CHAPTER EIGHT
SELF-INCRIMINATION
Learning Objectives
After studying this chapter, students should be able to:
1. Understand the role, nature, and importance of confessions and incriminating statements.
2. Know the constitutional amendments that impact criminal confessions and the three
3. Understand the “bright line” rule established in Miranda v. Arizona and appreciate its
5. Know the factors considered when determining if a suspect confessed or made
incriminating statements voluntarily.
6. Understand the evidence-based decision-making ideal as it applies to false confessions
and custodial interrogation. Appreciate the severe losses innocent people experience
when they confess to crimes they didn’t commit.
Chapter Outline
I. The Nature and Role of Confessions
Learning Objective 1: Understand the role, nature, and importance of confessions and
incriminating statements.
A. Confessions play an ambivalent role in society and law, an ambivalence that’s ancient.
2. They are also powerful evidence of guilt and remorse.
B. Defendants confess their guilt or make incriminating statements in four different
settings:
1. They confess to friends and associates, who report these statements to officials.
3. They confess during sentencing when making incriminating statements to show their
remorse.
4. They confess during police interrogations following their arrest.
C. The Self-Incrimination Setting
2. As soon as police officers have shifted their search from a general investigation to
building a case against an individual—the accusatory stage of the criminal process—
3. Defining the proper constitutional balance between law enforcement needs and
suspects’ privacy has created much controversy.
D. The Importance of Confessions and Interrogation
Media Tool
“I Killed a Man”
http://www.youtube.com/watch?v=IC3oluFrZc0
o YouTube video of a man confessing to vehicular manslaughter.
o Discussion: Do you think Cordle made this video to get a lighter sentence?
This is clearly a rare event; do you think it is appropriate?
1. Fred Inbau—professor of law—cited three reasons why he supported interrogations:
a. Police can’t solve many crimes unless guilty people confess or suspects give
information that can convict someone else.
b. Criminals don’t confess unless the police either catch them in the act or
interrogate them in private.
See Assignment 1
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c. Police have to use “less refined methods” when they interrogate suspects than are
“appropriate for the transaction of ordinary, every-day affairs by and between
law-abiding citizens.”
What If Scenario
What if confessions were not allowed in court? How many people do you think are
found guilty based, at least in part, on a confession?
II. The Constitution and Self-Incrimination
Learning Objective 2: Know the constitutional amendments that impact criminal
confessions and the three different approaches to custodial interrogation. Know which stages
of the criminal process are relevant to each.
Media Tool
“You Don’t Have the Right to Remain Silent”
http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/salinas_v_te
xas_right_to_remain_silent_supreme_court_right_to_remain_silent.html
o Slate.com article about the case of Salinas v. Texas.
o Discussion: Do you agree with the author of the article? What argument
might someone who disagreed with this author make in the rulings defense?
Class Discussion/Activity
Divide the class up into three groups and assign them each one of the due process,
right–to–counsel, and self-incrimination approaches to criminal confession. Have the
groups research each of these approaches and discuss what they discovered.
A. The right to remain silent (against self–incrimination) is ancient and controversial.
1. Jesus invoked it.
2. Talmudic law commanded it.
B. The U.S. Supreme Court has relied on three provisions in the U.S. Constitution to
1. The Fourteenth Amendment due process clause
3. The Fifth Amendment self–incrimination clause
C. The Due Process Approach
1. The basic idea behind the due process approach is that all confessions must be
voluntary or they’re not reliable.
2. The reliability rationale for due process is that admitting unreliable evidence to
3. According to the accusatory system rationale, forced confessions violate due
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4. Because involuntary confessions are unreliable and contrary to the accusatory
5. Most early cases that the U.S. Supreme Court threw out involving false
confessions dealt with White mobs who had rounded up poor, illiterate Blacks and
tortured them until they confessed.
D. The Right–to-Counsel Approach
1. In Escobedo v. Illinois, the U.S. Supreme Court held that as soon as a police
2. The Court soon shifted to the Fifth Amendment self-incrimination approach in
Miranda v. Arizona.
E. The Self-Incrimination Approach
2. For defendants to claim their Fifth Amendment rights were violated, they have to
3. The meaning of “witness against himself”
4. The meaning of “compelled”
a. Whether testimony was “compelled” is measured by the totality of circumstances
surrounding the statements.
b. According to due process, confessions must be voluntary and knowing.
