THE LAW OF CONFESSION AND SELF-INCRIMINATION

    The law of confession doesn't exist in any one place. It is a conglomeration of Constitutional Law, Federal and State statutes (legislative law), and Anglo-American tradition. These sources are encapsulated and expressed within the hurdles that a confession must pass in order to be considered valid:

SOURCES OF THE LAW OF CONFESSION

• 4th Amendment exclusionary rule - this forces a suppression hearing anytime someone claims the confession is invalid. Actually, this branch of the Fourth Amendment exclusionary rule is known as the fruit of the poisonous tree doctrine and is drawn from the case of Wong Sun v. U.S. 371 U.S. 471 (1963). Confessions, no matter how voluntary, are automatically fruit of the poisonous tree if a suspect's fourth amendment rights were violated.

• 5th Amendment self-incrimination right - word-for-word it reads like this: no person...shall be compelled in any criminal case to be a witness against himself. This means testimony, not physical evidence.

• 6th Amendment right to counsel - extended to all critical pretrial phases of criminal procedure.

• 5th Amendment due process clause - see 14th Amendment

• 14th Amendment due process clause - together with the 5th Amendment clause, these two make up the basis for the free & voluntary rule which is a major test in the law of confessions. That is why number four and five in this list are often combined and the fifth hurdle is then:

• McNabb-Mallory rule - this is legislative law that prohibits any "undue delay" in arraignment, and holds null and void any confession, no matter how voluntary, if derived from lengthy delays in bringing the suspect to justice.

THE VOLUNTARINESS TEST

    Also called the free & voluntary rule, this test is a two-prong test involving subjective and objective factors much like a totality of circumstances test. One part of the test focuses upon the susceptibility of the suspect, and the other part of the test focuses upon the environment & methods used.

    This tradition holds that confessions must be a product of free will & voluntary choice. Free will must not be "overcome" and voluntary choice must not be "coerced." This tradition is sometimes taken to imply a positive freedom of choice by some interpreters, but that in itself is questionable.

    Compare the Anglo-American tradition to the Continental Law tradition. When trial by ordeal ended around 1215, most of Europe from the 13th-18th century adopted the LAW OF TORTURE. The closest the English countries came to this was adoption of the Bailey system of having the same jury hear dozens of cases a day. The law of torture had four rules:

    Germany today has about a 40% confession rate, but countries operating under modern-day Continental Law don't relieve the prosecutor from the burden of proof when trying a case with a valid confession.

    By comparison, the U.S. has about a 60% confession rate, and a confession is the "golden goose" of Anglo-American criminal justice. It normally relieves a prosecutor of the burden of proof in trying a case. Only when a defense lawyer challenges the validity of a confession (via a motion to suppress) does this force the burden back onto the prosecutor.

KEY DEVELOPMENTS IN CONFESSION LAW

• Brown v. Mississipi (1936) -- physical coercion violates 4th Amendment

• Chambers v. Florida (1940) -- psychological coercion violates 4th Amendment

• McNabb v. U.S. (1943) -- arrestee must be taken before magistrate without delay

• Ashcraft v. Tennessee (1944) -- psychological coercion not admissible

• Haley v. Ohio (1948) -- relay teams of interrogators are inherently coercive

• Upshaw v. U.S. (1948) -- McNabb rule upheld by 5:4 decision

• Mallory v. U.S. (1957) -- court reaffirms McNabb rule

• Payne v. Arkansas (1958) -- holding suspect incommunicado is coercive

• Miranda v. Arizona (1966) -- suspects must be read rights before questioning

• U.S. v. Ferrara (1967) -- promises of light bail are not necessarily disapproved of

• Omnibus Crime Act (1968) -- abolishes McNabb-Mallory rule

• Frazier v. Cupp (1969) -- police can say that an accomplice is cooperating

• Harris v. New York (1971) -- suspects who were not read their rights but confessed can have their confession used in court to impeach their testimony

• U.S. v. Arcediano (1974) -- promises for federal instead of state prison approved

• Beckwith v. U.S. (1976) -- custody, not focus of suspicion, triggers Miranda

• Brewer v. Williams (1977) -- established functional equivalence test for custody

• U.S. v. Fike (1977) -- no need to reMirandize suspect unless day(s) have passed

• North Carolina v. Butler (1979) -- waiver of Miranda doesn't have to be written

• California v. Braeske (1980) -- request to speak off the record must be honored

