1. Chapter 6 Interrogations and Confessions Grounds for excluding confession – not admissible if it is product of police violation of any of following requirements –Free and voluntary rule –4 th Amendment restrictions on investigatory stops, arrests and searches –Miranda safeguards of 5 th Amendment privilege against self incrimination during custodial interrogation – 6 th Amendment right to counsel

2. Free and Voluntary Rule Confessions are not voluntary and will be suppressed when: 1) an agent of the government exerts pressure that 2) overcomes a suspect’s free will and cause the suspect to make a statement that he would not otherwise have made.

3. Due Process Free and Voluntary Rule A. Improper pressures exerted by government –Physical force or threat of force –False promises –Trickery, deceit, or psychological coercion NOTE: Where deranged man believed that God’s voice had ordered him to confess, Supreme Court said confession OK because it was obtained without improper police conduct

4. Free and Voluntary, cont’d. B. Impact of interrogation methods –Physical force or threats of force render confession involuntary as matter of law –When pressures are less extreme, two other factors Suspects susceptibility to pressure Interview environment Arizona v Fulminante Prosecution has burden of proof and must prove by preponderance of evidence confession was voluntary

5. Factors Considered in Determining Voluntariness : Beating and torture render confessions involuntary as matter of law. When pressures are not this extreme, courts consider totality of circumstances, with emphasis on: –The pressure exerted by the police –The suspect’s degree of susceptibility –The conditions under which interrogation took place

6. Fourth Amendment Exclusionary Rule Exclusionary rule requires suppression of confessions if they are a) causally connected to b) police violation of suspects 4 th Amendment rights 4 th Amendment violations triggering exclusionary rule include illegal Terry stops, illegal arrests, and illegal searches Must be causally related to violation of suspects 4 th Amendment rights.

7. 4 th Amendment violation, cont’d Causal connection – courts will look at a) length of time between the violation and confession and b) presence of intervening circumstances, e.g consulting attorney or voluntarily returning to police station Derivative evidence – When confession is tainted by 4 th Amendment violation, the taint carries over to derivative evidence, Fruit of Poisonous Tree Doctrine

8. Overview of Custodial Interrogation After suspect in police custody, two additional requirements –Prompt arraignment statutes –Miranda rule

9. 5th Amendment Privilege Against Self- Incrimination During Police Interrogation Custody + interrogation = Miranda Miranda Rule imposes three separate duties: Warn suspect of his 5 th Amendment rights Secure a knowing, intelligent, voluntary waiver before questioning Cease interrogation if suspect wants to remain silent or consult with attorney

10. Dickerson v United States Issue: whether Miranda decision established a judicially created rule of evidence forbidding admission of unwarned confessions or a constitutional right. Held, Miranda warning requirement was constitutionally based and Congress cannot override it by statute.

11. Custodial Interrogation Defined Custody exists when the objective circumstances surrounding an encounter would cause a reasonable person in suspect’s shoes to experience the situation as an arrest. Factors that might create arrest-like atmosphere include: –prolonged questioning, isolated surroundings, threatening presence of several police, display of weapons, physical touching, accusatory attitude, language indicating compliance might be compelled, handcuffs or physical restraint, telling person he is prime suspect.

12. To be considered “in custody,” suspect must be aware interrogator is police officer. Miranda not required for interrogation by undercover agent or informant. However, use of undercover agent or informant to elicit incriminating statements from accused after formal charges have been filed is 6 th Amendment violation

13. Suspects not in custody during Terry stops, therefore, no Miranda required. See Berkemer v McCarty. Note: Difference between seizure (when reasonable person in suspect’s shoes would not feel free to leave) and custody (whether reasonable person in suspect’s shoes would experience encounter as an arrest).

14. Interrogation Defined Includes both express questioning and functional equivalent. “Functional equivalent” refers to words or actions on part of police (other than those normally attendant to arrest and custody) that police should know are reasonably likely to elicit an incriminating response from suspect.

15. Express Questioning Volunteered statements without an interrogation are admissible despite lack of Miranda Miranda not required for routine booking questions Miranda not required before fingerprinting, photographing, lineups, breathalyzer, blood- alcohol tests, field sobriety tests, etc. These do not involve custodial interrogations.