III. Miranda v. Arizona
Learning Objective 3: Understand the “bright line” rule established in Miranda v. Arizona and
appreciate its importance to custodial interrogation. Know the wide variety of police behavior
that can be considered custodial interrogation and the circumstances in which unwarned
statements are admissible in trial.
Media Tool
“Miranda v. Arizona”
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0384_0436_ZO.html
o Legal Information Institute full opinion of Miranda v. Arizona.
o Discussion: What information did students find in the full case that was not
included in the text? Is there any information they think is important? Given
that the case was very close (5-4) what did the dissent have to say? After
reading the dissents, would you side with the majority or the dissenters?
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Class Discussion/Activity
What impact has Miranda had on confessions? What does the phrase “‘bright line’
established in Miranda v. Arizona and its impact on custodial interrogation” mean?
What If Scenario
What if the decision had been different in Dickerson? How might our courts be
interpreting cases involving waivers of rights prior to interrogation? Don’t most
people know about their rights today anyway?
A. The U.S. Supreme Court established a “bright line” rule to govern custodial interrogation.
B. Custodial interrogation is “inherently coercive” because:
1. Suspects are held in strange surroundings where they’re not free to leave.
2. Skilled police officers use unrefined methods to “crack” the will of suspects.
C. The Miranda “Bright–Line” Rules
2. Whenever police officers conduct a custodial interrogation, they have to give suspects
the four warnings:
3. The Court also established five “bright line” rules for the interrogating officer, which
officers don’t need to tell suspects.
a. Suspects can claim their right to remain silent at any time. If at any time they indicate in
4. Miranda v. Arizona doesn’t command officers to warn suspects whenever they arrest
them. They are required to only if they take suspects into custody and interrogate them.
Class Discussion/Activity
Discuss with students the circumstances that have been established by the Supreme
Court as showing custody. Discuss those that do not show custody. Have students
identify differences and similarities between the two categories of circumstances.
Ask them what they think is the underlying factor(s) for each category that places
the circumstances in it.
See Assignment 2
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What If Scenario
What if law enforcement officers had to notify citizens of their rights anytime that
they wanted to talk to them? How burdensome would this be? How difficult would
it make for law enforcement officers to catch offenders?
D. The Meaning of “Custody”
1. The U.S. Supreme Court defined custody as being held by the police in a police
station or depriving an individual of “freedom of action in any significant way.”
3. Circumstances that show custody:
a. Whether officers had probable cause to arrest
b. Whether officers intended to detain suspects
4. Circumstances that don’t show custody:
5. The public safety exception
(1) Incriminating statements, and any evidence derived from the unwarned
(1) Empirical evidence indicates that, in the most likely public safety exception
(2) Police typically ask three questions related to public safety when they
apprehend the suspect:
(a) Where’s the gun?
(b) Is the gun loaded?
(c) Are you carrying any other weapons?
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E. The Meaning of “Interrogation”
Class Discussion/Activity
Discuss with students what qualifies as interrogation. How does the meaning of
interrogation differ depending on what kind of law enforcement agency is
interrogating a suspect? Is interrogation different for local, state, and federal law
enforcement agencies?
1. The Fifth Amendment “functional equivalent of a question” test
2. The Sixth Amendment “deliberately eliciting a response” test
(2) Why has the Supreme Court interpreted interrogation broadly once the right to
counsel kicks in?
(a) Once formal proceedings begin, all the power of the government is aimed
at convicting criminal defendants.
(b) Technical knowledge of the law and its procedures is critical at this stage.
Class Discussion/Activity
Discuss the public safety exception with students. What other situations do students
think might qualify for a public safety exception? Have students look up information
about the bombing at the Boston Marathon in 2013. Would this qualify as a public
safety exception? Discuss the circumstances of the situation and how the police
might argue for a public safety exception in this case.
IV. The Waiver of the Right to Remain Silent
Learning Objective 4: Know the factors considered when determining if a waiver of the right to
remain silent is valid.
A. Following Miranda there was a great deal of concern that police would have a difficult
time doing their job.
