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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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245

CHAPTER OUTLINE

Interrogations and Confessions

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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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Chapter 8 • Interrogations and Confessions 247

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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Chapter 8 • Interrogations and Confessions 249

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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250 Part 3 • Interrogations, Confessions, and Identification Procedures

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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Chapter 8 • Interrogations and Confessions 251

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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252 Part 3 • Interrogations, Confessions, and Identification Procedures

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 …