CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE,
FOURTEENTH EDITION
BY JACQUELINE R. KANOVITZ
INSTRUCTOR’S GUIDE
Note: Cases that appear in Part II of the textbook are noted in boldface.
Chapter 6
Interrogations and Confessions
Objectives
Confessions provide powerful evidence of guilt. However, they are not usable for this purpose if they are
the product of a police violation of the suspect’s constitutional rights. This chapter discusses the
interrogation requirements that stem from the Fourth, Fifth, Sixth, and Fourteenth Amendments. The main
objective of this chapter is to instill an appreciation of what police must do or refrain from doing in order
to procure an admissible confession. The student should emerge from this chapter with a thorough
understanding of:
1. The kinds of interrogation practices that can lead to suppression of a confession under the free and
voluntary requirement.
Discussion Outline
[PowerPoint Slides 1 and 2 contain book and chapter title information.]
PowerPoint Slide 3. Legal Hurdles for Confessions
In order to be admissible, confessions must satisfy:
• The Sixth Amendment right to counsel
Figure 6.2 in the text shows the period during each requirement is in effect
§ 6.1 Introduction
A. Grounds for excluding confessions. A confession is not admissible as evidence of guilt if it is the
product of a police violation of any of the following requirements:
1. Due process free and voluntary requirement;
2. Fourth Amendment restrictions on investigatory stops, arrests, and searches;
B. Periods during which each of these requirements is in effect.
PowerPoint Slide 4. The Free and Voluntary Rule
• Derives from the Fifth & Fourteenth Amendment due process
clauses
• Serves three purposes
1. Keeps out unreliable evidence
2. Protects freedom of choice
3. Discourages unacceptable practices
§ 6.2 The Free and Voluntary Rule
PowerPoint Slide 5. Determining Voluntariness
• Confessions are inadmissible under the due process clause when
A. Coercive interrogation government practices
For a confession to be considered involuntary in a due process sense, the coercive pressures that
1. Physical force or threats of force.
B. Impact of interrogation methods on the suspect
If the interrogation methods used by the police are determined to have been improper, the court must
then decide whether the suspect’s free will was overcome.
1. Physical force or threats of force render a confession involuntary as a matter of law. No further
inquiry will be made.
2. When the pressures are less extreme, two additional factors will be considered.
a. The suspect’s susceptibility to the pressures (i.e., his or her background, intelligence,
▪ Arizona v. Fulminante (Part II). Fulminante was serving time in prison for an unrelated
crime when word spread that he had murdered his stepdaughter. Fulminante’s life was
threatened by other inmates. Sarivola, a government informant, capitalized on Fulminate’s
C. Procedures for determining the voluntariness of a confession. When a defendant challenges the
voluntariness of a confession, the judge must hold a hearing outside the jury’s presence and take
testimony about the circumstances under which the confession was given. To secure admission of the
confession, the prosecution has the burden of proof and must establish by a preponderance of the
evidence (i.e., that it is more probable than not) that the defendant confessed of his or her own free
will.
D. Deceiving suspects about the strength of the evidence against them, such as telling them that their
fingerprints were found at the crime scene, their alibi was not confirmed, they failed a lie detector test,
etc., is a common interrogation strategy and does not render confessions involuntary because lies like
these are unlikely to induce an innocent person to confess.
1974) (misrepresentation that daughter who had accused father of incest had passed a lie detector test).
Assistant District Attorney Laurie Magid recently wrote an interesting article on the importance of
deception in police interrogation practices. Laurie Magid, Deceptive Police Interrogation Practices:
How Far Is Too Far? 99 MICH. L. REV. 1168 (2003). Magid states: “Virtually all interrogations—or
at least virtually all successful interrogations—involve some deception. As the United States Supreme
Court has placed few limits on the use of deception, the variety of deceptive techniques is limited
chiefly by the ingenuity of the interrogator. Interrogators still rely on the classic ‘Mutt and Jeff,’ or
‘good cop, bad cop,’ routine. Interrogators tell suspects that non-existent eyewitnesses have identified
them, or that still at-large accomplices have given statements against them. Interrogators have been
known to put an unsophisticated suspect’s hand on a fancy, new photocopy machine and tell him that
the ‘Truth Machine’ will know if he is lying. Occasionally, an interrogator will create a piece of
PowerPoint Slide 6. Fourth Amendment Exclusionary Rule
• Requires suppression of confessions that are causally connected
to a violation of the Fourth Amendment
• Existence of causal connection depends on:
1) length of time between the violation and the confession
§ 6.3 Fourth Amendment Exclusionary Rule
The Fourth Amendment exclusionary rule requires courts to suppress confessions that are causally
connected to a violation of the suspect’s Fourth Amendment rights, such as an illegal Terry stop, arrest, or
search).
