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Criminal Procedure: Investigation
St. Louis University School of Law
Branham, Lynn S.




1. The Requirement for Voluntariness

· Involuntary confessions violate the privilege against self-incrimination under the 5th amendment

· Brown v. Mississippi (1936)

§ Crucial case holding that confessions gained involuntarily are inadmissible as violating the Fifth Amendment’s privilege against self-incrimination

Facts: D indicted for murder; police came to his house and tortured him. He finally confesses. Rule: a state may not contrive a conviction through a forced confession.

Holding: this confession was involuntary, and thus inadmissible against the D.

Admission of involuntary confessions abridges due process. (note this is 14th amendment DP–the court is introducing this constitutional violation)

The concern underlying this opinion is that involuntary confessions are unreliable–there is concern that person is innocent, and only confessed to stop the torture.

Distinction b/w VOLUNTEERED and VOLUNTARY confession:

1) Volunteered:

§ Chose to make the statement–NOT the product of questioned.

2) Voluntary:

§ Being asked questions, but answered freely–person is being questioned but the responses are made voluntarily.

Burden of proof for voluntariness of the confession is government

1) By the preponderance of the evidence that the confession was voluntary

§ i.e. more likely than not (51%)– there can be a 49% chance that the confession was involuntary and the confession will STILL come in

2) Another thing to note: If the defense lawyer don’t succeed on getting the confession suppressed on due process grounds , the D has a constitutional right to bring in coercive circumstances of the confession that happened to the client–its an EVIDENCE question, to show jury why the confession should be discounted

· There WILL be times when we know that the person did do the crime–but even if confession is reliable, it still ABRIDGES DUE PROCESS.

· There are OTHER reasons as to why involuntary confessions are a requirement:

i. They are unreliable (see Brown),

ii. To deter police brutality/misconduct

iii. Contravenes basic societal precepts of decency

iv. Respect for “free will”, respect for human dignity

v. Inconsistent with our adversarial system of justice

· (that truth will be unveiled through cross/examination, not vigilante justice)

1. The Wheel Case Example: Jimmy slaughters his family. D moves to suppress his statement, asserting involuntary confession. What facts determine if should be admitted?

2. Determining Whether a Confession is Voluntary

· Class hypo: the Wheel Case: Jimmy slaughters his family; moves to suppress, asserting involuntary. What facts determine whether the confession should be admitted?

· “totality of the circumstances” factor assessment:

1) Details about police conduct

i. Length of interrogation, circumstances, i.e. deprived of basic bodily functions and number of officers present

ii. Use of force and threats of force (see AZ v. Fulminate (1991))

iii. Psychological pressure tactics, i.e. threats, promises, guilt (see Fulminate and Spano v. NY (1959))

iv. Deception, which MAY be employed and confession can still be voluntary, (see Lynumn v. IL (1963), Frazier v. Cupp (1969))

v. Given Miranda warnings

vi. Incommunicado situation, i.e. the extent to which D is isolated

vii. The place of interrogation and conditions of confinement

2) Details about the accused

i. Age

ii. Level of education

iii. Intelligence

iv. Mental condition/mental illness, i.e. a mentally ill person is more susceptible to psychological pressure tactics (see Colorado v. Connelly (1986))

v. Sobriety

vi. Experience in the criminal justice system

3. Is the Voluntariness Test Desirable?

· Advantage: focuses on totality of the circumstances; reliability is not the only concern

· Disadvantage: provides relatively little in way of clear guidance to officers as to what they can/not do

4. Coercive Questioning Torture, and the War on Terrorism

· The Military Commission Act of 2006 follows distinction that while torture is prohibited, coercive questioning is allowed and necessary in fighting terrorism.


1. Miranda v. AZ and Its Affirmation by the SC

· Stems from the 5th amendment privilege against self-incrimination

· The Government must prove:

1. There were valid warnings given, AND

· Listed or given their “fully effective equivalent”

2. D validly waived those rights

· Knowing, intelligent, voluntary

· “validity” is a HEAVY burden for the government

§ Miranda v. AZ (1966):

· Requirements set forth in Miranda.

o The right to remain silent:

§ Must ALWAYS be warned ON that occasion. Then and there, the D is vulnerable to that and THESE officers are going to respect that.

o “can and will be used against you in the court of law”.