B. Empirical research indicates this is not so. The following is supported by such research.
1. Police almost always give the required Miranda warnings
3. Police usually stop interrogating suspects who invoke their rights.
See Assignment 4
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5. Police rarely use “overtly coercive tactics” to get confession after waivers. (Thomas
2004, 1963)
6. Caution should be exercised with this research as there may be an observational effect.
C. Because so many suspects waive their rights and talk to interrogators with no lawyer in
sight, two questions are of great constitutional concern:
1. What is a valid waiver of the right against self-incrimination?
2. What is a voluntary confession?
D. There are two waiver tests:
1. Express waiver test – The suspect makes it clear that he knows his rights, knows he’s
giving them up, and knows the consequences.
3. The Supreme Court has adopted the implied waiver test.
E. Circumstances relevant to showing a voluntary and knowing waiver include:
2. Physical condition
4. Mental condition
6. Ability to understand English
7. Familiarity with the criminal justice system
F. In Berghuis v. Thompkins, the U.S. Supreme Court held that criminal suspects who want
to protect their right to remain silent have to speak up and unambiguously invoke and
waive it.
V. Voluntary Self-Incrimination
Learning Objective 5: Know the factors considered when determining if a suspect confessed or
made incriminating statements voluntarily.
What If Scenario
What if there was no requirement that confessions must be voluntary? What
consequences would the loss of this requirement have for our society as a whole, not
just the criminal justice system?
A. Most suspects talk when interrogated because knowledge is a two-way street.
1. Police want to find out what suspects know about crimes and suspects want to know
how much police officers know.
B. Confessions are involuntary only if the totality of circumstances proves two things:
2. The coercive conduct caused the suspect to make incriminating statements.
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1. The location of the questioning
3. Whether Miranda warnings were given
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5. The length of questioning
7. Whether the police used threats, promises, lies, or tricks
9. The suspects characteristics
D. Courts have ruled that none of the following actions caused suspects to confess:
1. Promises of leniency
3. Confronting the accused with other evidence of guilt
5. False and misleading statements made by the interrogator
VI. False Confessions: Popular Belief and Empirical Evidence
Learning Objective 6: Understand the evidence-based decision-making ideal as it applies to
false confessions and custodial interrogation. Appreciate the severe losses innocent people
experience when they confess to crimes they didn’t commit
Media Tool
“Dominance and Submission: How the Police Use Psychological Manipulation to
Interrogate Citizens” http://web.mit.edu/dryfoo/www/Info/confess.html
o Article discussing the techniques law enforcement use in interrogation.
o Discussion: Do you think you would confess if interrogated? Does the article
help explain why some people confess to crimes they did not commit?
A. False confessions have been determined in research of 125 proven cases of individuals in
the following ways:
1. The crime never happened
3. The actual criminal is proven to have committed the crime
5. Researchers also learned the following:
a. Eighty-one percent of proven innocent defendants who went to trial were
convicted, even though their confessions were later proved false.
b. More than eighty percent of interrogations lasted more than 6 hours, half lasted
more than 12 hours and the average length was 16.3 hours. Much higher than
researchers earlier average of less than two hours.
c. Virtually all confessions result in some deprivation of the false confessor’s liberty.
d. The most vulnerable populations are overrepresented in the sample including
juveniles, mentally retarded, and mentally ill.
e. False confessions may be a more serious problem than previously imagined.
B. Why do innocent people confess to crimes they didn’t commit?
See Assignment 3
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1. Voluntary false confessions; notoriety, need for self-punishment, inability to separate
reality from fantasy, desire to help and protect the real criminal.
3. Internalized false confessions: innocent, vulnerable suspects subjected to “highly
suggestive interrogation tactics” come to believe they actually committed the crime.
C. The impact of false confessions
1. Fundamental attribution error
2. False confessions also tend to overwhelm other information such as alibis or other
evidence of innocence.
3. Research indicates that neither students nor law enforcement officers were able to
pick a false confession out from a true one.
D. Reforms aimed at reducing the false confession problem
2. Restrict police use of false information during interrogations
3. Record interrogations and confessions
a. Arguments in favor of recording
(1) Creates an objective, viewable record.
(3) Provides judges and juries with a more accurate picture of what was said.