A. Courts consider the following three factors in deciding whether a causal connection exists:
1. Length of time between the Fourth Amendment violation and the confession
2. The existence of intervening circumstances capable of restoring the suspect’s equilibrium (such
3. Purpose and flagrancy of the violation
▪ Kaupp v. Texas (Part II). Police detectives, acting without probable cause or a warrant, went
to Kaupp’s home at 3:00 A.M., got him out of bed, handcuffed him, and took him to police
station, shoeless and clad in boxer shorts, to question him about him about a 14-year-old girl’s
murder. Once there, they administered Miranda warnings and told him that the dead girl’s
brother had confessed and implicated him. Within 10 or 15 minutes, he too confessed. Held:
B. Derivative evidence
When a confession is tainted by a Fourth Amendment violation, the taint carries over and destroys the
admissibility of derivative evidence.
§ 6.4 Overview of the Rules Governing Custodial Interrogation
Two additional requirements go into effect once a suspect is placed under arrest or taken into custody: (1)
prompt arraignment statutes, and (2) the Miranda rule.
PowerPoint Slide 7. McNabb-Mallory Rule
The McNabb-Mallory or “delay in arraignment rule” requires
§ 6.5 The McNabb-Mallory Delay in Arraignment Rule
Statement of the McNabb-Mallory rule. The McNabb-Mallory rule requires exclusion from federal criminal
prosecution of confessions obtained during a period of “unnecessary delay” in taking the arrestee before a
magistrate, even if the confession is voluntary.
A. Basis for the rule
The McNabb-Mallory rule was based on the Supreme Court’s supervisory power over lower federal
B. Current status of the McNabb-Mallory rule in federal courts.
Title 18 U.S.C. § 3501 (Part II) modified the McNabb-Mallory rule by creating a six-hour safe harbor
period, but otherwise left the rule intact. Confessions obtained during the first six hours after an arrest
C. Status of the McNabb-Mallory rule in state courts.
Because the Supreme Court promulgated the McNabb-Mallory rule under its supervisory authority
over the federal courts, and not as a rule of constitutional law, the rule is not binding on state courts.
Most states treat unnecessary delay in arraignment as a factor in evaluating whether the arrestee’s
confession was voluntary, but not as independent grounds for suppressing confessions that are found
to be voluntary.
PowerPoint Slide 8. Overview of the Miranda Rule
• Applies during custodial interrogations
• Purpose is to reinforce protection for Fifth Amendment privilege
against the self-incrimination
• Requires police to:
1) Warn suspects of their rights
§ 6.6 Protection for the Fifth Amendment Privilege against Self-Incrimination during Police
Interrogations: The Miranda Rule
A. Statement of the Miranda rule
The Miranda rule applies during custodial interrogations. Police are required to
1. administer adequate warnings,
B. Policy underlying the Miranda rule
The Supreme Court had three purposes in mind for establishing Miranda safeguards: (1) to aid suspects
▪ Miranda v. Arizona (Part II). The Miranda case is long, tedious, and adequately covered in the
text. The best classroom use of the case is to discuss the concerns that prompted the Supreme Court
to require Miranda procedural safeguards during police custodial interrogations.
PowerPoint Slide 9. Custodial Interrogation (Part I)
Custodial interrogation has two components: (1) custody and (2)
interrogation.
§ 6.7 Custodial Interrogation Defined
A. When the rule applies
Miranda safeguards are necessary only during custodial interrogations. A custodial interrogation has
two essential ingredients: custody and interrogation.
B. Custody defined
Custody exists when the interrogation environment has the coercive atmosphere of an arrest.
2. Factors that contribute to an arrest-like atmosphere include: (1) prolonged questioning, (2) isolated
surroundings, (3) the threatening presence of several police officers, (4) the display of weapons,
(5) physical touching, (6) a hostile or accusatory attitude, (7) intimidating language or tone of
voice, (8) handcuffs or other physical restraints, and (9) confronting the suspect with evidence of
guilt.
a. Warnings are not necessary during police undercover operations because the suspect has to
be aware that the interrogator is a police officer for the interview to have the coercive
atmosphere of an arrest. See Illinois v. Perkins (holding that police undercover agents posing
as inmates are not required to administer Miranda warnings before conducting a secret
interrogation).
b. Suspects are not in custody during routine traffic stops and many investigative stops because
the objective circumstances surrounding these encounters rarely resemble an arrest.