16. Functional Equivalent of Express Questioning Words or actions on part of police that they should know are reasonably likely to elicit an incriminating response. Rhode Island v Innis – While two officers transporting Innis to police station after his arrest, engage in conversation between themselves concerning missing shotgun. Held, statement not made in response to interrogation

17. Public Safety Exception – Police may delay Miranda warnings when they are confronted with an emergency that requires immediate action to protect public safety or their own safety. Benson v State – Police ask how much crack he had eaten, Benson said one rock. Held, public safety exception applies not only to questions asked out of objectively reasonable concern for public safety, but also for objectively reasonable concern for suspect’s safety.

18. Procedural Requirements for Custodial Interrogations: Miranda Warnings You have right to remain silent Anything you say can and will be used against you in court of law You have right to consult with attorney and have attorney present during questioning If you cannot afford an attorney, one will be appointed for you prior to questioning

19. Waiver After Miranda warnings are given, officer must obtain a knowing, intelligent, and voluntary waiver of suspect’s Miranda rights before questioning may begin.

20. Cessation of Questioning Even after an initial waiver, suspect remains free to assert right to remain silent or to speak with an attorney at any point during the interview. After suspect makes a clear and unambiguous assertion of either right, all questioning must cease immediately. However, police may ignore ambiguous or equivocal assertion and not required to clarify.

21. Resumption of Questioning After suspect makes clear and unambiguous request for attorney, police may not thereafter question suspect about any offense until counsel is present unless suspect initiates further communication. After clear and unambiguous assertion of right to remain silent, police may not question suspect about the same offense unless suspect initiates further communication. Police may initiate questioning about unrelated offense after waiting a sufficient period of time.

22. Sixth Amendment Right to Counsel During Interrogations After Formal Charges are Filed Sixth Amendment attaches when adversary judicial proceedings are formally initiated by way of preliminary hearing, indictment, information, or arraignment. Arrest, with or without warrant, does not trigger 6 th Amendment right to counsel. Once 6 th Amendment has attached, police may not deliberately elicit incriminating statements from an accused about the charged offense unless counsel is present or accused makes a valid waiver of 6 th Amendment right to counsel

23. Sixth Amendment right to counsel is offense-specific. Applies only when police interrogate accused about the charged offense; they do not apply when police interrogate an accused about a separate, uncharged offense. However, if accused is in custody when interrogation about unrelated offense, must be Mirandized.

24. Accused’s ability to waive Sixth Amendment right to counsel 1.Once accused has retained or requested appointed counsel, subsequent waiver given during police-initiated contact is ineffective. Michigan v Jackson. 2.Accused who has not yet retained or requested appointed counsel is capable of making valid 6 th Amendment waiver of right to counsel during police-initiated contact. 3.No restrictions on ability to waive 6 th during contact accused initiates.

25. Undercover agents and informants Using undercover agents or informants to elicit incriminating statements from an accused after formal charges have been filed is a violation of Sixth Amendment right to counsel.

26. Use of Inadmissible Confessions for Impeachment Inadmissible confession may be used for impeachment if the following conditions are met: 1.Defendant takes stand to testify on own behalf 2.He tells jurors different story than what he told police. 3.Confession offered for impeachment was given voluntarily.

27. Restrictions on Use of Derivative Evidence Fruit of the poisonous tree doctrine requires suppression of evidence derived from confessions obtained in violation of due process free and voluntary requirement, Fourth Amendment search and seizure clause, and Fifth Amendment privilege against self-incrimination, and Sixth Amendment right to counsel will result in suppression of derivative evidence.

28. Evidence derived from confessions obtained without Miranda warnings, in contrast, is admissible if the confession was voluntary and the violation of the Miranda rule was not deliberate. See Missouri v Seibert. Prosecution can’t introduce the unwarned statement in its case-in-chief, but can admit derivative evidence discovered as a result of the statement.

29. Restrictions on Use of Confessions Given by Accomplices Defendant lacks standing to object to use of accomplice’s confession as evidence against him on grounds that police violated accomplice’s constitutional rights to obtain the confession. Only person whose constitutional rights have been invaded has standing to object to admission to confession on grounds that it was obtained in violation of Constitution.

30. Sixth Amendment guarantees that accused shall have right to confront witnesses against him. This guarantee precludes the government from introducing a confession given by one accomplice implicating another as evidence against the latter unless the government can prevail on the accomplice who made the statement to appear at trial and testify.

31. Requirement of Corroboration of Valid Confession Many states impose statutory restriction on admission of confessions called corpus deliciti or independent proof requirement. Prosecution must put on at least some evidence, independent of the confession, that the crime confessed was in fact committed before a confession will be received into evidence.