• Rhode Island v. Innes (1980) -- no functional equivalent if police talk to each other

• People v. Deborah (1981) -- established moonlighting/private security exception

• Edwards v. Arizona (1981) -- Miranda waived if suspect initiates conversation

• California v. Prysock (1981) -- Miranda warning don't have to be read ritually

• Fletcher v. Weir (1982) -- suspect's silence can be used to impeach testimony

• New York v. Quarles (1984) -- established public safety exception

• Duckworth v. Eagan (1989) -- Miranda warnings don't have to be read precisely

• Illinois v. Perkins (1990) -- Police can pose as inmates to extract confession

• Minnick v. Mississippi (1990) -- Interrogation stops when requesting attorney

• Pennsylvania v. Muniz (1990) -- Miranda warnings don't apply to drunk drivers

• Arizona v. Fulminate (1991) -- Coerced confessions don't overturn convictions

• Davis v. U.S. (1994) -- Suspect must make unambiguous request for attorney

ADMISSIBILITY AND SUPPRESSION

    Interrogation leading to confession is one of the most widespread practices today. Our police agencies are extremely good at it, and I'd venture to say the United States probably leads the industrialized world in confession rates. Three out of four people waive their Miranda rights (Leo 1996c), and the number of people that confess to police is usually expressed as 60% of all interrogations, although the range is more like 50-75% (Gudjonsson 1992). Comparing this to Germany, which only has about a 40% confession rate, American police have a right to be proud. A confession is also regarded as the "holy grail" of law enforcement. It's prima facie, direct evidence of guilt. It's not a presumption of guilt; it's not even just part of the proof that a prosecutor must deliver in court; it's often the main thing relied upon for conviction at trial.

    Unlike Germany and other industrialized countries, the U.S. has some rather unique evidentiary procedures where the burden of proof (and burden of persuasion) shifts. Confessions in America relieve the prosecutor of the burden of proof. The best available defense strategy is to file motion for a suppression hearing. It's the only way to get the court to address the issues associated with whether the confession was proper or not. Most states require that suppression motions be made prior to trial. At suppression hearings, the defense attorney bears the burden of proof that a search was illegal or a confession was coerced. The only exception involves allegations that Miranda warnings were not given, in which case the state retains the burden of proof.

    Suppression hearings are best characterized as swearing matches over what really went on at the police station. Judges are reluctant to grant motions for them because they are restricted to an umpire role. The defense attorney who files them may be perceived as engaging in frivolous pretrial delay, but they have nothing to lose. If the motion is denied, discovery rules may put the defense at a distinct advantage; if the motion is granted, the attorney may be able to make such allegations that the prosecutor is willing to drop the charge or plea bargain.

    Defense attorneys understandably want stronger discovery laws (discovery is the informal and formal exchange of information between prosecution and defense). Discovery seeks to ensure fairness in the adversary process. Ambush, concealment, and surprise are not to be tolerated by the judicial system. The rules of criminal procedure require the defense to give notice beforehand if they plan to mount an alibi defense, offer an insanity plea, or call expert witnesses, and all these things may trigger a pretrial hearing. States that adhere to the Brady Rule (Brady v. Maryland 1963) require the prosecutor to open their files completely to the defense, but most states don't operate under the Brady Rule, and defense attorneys must be more resourceful. In practice, the prosecution offers to share what evidence it wants to in order to give the defense an advance glimpse at the prosecution's case in order to encourage a plea of guilty. There are cons on both sides with the discovery rules. On the one hand, it can strain attorney-client relationships if the defendant isn't telling their attorney everything; and on the other hand, it gives the defense an advantage to engage in witness-tampering (if they are so inclined).

    The exclusionary rule prohibits the prosecutor from using illegally obtained evidence during trial. There are, in fact, three (3) distinct exclusionary rules: one for search and seizure; one for identification of suspects; and one for confessions. The exclusionary rule for confessions is contained in at least 20 different pieces of case law, and it's not all that precise. However, the exclusionary rule is the Supreme Courts' sole technique for enforcing several vital protections of the Bill of Rights.

INTERROGATION PROCEDURES

    Typically, detectives begin by making eye contact and engaging in idle conversation with the suspect in a sparsely-furnished room. The Miranda warnings are given if they haven't been given already (3 out of 4 people waive Miranda). Next, the detective states that it is their job to discover the truth and they usually share some piece of evidence in the case at this point. Negative incentives are usually used first -- in an attempt to get the subject to confess because they would certainly lose any battle in court. Positive incentives are then usually used -- in an attempt to get the suspect to feel better if they confess.

