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)