is proper, does religious motivation make confession involuntary?
Held: No.
Rationale: Absent police misconduct- there is no basis that government had deprived him of any rights. No government misconduct here. Police did not coerce confession and private motivations of confessing defendant do not produce involuntary confession.

28. 15. Involuntary Confession Not Available for Proof of Guilt
Inadmissible for proof of guilt.
Inadmissible for any purpose- even for impeachment. Rationale:
Admission violates due process.
Use violated self-incrimination prohibition.
Unknown whether confession is accurate.

29. 15. Involuntary Confession Not Available for Proof of Guilt (cont.)
Appellate court and involuntary confession:
Will affirm or reverse conviction on harmless error rule.
Where admission had no effect on outcome, affirm conviction.
Court must determine that beyond a reasonable doubt, error had no effect.
Where admission may have had effect on verdict, reverse conviction.

30. Case 11. 3, Leading Case Brief: Arizona v. Fulminante, 499 U. S
Facts: Involuntary and voluntary confessions used against defendant at murder trial. He argued for reversal because jury swayed differently by two confessions when only one was admissible.
Issue: Where involuntary confession was used against defendant, must conviction always be overturned?
Held: No.
Rationale: Not every admitted involuntary confession affects outcome of case. Only where involuntary confession results in miscarriage of justice and reviewing court cannot say beyond a reasonable doubt that the error did not affect the result, must the case be reversed.

31. 16. Involuntary Confession not Available for Impeachment
Rationale: No way to determine whether confession was true and accurate or was fabrication and false.
Secondary justification: When involuntary confessions excluded:
No incentive to secure “bad” confessions.

32. 17. Violation of Miranda: Use of Confession for Impeachment Purposes
Voluntary confessions received in violation of Miranda rules:
Admissible for impeachment purposes.
Confession was true- just excluded for guilt purposes due to Miranda violation.
If excluded from impeachment, accused could commit perjury without sanction.

33. 18. Summary
Privilege against self-incrimination allows defendant not to tell on himself or herself.
Fifth Amendment privilege assertable against government in most situations.
Involuntary confessions: not admissible to prove guilty or impeachment.