Select Page

Criminal Procedure
University of Dayton School of Law
Brenner, Susan W.

Criminal Procedure

Fall 2011


Interrogation/Confession Law: 3 Standards

Due Process Voluntariness Test – 14th Amendment

Focus is whether the confession is voluntary or not

Confession has to be voluntary for it to be admitted into evidence


6th Amendment Right to Counsel (Massiah)

Torture and Confessions

Police were able to use torture to get a confession until 1936

Hector (Slave) v State:

Confession must be freely & voluntarily made

Torture (physical abuse) & hope (hope is just as compelling) – these are automatically out of bounds

Torture to Get Info from Suspected Terrorists

Police Interrogation without Torture:

Interrogation = making one confess when one does not want to, getting a person to admit

Lisenba v California:

Denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice; in order to declare a denial of it we must find that the absence of that fairness fatally infected the trial

Was the person’s will overborne by the conduct of the police (test/standard)? Looking at whether the police went too far

Motion to Suppress – trying to show that the confession cannot be used b/c it is a violation of the Constitution; obtained in violation of due process

Using Brown v Mississippi to show that the confession was coerced:

Prolonged interrogation, sleep deprivation (resistance goes down), relay questioning, questioned by more than one person

In this case, the suspect’s partner in crime confessed and the police were attempting to befriend him (dinner & cigars), suspect alleged he was slapped by the officer, beaten, had bruised ears & he was left alone w/the officer that slapped him when he finally testified

Suspect was taken back to his home, was seeing the pond where his wife had drowned

Trickery, manipulation

Focusing on 2 things:

What did the police do – tactics (to make you vulnerable, etc) and

The suspect – how vulnerable is the suspect to what the police are doing; factors include: age, health, education, experience, sophistication, experience w/criminal justice system

Test- Is the person’s will over-born? Look at

§ 1) Suspect- age, education, health, IQ, experience with criminal justice system (can work both ways- can know what can happen, or if convicted before know not to trust police)

§ 2) Tactics- false lie detector results, lies, false friendly, fabricating evidence

§ 3) Context- police manipulate time, environment, place, food, sleep

Prosecution Argument: why did the police NOT go too far

James did not confess during these periods described above – confessed 10 days later, there was a break in time

He only confessed when his partner confessed

Taking advantage of the situation & confessing to make his partner look like the “bad guy”; shows James knew what he was doing

CA courts said that the confession was voluntary, however Supreme Court says NOT voluntary

Difference between due process and the rules of evidence

Rules of Evidence is trying to prevent/exclude false evidence (reliability)

Due Process is trying to prevent fundamental unfairness in the use of evidence whether true or false; it is the integrity of the process that matters

-Until the mid-1960s- no right to demand a lawyer- pre-Miranda.

– So at this pt- all Spano has is the due process voluntariness test- aka did they get a confession because his will over-borned (1-3 above)?

Spano v New York:

Courts are trying to resolve conflict btw 2 fundamental interests of society: (1) interest in prompt & efficient law enforcement and (2) interest in preventing the rights of its individual members

Before turning himself in for shooting a former boxer, he calls his childhood friend Bruno

Police begin questioning him for prolonged periods of time & did NOT allow him to speak to his attorney – Spano refused to speak

Police decide to bring Bruno in, who is studying to be a police officer (police cadet), to talk w/Spano; Bruno says that he is in a lot of trouble, he has 3 kids and a pregnant wife and is going to lose his job unless Spano confesses (trick/lie)

Started this questioning at night & questioned him into early morning (more vulnerable); approx. 8 hour interrogation; questioning was persistent & continuous

Court found that the use of a friend went to far; tricks are permissible, but NOT in this situation


Sleep deprivation – being questioned late (8 hours), tired

History of emotional stability

No past history of law violation

Lie (Bruno tactic) – bond of friendship, trust, turning someone he trusted again him; difference between a police officer lying & a trusted friend

Tricks distort information and affects decision making (could argue it isn’t truly voluntary)

Prosecution – Argue that it is perfectly ok to lie

Court mentions these factors: foreign born man, 25, subject to leading questions of a skilled prosecutor

Due Process Test/Voluntariness Test:

Do we have coercive police conduct? Do we have interrogation?

No, then you are done; this test cannot be used (see Connelly); no basis for applying this test


Whether the person’s will was overborne?

Suspect Characteristics (health, IQ, education, age, etc) – how susceptible is the person; you are looking at what happened to this individual; and

Police tactics

Note: these rules apply to the guilty as well

Due Process Voluntariness Analysis

Question #1: Was there coercive police conduct, i.e., did the police “do” something to try to get the person to confess?1

Yes = go to Question #2

No = end of analysis (no state action, no violation of the due process clause)

Question #2: Did the police’s actions overbear the suspect’s will, so that the confession is not voluntary?

Suspect characteristics (e.g., age, health, education, experience with the criminal justice system, any other characteristics that would tend to make him/or more or less vulnerable to the police’s interrogation tactics)

Police tactics (e.g., physical violence, promises of leniency, tricks, lies, exploiting suspect’s fatigue and/or health/mental problems, etc.)

Context (where and when did the interrogation occur, how long did it last, was the suspect given food and/or drink, was the suspect allowed to go to the bathroom and/or given access to any medication he/she needed)

If the analysis progresses to Question #2, that’s where the diagnostic takes place, i.e., that is where the defense will use all the above factors to argue that the confession was not voluntar

ching an officer & confessing

Police committed no wrongful acts; did not coerce him; wasn’t even connecting him to the murder until he showed up

Defense states that this is not a product of free will

US Supreme Court says this is voluntary; there must be some coercive conduct from the police; these rules are about controlling the police

Can use the confession, but defense attorney can show that it is not reliable by using evidentiary rules

Vodka Hypo: Man found killed outside of mobile home w/a shotgun

§ Police go to a friend’s house & find him drunk w/half gallon of vodka & nothing on except socks

§ Police sit down & just listen for 8 hours (there are always 2 officers in the room)

§ Statement by first officer that found him: hoping he would get drunk & talk

§ Did the police do something to get him to confess?

o Did not force him to drink, they just let him drink

o Interrogation? Police officers in his house constantly for 8 hours

o Allowing him to drink with hopes that he would confess

o Police said we stayed there for 8 hours listening w/hope that he would confess, took a shot

§ Was his will overborne?

o Intoxicated, may not realize the consequences of the situation, makes him more vulnerable

o Impairment due to long term alcoholism (vulnerability)

o Relay questioning is no good; police changing off over the 8 hour period

o Interrogated at home, not at police station

o Later in the day, more tired

o 50 years old, assuming high school education

o Prosecution: police just listened, no questioning, no bullying, he was an adult & wanted to drink

o Not intimidating

§ State Supreme Court said it was NOT admissible, confession was NOT voluntary

Police Interrogation: Self-Incrimination Clause

5th Amendment: No person shall be compelled in any criminal case to be a witness against himself. (Does not apply in police interrogation situations)

Chavez v Martinez:

§ Never prosecuted for a crime, let alone compelled to be a witness against himself

§ Court says 5th Amendment right is NOT violated

§ Laying on a bed in an emergency room, officer cannot make him answer or lock him up

Schmerber v California:

Police ordered a hospital to withdraw blood over Schmerber’s objection; there was no doubt that he was compelled to give up his blood

5th Amendment privilege protects the accused only from being compelled to testify against himself, or other provide the Sate with evidence of a testimonial or communicative nature

Compulsion which makes a suspect or accused the source of real or physical evidence does not violate the 5th Amend – his testimonial capacities were in no way implicated