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

Criminal Procedure

I. Confessions – Whether a confession is admissible is a matter of law to be decided by a court. (Hector v. State)
a. A Violation of Due Process occurs when there is an absence of fairness has fatally infected a trial
b. A confession is not permissible if the defendant’s will is over borne.
i. When a defendant’s will is over borne, any conviction based on that testimony must be overturned.
ii. When an accusation is made that the will was overborne, the court must independently examine that accusation.
1. When the facts relating to this claim are disputed they are to be resolved by a trier of fact unless sending the matter to a jury would be fundamentally unfair (perhaps as in when the state alone could prove what happened… maybe I should ask Brenner about this point).
2. Any time a prisoner is held incommunicado the record should be scrutinized to ensure that the confession was voluntary.
a. This analysis should consider:
i. The person’s character
1. Consider their age and how experienced they are in dealing with authorities
2. Consider also their IQ and other relevant life experiences and considerations
ii. Police Actions
1. Did they deprive the defendant of sleep?
2. How long did they question him?
a. Consider fatigue
3. Did they offer food and drink?
4. Did they offer false hope? (promise of leniency is this too right?)
a. A confession can never be received as evidence when the prisoner has been influenced by a promise. (Bram v. United States)
5. Did they threaten the defendant?
a. A confession can never be received as evidence when the prisoner has been influenced by a threat. (Bram v. United States)
6. Was unacceptable trickery used?
iii. Confessions are inadmissible if

rne when coercion happens unless the defendant does not know he is speaking to a government agent. If he does not realize this, then the voluntariness of his testimony is much more likely.
c.
3. Trickery – Some trickery is allowed
a. Acceptable
i. The false friend is acceptable, but such government agents are not allowed to act in a manner which may overbear the defendant’s will
ii. In Fulminate the government’s promise of protection to the defendant in exchange for his story represented coercion. They reasoned this confession was freely given nonetheless.
1. When an agent is undercover, the danger of coercion is not as extreme as it is when in custody and under official interrogation.