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

CRIMINAL PROCEDURE
Brenner/ Fall 2006
 
OVERVIEW
Confession Law
DP 
5th Amendment 1) right to silence and 2) counsel- custody and interrogation (Miranda)
6th Amendment right to counsel after charged (Massiah)
Grand Juries
4th Amendment constraints on search and seizures
 
INTERROGATION
Interrogation: competition of minds
 
CONFESSIONS: The Voluntariness Requirement: Developed in Brown v. Mississippi but reached its current state in Colorado v. Connelly. A confession may not be used if it is obtained in violation of DP
 
TEST: DUE PROCESS VOLUNTARINESS ANALYSIS: The court looks to see if the person’s will was overcome by what was being done to him. In diagnosing if one’s will is overcome one must look to the totality of the circumstances.
Purpose: The aim of the DP requirement is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whether true or false (Lisenba v. California).  
 
1.        Was there coercive police conduct? Did the police try to get a confession? There must be some action taken by a state officer in his official capacity
a.        If NO, this ends analysis and the confession was voluntary
b.       If there was, then go to next step.
 
2.        Did the coercive police conduct overbear the person’s will?
a.        Move into diagnosis/ looking to surrounding circumstances
                                                   i.      Suspect Characteristics: (How and what makes an individual vulnerable?)
1.         Age
2.        education
3.         IQ
4.        foreign born
5.        experience with criminal history
6.        language barrier
7.        Physical Condition/ health
8.        Emotional condition/ mental condition
                                                  ii.      Police Tactics (They are allowed to lie, as long as don’t promise leniency)
1.        withholding food and water or using it as bait/ bribe
2.        withholding of medication
3.        withholding of bathroom facilities
4.        holding children while questioning parent
5.        physical abuse
6.        deception/ trickery
7.        promise of leniency or threats
8.        relay questioning
                                                iii.      Context
1.        when confession was obtained
2.        where the confession was obtained
3.       how long did the interrogation last
 
*** It is very difficult to suppress an adult’s confession on the voluntariness standard*****
 
 
History: prior to 1936 (Brown v. Missippi) there were no “real rules” on confessions only that coerced confessions were not reliable.   Today courts don’t find that wills have been overborne, but there has been a shift from a physical strategy to subtle psychological strategy.
 
MIRANDA: Not crime specific and only applies while in custody (not in

ess voluntarily comes to police station and responds to question when not in custody.
If arrested: in custody, even if just placed in patrol car.
Δ must know talking to police
 
WHAT IS INTERROGATION?
Express questioning OR functional equivalent, words or acts by police that are made to deliberately elicit a confession given special circumstances they know about the person.
Police allow situation to develop: no Miranda given if police do not directly interact w/ the suspect. (Unless police intentionally set up compromising situation for purpose of inducing D to incriminate himself, interrogation).
 
Rhode Island v. Innis:
(Custody AND interrogation) apprehended and in custody, Mirandized and asks for an attorney. Officers w/ individual in car talk about danger of handicapped child finding loaded weapon. ∆ takes police to location of gun.
Interrogation: express questioning or words/acts (other than normal) which are reasonably likely to incite a confession.
RULE: words or actions which are the product of a policeman’s words that the police should have known were reasonably likely to elicit an incriminating response.