Interrogations and Confessions

Interrogations and Confessions

FIFTH AMENDMENT

No person shall be … compelled in any criminal case to be a

witness against himself.

Interrogations and Confessions

Constitutional Implications •4th = Exclusionary rule•5th = Privilege against self

incrimination•6th = Right to Counsel •5th = Federal Due Process•14th = State Due Process

Confessions

• Need to Voluntary• So that they can be considered trustworthy

• Incriminating statements elicited during consensual investigative techniques are always admissible

Three Phases of a Criminal Case

• Investigative Questioning• Custodial Interrogation• Prosecutorial

Torture

• Violates the “Free & Voluntary Rule”

• Confessions or inculpatory statements obtained by law enforcement by coercion in violation of the “free & voluntary rule” will be suppressed to:– Protect against convictions using unreliable

evidence– Preserve the suspects freedom of choice– Deter PO from intolerable interrogation tactics

Two Part “Voluntary Test”

• Part One = Source of Pressure (Has the government exerted pressure sufficient to exclude voluntariness)– Beatings & guns to the head are coercive and

not voluntary• Part Two = What impact did this pressure

have on the suspect

Less Coercive Means

• Necessitate and examination of the totality of the circumstances– Pressure exerted by the police– Suspects degree of susceptibility– Conditions in which the interrogation took

place

The Ultimate Coercive Interrogation

Pressure exerted by the police• Torture, beatings, and the gun to the head are inherently coercive and are not

allowedCoercion Can Also Include

– Threats– False Promises– Trickery– Deceit– Psychological Coercion– Angry Lynch Mob– Arresting Innocent Members of the Suspects Family– Taking Children Away– Promising Confession Will Prevent Prosecution– Promising Leniency when PO is unable to affect outcome

• PO is allowed to make truthful representations about suspects legal predicament• PO can tell suspect his cooperation will be mentioned to the prosecutor • PO can tell suspect he will encourage the prosecutor to be lenient

CONFESSIONS MUST BE PROVEN VOLUNTARY BY A PREPONDERANCE OF THE EVIDENCE

Suspects Degree of Susceptibility

Conditions Under Which the Interrogation Took Place

4th Amendment Exclusionary Rule

• If Search is Unconstitutional• If Arrest is Unconstitutional• If Investigative Stop is Unconstitutional

Then confession is excluded and any evidence which is “fruit of the poisonous tree” will be excluded

Compulsory Self IncriminationNo person … shall be compelled in any criminal

case to be a witness against himself• Testimonial evidence is controlled by the 5th

AmendmentThe right of the people to be secure in their

persons … against unreasonable searches … shall not be violated

• Physical Evidence is controlled by the 4th Amendment and is frequently admissible against the interests of an arrestee/defendant

4th Amendment Protection Against Unreasonable Searches

Self IncriminationThree areas which could impact a court’s finding that

evidence seized from an arrestees person or physical appearance was obtained in an unreasonable manner

• Bodily movement– An arrest must be constitutional

• Bodily privacy– Thing to be seized in search must be publicly viewable, cannot

view naked body for evidence • Body Integrity – Blood

– What was the reason for initial seizure or any additional seizures

Testimonial Self Incrimination

• Perjury v. Contempt• Also applicable outside of a court room in

police interrogations– Right to remain silent– Privilege against answering self incriminating

questions– Individuals have the right ANYWHERE not to

answer questions that would tend to incriminate

Grand Jury

• You are compelled to appear under penalty of contempt

• Any question which might have a tendency to incriminate you do not have to answer

Testimonial Self Incrimination

• Does not extend to that which was made voluntarily before criminal activity became apparent– Journals– Writing– Records

• Subpoena Deuces Tecum– Used to compel the production of certain items– Challengeable because production could eventually

lead to evidence of crime.

Compelling Testimonial Evidence

• Must create a risk of being convicted of a crime.

• Already tried for the crime convicted or acquitted

• Absolute or Transactional Immunity• “Use” immunity• Binding on State and Federal prosecutions

Invoking 5th Amendment Right

• Defendant's decision not to testify is final and cannot be used against him/her

• Taking the witness stand revokes the privilege

• Jury cannot be told defendant invoked the privilege

• 5th Amendment Privilege does not extend to other types of proceedings

Appearance and Body Evidence• Exposed to public scrutiny

– Handwriting – Photos– Fingerprints– Voice Samples– Field Sobriety Tests

• Evidence not seized in a reasonable manner– Naked body– Blood samples– Surgically removed bullet– DNA samples

Compulsory Production of Appearance Evidence

• During Terry Stop– Transport a short distance for show-up– Never to police station– Fingerprints and/or photo’s OK– Illegal arrest taints appearance evidence

Intrusive Body SearchesWhat is reasonableness for 4th Amendment

Searches below a suspects skin surface

• Government need for evidence exceeds the intrusive nature into suspects privacy or bodily integrity

• Clear indication desired evidence will be found• Search warrant or exigent circumstances• Procedure to retrieve Evidence is reasonable

and the procedure is performed in a reasonable manner

SW Requirement

• Penetrating the body’s surface• Saliva, urine, semen or pubic hair samples• Other bodily tissue or fluids• Manually inspecting rectal or genital cavities• Anything which would cause sever pain or

discomfort• Rick to health• Intensive humiliation

Exigent Circumstances• Blood, breath or urine samples in DUI cases• Gunshot residue test• Reaching into mouth (“mouth is not a sacred

orifice”)

• Stomach pumping is OK if less intrusive means are not available

• Strip Searches and body cavity searches must be based on the reasonable suspicion that search will produce drugs, weapons, or contraband (In Illinois controlled by Statute)