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126
Chapter 6
Interrogations and Confessions
Objectives
Confessions provide powerful evidence of guilt. However, they are not usable for this purpose if
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:
2. Practices that can lead to suppression under the Fourth Amendment.
3. When the McNabb-Mallory rule applies and what police must do to comply with the rule.
Discussion Outline
§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.
§6.2 The Free and Voluntary Rule
Confessions are inadmissible under the due process clause when they result from: (1) coercive
induce him or her to make a statement that he or she would not otherwise have made.
A. Coercive pressures exerted by an agent of the government
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1. Physical force or threats of force.
2. False promises that the suspect will avoid prosecution, receive a lighter sentence, or
B. Impact of interrogation methods on the suspect
If the interrogation methods used by the police are determined to have been improper, the
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.
3. Arizona v. Fulminante (Part II). Fulminante was serving time in prison for an unrelated
crime when word spread that he had murdered his stepdaughter. Fu
threatened by other inmates. Sarivola, a government informant, capitalized on
C. Procedures for determining the voluntariness of a confession. When a defendant challenges
the voluntariness of a confession, the judge must hold a
and take testimony about the circumstances under which the confession was given. To secure
D. Hypothetical. There has recently been a series of Jaguar thefts in Whosville. Officer
ed him, and took him to the police station.
E. Hypothetical. Sticky-Fingered Sam was arrested for burglary. The interrogating officer
falsely told Sam that his fingerprints were found at the crime scene in order to induce him to
about the strength of the evidence against them usually does not render a confession
involuntary. Courts have been remarkably tolerant of police deception going to the strength
of the evidence linking the suspect to the crime because such deceptions are unlikely to
two witnesses had identified suspect); State v. Register, 323 S.C. 471, 476 S.E.2d 153 (1996)
(misrepresentation that defendant's tires and shoes matched impressions and prints found at
murder scene and DNA linked him to crime), cert. denied, 519 U.S. 1129, 117 S. Ct. 988,
136 L. Ed. 2d 870 (1997); State v. Boren, 224 N.W.2d 14 (Iowa 1974) (misrepresentation
that daughter who had accused father of incest had passed a lie detector test), cert. denied,
422 U.S. 1008, 95 S. Ct. 2630, 45 L. Ed. 2d 671 (1975). 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 or at
§6.3 Fourth Amendment Exclusionary Rule
The Fourth Amendment exclusionary rule requires courts to suppress confessions if they are: (1)
urth Amendment rights, such as an illegal
Terry stop, arrest, or search).
A. Causal connection
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
4. Kaupp v. Texas Part II. Police detectives, acting without probable cause or a warrant,
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- Once there, they administered Miranda warnings and told him
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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
§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 dur
taking the arrestee before a magistrate, even if the confession was voluntary.
A. Basis for the rule
The McNabb-Mallory
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
C. Status of the McNabb-Mallory rule in state courts.
Because the Supreme Court promulgated the McNabb-Mallory rule under its supervisory
§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 is operative whenever police interrogate a suspect who is then in custody
about an offense for which he or she has not yet been charged. To procure an admissible
confession, police must:
1. warn the suspect of his or her Fifth Amendment rights,
B. Policy underlying the Miranda rule
The Supreme Court had three purposes in mind for establishing Miranda safeguards: (1) to
C. 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
§6.7 Custodial Interrogation Defined
A. When the rule applies
Miranda safeguards are necessary only during custodial interrogations. For police/suspect
B. Custody defined
Custody exists when the interrogation environment has the coercive atmosphere of an arrest.
Factors that can create an arrest-like atmosphere include: (1) prolonged questioning, (2)
1. 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
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2. Suspects are not in custody during routine traffic stops and many investigative stops
because the objective circumstances surrounding these encounters rarely resemble an
arrest.
a. Berkemer v. McCarty (Part II
after observing him weaving in and out of traffic and asked him whether he had
been drinking. The defendant replied
C. Interrogation defined
Miranda safeguards are necessary only when a suspect in custody is interrogated.
Interrogation, for purposes of Miranda analysis, includes both express questioning and its
1. Express questioning
a. Statements volunteered without an interrogation are admissible despite lack of
Miranda warnings.
b.
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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
though the checkout counter without paying. As Sam walked out the door, Officer
Johnson approached him from behind, and tapped Sam on the shoulder. Sam turned
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
b. 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
the location where the missing gun was believed ne of them
D. Public safety exception
1. The police may delay administration of Miranda warnings before interrogating a suspect
2. Benson v. State (Part II). While making an arrest for crack cocaine possession, police
observed Benson place something in his mouth and start chewing. Believing Benson had
swallowed the cocaine, and knowing that swallowing too much can be lethal, one of the
officers asked Benson how much crack he had eaten. Benson replied that he had eaten
E. Non-police interrogators
Private detectives and security officers are not required to observe Miranda safeguards
because the Constitution constrains only the actions of the government.
§6.8 Procedural Requirements for Custodial Interrogations: Miranda Warnings and Waivers
A. Warnings
1. Prior to interrogating a suspect who is in custody, police must issue the following set of
warnings:
a. You have the right to remain silent.
2. Police do not have to use the exact words used by the Supreme Court. Warnings are
sufficient so long as they adequately apprise the suspect of all four of the above 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
2. 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 largely silent and unresponsive for the first two hours and forty-five minutes
into the interview until he was asked whether he prayed to God for forgiveness for
C. Cessation of questioning.
If the suspect at the beginning or later makes a clear and unambiguous request for counsel or
to end the interview, the questioning must cease immediately. Police, nevertheless, are free
to ignore ambiguous or equivocal assertions, and are not required to ask clarifying questions.
1. Davis v. United States (Part II). About one and one-half hours after David waived his
Miranda rights and the interrogation began
want a lawyer before I say a
2. Berghuis v. Thompkins (Part II) The Supreme Court extended the clear request rule to
the right 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
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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 (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 manner that shows a willingness and desire to engage in a generalized
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 interview ended when Shatzer invoked his right to
counsel, and he was released back into the general prison population. Two and a
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
3. Discussion question. Sticky-Fingered Sam was arrested for burglary, taken to the police
station, and administered Miranda warnings. Sam stated that he understood his rights
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a. The next morning, the same officers came to the jail, told Sam they would like to
speak to him, advised him of his Miranda rights, and asked him if he was willing to talk.
Sam stated that he had changed his mind about wanting to speak with an attorney,
signed a written waiver, and confessed. He has now moved to suppress his confession,
claiming it was procured in violation of his Miranda rights.
obtained in violation of the Miranda rule?
Yes. The facts of this hypothetical are taken from the facts of Edwards v. Arizona, 451
b. Sam was unable to make bail. Three weeks after the first interview, another detective
visited him in jail and read him his Miranda rights. This time he agreed to talk and
spilled the beans. violation of the Miranda rule?
§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
B. Deliberate elicitation standard
The standard used to determine violations of the Sixth Amendment right to counsel is