    The statements that suspects make to the police at this point can be categorized as:

• Full confession (24% of the time)

• Partial confession (18% of the time)

• Incriminating statement (23% of the time)

• No incriminating statement (36% of the time) (Leo 1996a)

    Incriminating statements tend to be lumped by detectives into the category of "soft" confessions or what is sometimes called an "admission" (everything above being a "hard" confession). Some prosecutors will accept "soft" confessions from the police and go to trial with them. Police rarely press for more than they think they will get out of a person. All they are looking for are information supporting the elements of the crime a person is suspected of being involved in. The suspect's statement is usually reduced to a question/answer form or a narrative (and it can be handwritten), as follows:

SELF-INCRIMINATION: RIGHT OR PRIVILEGE?

    The Fifth Amendment clause which reads "no person shall be compelled to be a witness against himself in any criminal case" bears a striking resemblance to the old phrase "nemo tenetur seipsum accusare" (no man is bound to accuse himself), but from a historical as well as contemporary standpoint, this has been easier said than done. Over the years, interpretation of this clause has resulted in expansion and contraction of this supposed (fundamental fairness) right, but given that the Supreme Court has not yet articulated its real meaning, it is perhaps best seen as a privilege, albeit a very broad privilege (one that protects not only direct answers to questions, but anything that would furnish a link in the chain of evidence needed to prosecute).

    First of all, the privilege against self-incrimination is a personal one. It applies to individual human beings only. A corporation cannot "plead the Fifth" in order to keep quiet. Secondly, it only applies in criminal cases. A witness cannot keep silent or withhold information in civil proceedings (which are not criminal in nature). Thirdly, it only applies in cases where the phenomenon of "compulsion" is present. This is similar to the Kastigar standard (Kastigar v. U.S. 1972). In order for something to be incriminating, it must not just reveal criminal activity, but produce the real likelihood or risk of imprisonment. Likewise, something is compelled only if there is a risk of imprisonment for refusal to testify or produce documents. Finally, the privilege preserves some interesting features of the American adversarial system. When a defendant refuses to testify in their own trial, neither the prosecutor nor the judge can make any adverse comments about it (indeed, the jury must also be cautioned not to make any undue inferences), unless, of course, the defense opens the door to it by commenting upon it in closing arguments.

    The study of self-incrimination law is the study of a balancing test with no name. It is fairly easy to decipher the following elements of this test:

    On the one hand, the right of government to compel evidence has practical roots. No crimes would be solved, and no trials would be held, if the justice system operated purely on a voluntary basis of cooperative, come-as-you-are, walks-ins only basis. There must be some equivalent of the oath ex officio even in the most democratic of societies in order to compel essential information, appearances, testimony, and evidence. In our society, this is accomplished through the power of SUBPOENA (technically called subpoena ad testificatum but shortened to subpoena, and one to compel documents is called a subpoena duces tecum). This power is intended to make it the duty of all persons to appear and testify. Statutes regulate their form, issuance, and service, but generally, they are issued by the clerk, a judge, a magistrate, or a party's attorney. A subpoena duces tecum is often blank and filled out by the party. Subpoenas can be delivered in person, by mail, or by telephone.

    Another tool the government has is the power of IMMUNITY which has deep roots in American jurisprudence in recognizing the practical value of not prosecuting certain individuals who have important information to give but who are nonetheless implicated in the crime themselves. There are two types of immunity: transactional immunity which clears a person forever; and use immunity which clears a person from everything except independent evidence of having committed a crime. People immunized at the federal level are automatically immunized at the state level, and vice-versa, if derivative use immunity is granted. Accomplices (small fish) are often given immunity in order to convict the core criminals (big fish). If someone enters the WITNESS PROTECTION PROGRAM, they are given between $1500 and $2000 dollars a month, living expenses. They are given $5000 dollars to buy a car. They are given $6000 dollars for furniture. Their medical, dental, and most everything else is paid. It's another tool used to keep people in line in case they are needed to testify in something else, despite rules which prohibit testifying again.