§ Can, will, might, may–all interchangeable. This second warning is important b/c reminds D that the interrogator is adversary, not a friend. Police are skilled at getting Ds to make inculpatory statements.

o Right to attorney–and right for attorney to BE THERE. Also its not just the wealthy that have this right–there will be one provided to you.

· Must be given these listed right or their “FULLY EFFECTIVE EQUIVALENT”

o Must apprise D of right to remain silent, and has continuous right to invoke that.

§ Dickerson v. US (2000)

· Establishes Miranda as a CONSTITUTIONAL decision

2. Is Miranda Desirable?

· Criticisms are that Miranda is ineffective in that does not cure the inherently coercive nature of in-custodial interrogation; in the opposite, Miranda is criticized as preventing police from gaining confessions and allows guilty to go free. Also criticism based on constitutional interpretation and role of judiciary: neither text nor history of 5th amendment support Court’s requiring warnings be administered or right to counsel during interrogation. Miranda’s defenders argue it is consistent with 5th amendment, has significant effect in increasing professional behavior by police and enhancing public’s awareness of constitutional rights.

3. Requirements for Miranda to Apply

· Custody requirement

· Assuming interrogation, there is need for Miranda warnings when:

§ D is under arrest OR

§ A reasonable person in the D’s situation would believe that he is “significantly deprived” of his freedom AND is subjected to coercive pressures LIKE those experienced by a person arrested/in custody

2. An objective test, focus is on the reaso

o Concurrence (Kennedy) believes Elstad normally applies unless the Miranda violation was DELIBERATE, drops hints about “curative measures”

§ A deliberate violation does not mean second statement automatically admissible, it might come in; A “substantial break” in time and circumstances may cure the violation and thus be sufficient to get the second statement in

o Dissent (O’Connor, Scalia, Thomas, Rehnquist): Elstad applies.

§ does not matter if violation is deliberate (from D’s perspective, he would not know if it was/not). Focus is on pressures in custodial setting; as long as D given warnings and valid waiver secured, admissible. Focus on the clarity of this approach.

· Issues of Non-Testimonal Evidence

o US v. Patane (2004)

§ Plurality finds that physical evidence found as result of un-Mirandized but voluntary testimony can be used in Court. The plurality believes Miranda is only implicated by testimonial evidence.

§ Concurrence (Kennedy,O’Connor): depends on balancing a law enforcement need for probative, reliable evidence with interests underlying Miranda (including the interest in deterring Miranda violations). “It is doubtful”, but not impossible, that exclusion can be justified by deterrence rationale, but leaves open that in some situations, this may come up.

§ Dissent (Souter, Stevens, Ginsberg): plurality is giving incentive for interrogators to ignore the rule; fruit of the poisonous tree doctrine should extend.

6. What are the Exceptions to Miranda?

· The 4 major exceptions, i.e. the statement can be used against him despite failure to properly administer warnings, when (1) the statement is used for impeachment purposes, (2) the statements were obtained in emergency situation, (3) the statements were made at time of booking in response to routine questions, (4) the suspect waived his rights under Miranda.

1. Impeachment purposes

§ Statements obtained in violating of Miranda, though they cannot be used in the case-in-chief, can be used for impeachment purposes due to balancing (1) the interest in preventing perjury with (2) the interest in deterring Miranda violations.

§ Harris v. NY (1971): the speculative possibility that police misconduct could be encouraged was outweighed by value of admitting statement; privilege cannot be construed to include the right to perjury. While deterring violations is legitimate interest, it is protected by keeping out of case-in-chief (still significant incentive to comply with Miranda b/c want the confession in the case-in-chief).

2. Emergency situations

§ Statements obtained by police from suspects during emergency situations can be used against a D even if Miranda warnings not properly administered.

§ The “public safety” exception looks to see whether the officers’ questions were “reasonably prompted” by a concern for public safety.