▪ Berkemer v. McCarty (Part II). Trooper Williams pulled the defendant’s car over after
observing him weaving in and out of traffic and asked him whether he had been drinking.
c. Prisoners are not in custody for Miranda purposes when they are questioned in private about
events outside prison unless the manner in which the interview is conducted “presents the
same inherently coercive pressures as the type of station house questioning at issue in
Miranda.” The prison location of the interview is not sufficient, in and of itself, to place a
prisoner in custody for Miranda purposes.
▪ Howes v. Fields (Part II). Fields, a prisoner, was charged with sexual conduct with a
minor based on events that occurred before his incarceration. Two armed sheriff’s deputies
escorted Fields from his cell to a conference room where they questioned him about an
PowerPoint Slide 10. Custodial Interrogation (Part II)
• An interrogation occurs when the police:
C. Interrogation defined
An interrogation occurs when the police ask investigative questions or engage in any words or actions
(other than those normally attendant to arrest and custody) that they should know are reasonably likely
to elicit an incriminating response from the suspect.
1. Express questioning
a. Statements volunteered without an interrogation are admissible despite lack of Miranda
warnings.
c. Now is a good opportunity to inform students that Miranda warnings are not necessary before
compelling suspects to participate in procedures like fingerprinting, photographing, lineups,
Breathalyzer tests, blood-alcohol tests, field sobriety tests, etc., even though the results could
be incriminating, because they do not involve an interrogation. Their purpose is to obtain
physical evidence, not statements. More will be said about these procedures in Chapter 7.
d. Hypothetical. Officer Johnson, while shopping at the Big-X Supermarket, saw Sticky-
Fingered Sam pick up two cigarette packs, put them in his pocket, and walk through the
2. Functional equivalent of express questioning
a. Words or actions on the part of the police that they should know are reasonably likely to elicit
an incriminating response from the suspect are considered the “functional equivalent” of
express questioning and also trigger the need for Miranda safeguards. The “functional
equivalent” prong is aimed at psychological ploys used to overcome a suspect’s silence, such
as telling him that he was implicated by a confederate, identified by an eyewitness, etc.
▪ Rhode Island v. Innis (Part II). Innis was arrested for murder, advised of his Miranda
rights, and said that he wished to speak with an attorney. While two officers were
transporting Innis to the police station, they engaged in a conversation between themselves
concerning the missing shotgun, during which one officer stated to the other that there
were “a lot of handicapped children running around” in the location where the missing
gun was believed to be and “God forbid one of them might find a weapon with shells and
they might hurt themselves.” At this point, Innis interrupted the conversation, and told the
D. Public safety exception
The police may delay administration of Miranda warnings before interrogating a suspect who is in
custody when they are confronted with an emergency that requires immediate action to protect the
public safety or their own safety.
▪ United States v. Mikolon (Part II). Public safety did not apply where police asked defendant
E. Non-police interrogators
Private detectives and security officers do not have to play by the rules laid down in Miranda because
the Constitution constrains only the actions of the government.
PowerPoint Slide 11. Procedural Requirements: Warnings and Waivers
• Before initiating a custodial interrogation, police must warn the
suspect:
✓ You have the right to remain silent.
§ 6.8 Procedural Requirements for Custodial Interrogations:
Miranda Warnings and Waivers
A. Warnings
1. Before initiating a custodial interrogation, police must issue the four-pronged warning.
2. Police do not have to use the exact language used by the Supreme Court, but the warnings given
must be sufficient to apprise the suspect of all four rights.
B. Waiver
1. To secure admission of a confession made during a custodial interrogation, the prosecution must
establish that the accused made a voluntary and knowing waiver of Miranda rights. Waivers do not
▪ Berghuis v. Thompkins (Part II). Thompkins, a murder suspect, was arrested and given a full
set of Miranda warnings. He declined to sign a form acknowledging he had been warned, and
PowerPoint Slide 12. Procedural Requirements: Cessation and Resumption of Questioning
• If the suspect makes an unambiguous request for counsel or to
end the interview, questioning must cease immediately.
C. Cessation of questioning
A clear and unambiguous request is necessary to invoke the right to counsel or to remain silent. Police
are free to ignore ambiguous or equivocal requests and are not required to ask clarifying questions.