    On the other hand, the right of all citizens to be protected from undue government intrusion, intervention, and coercion in their lives is paramount. According to the Jackson rule (Michigan v. Jackson 1986), nobody can waive their 5th Amendment rights if they have an attorney on retainer or have invoked their right to an attorney in clear, unequivocal terms. And, citizens have the right of PRIVILEGE. By statute, certain relationships are sacrosanct and confidential, including husband-wife communications, attorney-client, physician-patient. North Carolina does not recognize an accountant-client nor a reporter-source privilege. The Court has for the most part, however, adopted a literalist interpretation of 5th Amendment safeguards. The word "witness" (in no person shall be compelled to be a witness...) is interpreted strictly as safeguarding oral testimony only. The person's bodily evidence can and will be used against them. Also, there is the controversial "Contempt of Court" charge, which is one way to enforce a subpoena along with fees and other penalties. Criminal contempt is willful disobedience, resistance, or interference with a court's lawful process, order, or directive. In North Carolina, it carries a penalty of 30 days imprisonment and/or $500 fine. Civil contempt carries an indefinite period of imprisonment (as long as the civil contempt continues). However, it's the things that do NOT carry self-incrimination protection that are more important to study:

THINGS THAT DO NOT CARRY A SELF-INCRIMINATION PROTECTION:

• The use of one's body to incriminate one's self (includes: Appearance Evidence, where no bodily surface is penetrated and no biological materials removed)

• Invasion of one's body to obtain evidence (includes: Bodily Evidence, where the surface is penetrated, X-rayed, scraped, poked, prodded, or pumped)

• View of private parts (includes: Strip Searches and Body Cavity Searches, which we'll talk about later)

• Voice characteristics (includes: Voiceprints and/or lineup compulsions "Your money or your life")

    It is important to note that Appearance Evidence has zero (or none) 5th Amendment protection. Bodily evidence will trigger the balancing test, and the right of government to know must be balanced with the right of individual privacy. Much of this kind of evidence is incriminating physical evidence: footprints, fingerprints, blood samples, DNA, hair, saliva, breath, voice, removal of a bullet, a diary, and records.

    Both invasion of one's body and Body Cavity Searches involve the invasiveness standard, and this is again, an example of a balancing test. The grounds for conducting any of these involve the following factors, taken from two important cases: Schmerber v. California 384 U.S. 757 (1966) and Winston v. Lee (1975). In Schmerber, the Court had no problem in drawing a blood sample from a driver who survived his own car crash, and in Winston, the Court ruled that surgery to remove a bullet lodged in a bone was too invasive.

The difference between strip searches and body cavity searches can be summarized as:
 

INTERNET RESOURCES
A Corel Presentations SlideShow on the Self-Incrimination Privilege (requires plug-in)
FindLaw: Fifth Amendment Rights
FrontLine: How Snitches are a Key Part of Prosecutorial Strategy
Interrogating a Suspected Terrorist
John Reid on False and Coerced Confessions
You're Guilty Until Proven More Guilty

PRINTED RESOURCES
Baker, L. (1983). Miranda: Crime, Law and Politics. NY: Antheneum.
Brandt, C. (1991). The Right to Remain Silent. NY: St. Martin's.
Cipes, R. (1966). Crime, Confessions, and the Court. Atlantic Monthly 55.
Garner, T. & T. Anderson. (2001). Criminal Evidence. Belmont: Wadsworth.
Grano, J. (1979). Free Will and the Law of Confessions, 65 Virginia Law Review 859-945.
Gudjonsson, G. (1992). The Psychology of Interrogations, Confessions and Testimony. NY: Wiley and Sons.
Helmholtz, R. (1998). The Privilege against Self Incrimination: Its Origins and Development. NY: LA Lawyer Books.
Inbau, F., J. Reid, & J. Buckley. (1986). Criminal Interrogation and Confessions. Baltimore: Williams & Wilkins.
Leo, R. (1992). From Coercion to Deception. Crime, Law & Social Change 18: 35-59.
Leo, R. (1996a). Inside the Interrogation Room. Journal of Criminal Law and Criminology 86: 266-303.
Leo, R. (1996b). Miranda's Revenge: Police Interrogation as a Confidence Game. Law and Society Review 30: 259-88.
Leo, R. (1996c). The Impact of Miranda Revisited. Journal of Criminal Law and Criminology 86: 621-92.
O'Hara, C. & L. O'Hara. (1980). Fundamentals of Criminal Investigation. Springfield: Charles Thomas.
Rutledge, D. (1994). Criminal Interrogation: Law and Tactics. Placerville, CA: Copperhouse.
Zulawski, D. & D. Wicklander. (1993). Practical Aspects of Interview and Interrogation. Boca Raton: CRC Press.

Last updated: July 02, 2006
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