Select Page

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

Criminal Procedure
Susan Brenner
Fall 2010
General course description. 1 Q. each topic on exam.

Interrogation / Confession

Due Process
Test – Brown v. Mississippi
Miranda – supposed to fix problems with Brown

Grand Jury. Why study? 2 reasons

May encounter grand jury regardless of field I practice in. Need to understand dynamic.
No Miranda when testify before Grand Jury. Only 5th Amendment.

4th Amendment – unreasonable search and seizure

Topic 1 – Interrogation / Confession
1936 – no limitations on interrogation. Police beat confessions out of people.
Hector v. State p. 505

Confessions under torture. English Common Law says confessions need to be voluntary. They weren’t really voluntary though; just don’t go “too far”.
Can’t interrogate with a mind only to protect the innocent because always interrogate with the assumption of guilt.
Evidence standard – if can or can’t (notes not clear, check book) admissible

Common Law: Concerned with reliability.
2 things to be careful of:

Hope – can’t promise no punishment / leniency in exchange for confession because innocent person may confess just so they’ll be let go.

Prior to Brown v. Mississippi, police beat confessions out of people.
Brown said no torture. What is torture?
Common Law = physical abuse

Adverse consequence of Brown = police moved from physical to psychological torture. It became more difficult to control.

Brown v. Mississippi – 14th Amendment
Problems going into Brown:

The system was corrupt. Beatings were still occurring. Prisoners could testify at trial that their confessions were not voluntary but the person who did the beating was usually present at the trial. They were afraid.
Substantive due process – a fundamental flaw, that confessions were made under torture, turned court proceedings into a sham.

3rd degree – questions
2nd degree – psychological
3rd degree – force
Later standard = police should not overbear the will of the witness

Ticking time bomb
If there’s a ticking time bomb and you catch someone who knows where it is, should be able to torture them to find out because for greatest good.
Very controversial. Should it be okay, or no? How do you determine the balance?

Due Processvoluntariness –was the person’s will overborne by police action? There is always some influence. That’s the problem.

Diagnostic / Test – 3 categories



Experience with criminal justice system

Police Tactics

Assume questions

Trick. Ex “she’s still alive”
False friend
Length – how long questioned. Can’t just go on and on.


When? Depends on time of day / fatigue
Food / water

Lisemba v. California p. 516
Constitutional standard / not California std. p. 521
Forced confession = false evidence.

Always begin analysis with defense.


Mr. James (suspect) what makes him susceptible?

No formal education
Kept awake for 24 hours
Incest charge combined with no education could indicate mental deficiency.


Denied counsel – no Miranda yet. Only a misdemeanor in CA to deny counsel
Location – they kept moving him around, questioning him different places
2 witnesses saw bruises on his face. Looked as though he had been beaten.
Police officer who slapped him was left alone with hi

nce, there was no reason to push for a confession. Also judge had overruled all arguments as to the voluntariness of the confession so the jury believed the confession had been voluntary.
Sarivola / Fulminate p. 531

Fulminante (suspect)

Vulnerable, afraid, in prison, afraid he will be hurt or killed without protection
Physical stature (small guy)
Below average intelligence


False friend. Fulminante really believed Sarivola (plant) was his friend


Prison – feared physical harm

Chavez v. Martinez – similar case. Prison snitch. Violation of due process
*These rules only apply to state action. If Private citizens break the rules, can’t suppress.
5th and 6th Amendment
**Only apply once you have been charged. If being questioned, not charged.
5th Amendment

Court cannot force you to go to court and speak.
Judicial compulsion – cannot force you to speak
Congress can take the 5th as well.
Only applies to communication. Not blood, reading of transcripts, etc.
If take 5th but are given immunity, 5th goes away. Immunity takes away 5th Amendment right.

3 requirements

Must be compelled to go to court.
Must be asked to testify
The testimony you give would incriminate you.

2 competing concerns

Must be Constitutional
Need to fix the problems with the system.