▪ Davis v. United States (Part II). About one and one-half hours after Davis waived his Miranda
rights and the interrogation began, Davis stated, “Maybe I should talk to a lawyer.” When the
agents inquired whether he wanted a lawyer, he responded that he did not. The interview continued
▪ Berghuis v. Thompkins (Part II). The Supreme Court extended the clear request rule to the right
to remain silent. Thompkins refused to sign a form acknowledging that he had received Miranda
warnings and remained virtually mute for nearly three hours. The Court ruled that neither action
was effective to invoke the right to remain silent because the meaning of these behaviors was
unclear. Thompkins failure to respond could have meant that he was unwilling to answer the
D. Resumption of questioning after a suspect has clearly indicated the desire to remain silent or to speak
with an attorney
1. After a suspect properly invokes the right to counsel, questioning may resume in only if: (1)
counsel is made available, (2) the suspect reopens the dialogue or initiates a subsequent encounter,
or (3) the suspect experiences a significant break in custody, lasting at least 14 days.
a. To reopen the dialogue, the suspect must initiate further communications with the police in a
set of warnings and explore whether suspect wants to reopen dialogue.
b. The third protection-ending event is new. It stems from Maryland v. Shatzer (Part II). A
police detective tried to question Shatzer about allegations that he had sexually abused his son
while he was serving a prison sentence for an unrelated child sexual abuse offense. The
2. After a suspect makes a clear and unambiguous assertion of the right to remain silent, police may
not thereafter question the suspect about the same offense unless the suspect initiates further
communication with the police or there is a 14-day break in custody. However, the police may
initiate questioning about an unrelated offense, after waiting a reasonable period of time.
PowerPoint Slide 13. Sixth Amendment Right to Counsel
The Sixth Amendment right to counsel:
• attaches when adversary judicial proceedings are initiated
§ 6.9 Sixth Amendment Right to Counsel during Interrogations Conducted after Formal
Charges are Filed
A. Attachment of the Sixth Amendment right to counsel
The Sixth Amendment right to the assistance of counsel attaches when adversary judicial proceedings
are formally initiated by way of a preliminary hearing, indictment, information, or arraignment. An
B. Deliberate elicitation standard
The standard used to determine violations of the Sixth Amendment right to counsel is deliberate
C. Secret interrogations using police undercover agents, paid informants, and jailhouse snitches
Undercover interrogations conducted after formal charges are lodged violate the Sixth Amendment
right to counsel.
▪ Kuhlmann v. Wilson (Part II). Subsequent to the defendant’s arraignment on murder charges,
police planted an informant, Benny Lee, in the same cell with the defendant, with instructions not
D. Procedural requirements for conducting post-attachment interrogations
The procedural requirements for conducting pre– and post-attachment interrogations are identical.
Before engaging the defendant in a discussion of charges pending against him, police must administer
E. Offense-specific nature of the Sixth Amendment right to counsel
The Sixth Amendment right to counsel is offense-specific, meaning that it applies only when police
question a defendant under formal charges about that offense. It does not apply when their questions
relate to uncharged criminal activity, even when the crime under investigation is closely related to the
one that is the subject of the charges.
PowerPoint Slide 14. Comparison of the Miranda and Sixth Amendment Right to Counsel
• Miranda right to counsel
o Applies before formal charges are lodged
o Available only during custodial interrogations
PowerPoint Slide 15. Impeachment
An inadmissible confession may be used for impeachment if:
• The defendant takes the stand and testifies on his/her own behalf
§ 6.10 Use of Inadmissible Confessions for Impeachment
A. An inadmissible confession can be used for impeachment if:
1. The defendant decides to take the witness stand and testify at his or her trial.
B. When a confession is admitted for impeachment purposes, the jurors may consider it only for the sake
of evaluating the veracity of the defendant’s inconsistent trial testimony. They may not consider the
confession as evidence that the defendant is guilty of the crime confessed.
PowerPoint Slide 16. Derivative Evidence
• The fruits of statements obtained in violation of the following is
inadmissible:
§ 6.11 Restrictions on the Use of Derivative Evidence
A. Confessions often lead to the discovery of other evidence. Evidence derived through a confession, such
as physical evidence, witness leads, and later confessions, is called “derivative evidence.”
B. Evidence that derives from confessions obtained in violation of the due process free and voluntary
C. Physical evidence, witness leads, and subsequent confession that derive from a confession obtained
without Miranda warnings, in contrast, are admissible unless the confession was involuntary or the
violation of the Miranda rule was deliberate.