(5) Preserves judicial resources by discouraging defendants from raising
“frivolous” pretrial challenges to confessions. (State v. Cook 2004, 556-57)
b. Drawback to videotaping
(1) Cost
(3) Suspects may be reluctant to speak candidly in front of cameras (557-58)
Lecture Notes
Confessions acknowledge guilt, and as such they are uniquely powerful evidence. Incriminating
statements fall short of full confessions. Confessions are made to friends and family, in guilty pleas
(the most common), during sentencing in the form of apologies, and during interrogation.
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Fifth and Fourteenth Amendments apply to all stages of the criminal process, the Sixth
Amendment after formal charges are brought, and the Fifth Amendment in custodial
interrogation and thereafter.
Courts have adopted different approaches to police interrogation and confessions based on
the different constitutional provisions. The influence of these three approaches – due process,
enforcement from compelling people to make self-incriminating statements, the Sixth
Amendment ensures the right to counsel and the Fourteenth Amendment guarantees due process.
Compulsion, incrimination, and testimony are all required to prove a violation of Fifth
Amendment rights in a criminal case. The Supreme Court noted in Miranda that custodial
interrogation is inherently coercive. The “bright line” of Miranda v. Arizona defines custodial
stops, probationers meeting with probation officers, and detaining persons while executing a
search warrant.
There are two tests used by the Supreme Court to determine whether police questioning is
interrogation. These are the Fifth Amendment “functional equivalent of a question” test and the
Sixth Amendment “deliberately eliciting a response test.” The Fifth Amendment’s self–
circumstances (age, intelligence, mental condition, education, etc.) that indicate the suspect knew
their rights and wished to waive them. The Supreme Court has ruled that criminal suspects who
want to protect their right to remain silent must speak up and unambiguously invoke it. The
Court has also ruled that coercive police activity is required for a finding that a confession is not
voluntary under the Fourteenth Amendment’s due process clause.
False confessions are not a theoretical risk but a proven fact. There are three types of false
confessions: voluntary, compliant, and internalized. Jurors may overestimate the role of the
defendants’ nature and underestimate the role of the interrogation situation when evaluating false
Key Terms
confessions: Suspect’s written or oral acknowledgment of guilt. (p. 286)
incriminating statements: Statements that fall short of full confessions. (p. 286)
accusatory stage of the criminal justice process: The point at which the criminal process
focuses on a specific suspect. (p. 287)
reliability rationale for due process: Admitting unreliable evidence to prove guilt denies
defendants the right to their lives without due process of law. (p. 290)
accusatory system rationale: The justification for reviewing confession cases based on the idea
that forced confessions violate due process even if they are true because the government has the
custody. (p. 294)
inherently coercive: The Supreme Court has found custodial interrogation is coercive because
suspects are held in unfamiliar surroundings, are not free to leave, and police officers can use
psychological pressure. (p. 294)
Miranda warnings: Four warning mandated by the Supreme Court in the case of Miranda v.
public safety exception (PSE): The rule that Miranda warnings need not be administered if
doing so endangers the public. (p. 305)
express waiver test: A person specifically saying or writing that he/she gives up their rights. (p. 314)
implied waiver test: Examining the totality of circumstances to decide if a person has given up
his/her rights. (p. 314)
fundamental attribution error: When jurors overestimate the role of defendants’ disposition in
evaluating their actions while, at the same time, overestimating the role of the interrogation
situation. (p. 326)
Assignments
1. Have students discuss the difference between police pressure and police coercion in the
interrogation setting. What is the balance law enforcement is trying to achieve with the
attitude that pressure is permissible – short of coercion? Have students identify television
shows and movies that present police pressure tactics and discuss the legality of those tactics.
Should police be permitted to use trickery and deception during the interrogation process?
2. The Supreme Court refused to overturn Miranda in Dickerson v. U. S. (2000). Ask students
what they think the consequences would have been if the Court had held differently and ruled
police no longer are required to inform suspects of their right to remain silent and their right
to an attorney. Would police practices have changed? Would police have an easier time at
fighting crime? Would the likelihood of police abusing the interrogation process have
3. Have students research and write a paper on false confessions. Have them identify some
person(s) who was/were wrongly incarcerated based on a false confession. Encourage them
4. Have students research the public safety exception (PSE). Have half the class focus on
research supporting the PSE and half the class focus on opposing the PSE. Discuss what the
students found in their research in class. This assignment can be done individually or in small
groups depending on the size of the class. Additionally, students can be assigned to debate