▪ Missouri v. Seibert (Part II). This case involved a deliberate violation of the Miranda rule. Seibert
was arrested for instigating a fire that killed a mentally ill teenager staying in her home. She was
PowerPoint Slide 17. Confessions Given by an Accomplice
The Sixth Amendment right to confront adverse witnesses bars the
§ 6.12 Restrictions on the Use of Confessions Given by Accomplices
A. Defendants may not object to admission of an accomplice’s confession as evidence against them on
the grounds that it was unconstitutionally obtained. Only the person whose constitutional rights were
violated may raise this objection.
B. However, the confession of one accomplice cannot be used as evidence against another unless the
PowerPoint Slide 18. Corpus Delicti Rule
• Requires independent evidence that the crime was committed
before a confession can be introduced into evidence.
§ 6.13 The Requirement of Corroboration of Valid Confessions
A. Many states impose a statutory restriction on the admission of confessions called the corpus delicti or
Student Review Questions (Answers are provided at the end for questions that have asterisks beside them.)
1. Confessions may be excluded from criminal trials if they are obtained in violation of any one of five
different requirements. List and briefly summarize them. (§6.1)
2. Which of the five requirements discussed in this chapter are in effect during Phase 1 (investigative
questioning of suspects who are not in custody)? (Figure 6.1)
5. Confessions that result from (1) improper government conduct that (2) overcomes the suspect’s free
will are considered involuntary. (This is another way of stating the test in Figure 6.3.)
a. What is the constitutional basis for excluding involuntary confession?
b. What three purposes does exclusion of involuntary confessions serve?
6. Which party has the burden of proof on the question of voluntariness—the prosecution or the accused?
What must that party prove? (§6.2)
7. The Fourth Amendment exclusionary rule requires suppression of confessions that are “causally
connected” to a violation of a suspect’s Fourth Amendment rights (i.e., an illegal stop, arrest, or search).
What three factors do courts consider in determining whether a confession was “causally connected”
to an earlier violation? (§6.3)
8. Once a suspect has been placed under formal arrest or taken into custody, two new requirements go
into effect. What are they? (§6.4)
9. State the McNabb-Mallory rule. (§6.5)
a. What is the legal basis for this rule—the Fifth Amendment or something else?
10. What is the constitutional basis for the Miranda rule? (§6.6)
11. What two things are necessary for the Miranda rule to apply? (§§6.6, 6.7)
12. When is a suspect who has not been placed under formal arrest regarded as being in “custody” for
Miranda purposes? Is the test of custody subjective or objective? What factors do courts considered in
deciding whether a suspect is in Miranda custody? (§6.7)
13. Are warnings required when a suspect is questioned by a police undercover agent? Explain why or
why not. (§6.7)
16. How is “interrogation” defined for Miranda purposes? What is the test for whether words or actions,
not involving an express question, are the “functional equivalent”? Give several examples of police
words or actions that constitute the functional equivalent of an express question. (§6.7)
19. Who besides police officers are required to give Miranda warnings? (§6.7)
20. Recite the four warnings required by the Miranda rule. (§6.8)
21. What must police do obtain to a valid waiver of Miranda rights? (§6.8)
a. Must the waiver be in writing?
22. What does a suspect have to do to invoke his or her Miranda rights? (§6.8)
23. Under what three circumstances may police resume questioning after a suspect has invoked his or her
right to counsel? (§6.8)
24. Under what two circumstances may police question a suspect about the same offense after the suspect
has invoked the right to remain silent? Under what circumstances may police question a suspect who
has invoked the right to remain silent about a different offense? (§6.8)
25. When does the Sixth Amendment right to counsel attach? What four procedural events generally
signify the initiation of criminal proceedings? (§6.9)
26. What standard do courts use to determine when a defendant under formal charges is entitled to the
presence of counsel? How does this standard differ from the Fifth Amendment custodial interrogation
standard? (§6.9)
30. What is the difference between using a confession as evidence of guilt and using it for impeachment?
What three things are necessary to use an inadmissible confession for this impeachment? (§6.10)
31. What is derivative evidence? Give several examples. (§6.11)
32. Is derivative evidence admissible when it derives from a confession obtained in violation of the: (1)
due process free and voluntary requirement? (2) Fourth Amendment search and seizure clause? (3)
Miranda rule? (4) Sixth Amendment right to counsel? (§6.11)