Arrest, Interrogation and Confession

ARREST, INTERROGATION AND CONFESSION
"The thing that is in Room 101 is the worst thing in the world." (George Orwell)

Police have a monopoly over the power of arrest since it is their responsibility to detect and apprehend criminals. They also have a further duty, to bring criminals to justice, which means police must intersect with the court system in a particular way. What we study most often in criminal justice are the limits on arrest power which ensure that each arrestee understands their Miranda rights. But then, there is Probable Cause, which among other things, forms the basis of the arrest, documentation of the arrest, how the case is reviewed, and in most cases, whether or not the case is made public (Arrest Reporting). As you can see, there's a whole lot of things that go into it before the arrestee is dragged before the cameras in the media for what has come to be called the "perp walk." Each police agency has its own special brand of arrest procedures in terms of how they accomplish their duties, but there are three common features -- the arrestee and the crime are clearly described; there is a procedure whereby a magistrate or district attorney reviews the warrant or report; and after a booking procedure takes place, limited information is made available to the media.

Police also have a monopoly over the power of apprehension, and apprehension is a much broader concept than arrest. There may be situations in which the police simply need to round up a suspect for questioning, and they have a variety of ways to accomplish this. Some of these include stops, based on the reasonable suspicion standard in Stop and Frisk law, or wants, which are based on strong suspicion or probable cause, such as broadcasts, alarms, pickup orders, bulletins, fugitive alerts, and wanted notices. Most of these methods involve communication systems that only the police are privy to, such as Automated Wants and Warrants Systems (AWWS), BOLOs, other computerized systems, alerts, teletypes, radios, and fax machines. In fact, more than one observer (e.g. Manning 1989) has remarked that policing is all about having a surplus of technologically sophisticated equipment to communicate with. This has led over the years to a remarkable police code system.

Police also tend to be good negotiators, involving special operations where a hostage-taker, suicidal person, or deranged individual has kidnapped somebody. This area, in fact, usually brings police work into an area that might be referred to as a special kind of police psychology, involving the real-time, crisis-driven analysis of the psychological makeup and motivation of the hostage-taker as well as the victim (Strentz 2005).

A distinction is sometimes, not often, but sometimes made between a want (alarm) and warrant (alert), going back to the old common law practice of hue and cry. For all practical purposes, wants and warrants are the same thing. Notices such as broadcasts, alarms, and pickup orders (sometimes called BOLO, which stands for Be On the LookOut for, or "wanted for questioning") are good examples of WANTS (Weston & Lushbaugh 2003). Other police departments are notified of a suspect's description and his or her vehicle first by radio, then by teletype, fax, or computer. These type of notices are issued under the authority of a police investigator, his or her supervisor, and/or in the name of the issuing police department. The purpose of these notices is to bring an investigation into focus, which means that the police have reason to believe the wanted person has information critical or vital to the case under investigation. Such people will be interviewed or possibly interrogated, but their homes or possessions may not be searched for evidence (which usually accompanies the arrest process).

A bulletin, fugitive alert, and wanted notice are all somewhat different. The most commonly known type of these is the All Points Bulletin (APB), which involves an expanded, usually targeted, area of geographical coverage, often into neighboring states. Fugitive alerts and wanted posters are similar in that other police departments, and sometimes the public, are informed with more descriptive information (a mug shot and fingerprints) and warnings about whether the suspect is armed and dangerous or will resist apprehension. The issuing department usually has information or intelligence about where a suspect may try to go. Federal involvement may result since being an interstate fugitive from justice qualifies one for placement on those infamous Top Ten Most Wanted lists. State police involvement may result in the form of roadblocks if, along with other reasons, there is a compelling need for this. Other notices may indicate the issuing department prefers the suspect be kept under surveillance, the purpose, as with most of these kinds of wants, being to catch the offender with incriminating evidence about prior and ongoing cases at the time of arrest. A reward poster is a different thing, and derives from the American tradition of bounty hunting, but it is unclear nowadays what the rules are that distinguish between a wanted poster and a reward poster. Here are some examples of a traditional wanted poster on the left and a modern reward poster on the right:

The point of all this is that gone are the days when police simply arrested somebody, and interrogated them to find incriminating evidence. Modern police methods involve collecting evidence before arrest, during the arrest, and after the arrest. An arrest is the ideal time to work on connecting the offender with other crimes, recover stolen property, obtain leads on other criminals, and wrap up the case against a particular offender with a confession. These, and other things the police may be interested in, require us to turn to the topic of interrogation.

Interrogation leading to confession is very common. American police agencies are extremely good at it, and the United States leads the industrialized world in confession rates, and we do it without torture. 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 true range is more like 50-75% (Gudjonsson 1992). Compare this to Germany, which only has about a 40% confession rate. American police have a right to be proud. A confession is regarded as the "holy grail" of evidence collection. It's prima facie, direct evidence of guilt. It's not just a presumption of guilt; it's not even just part of the proof that a prosecutor must deliver in court; it's the main thing that cinches a conviction. And by "cinching" a conviction, I mean the case usually doesn't even have to go to trial. The perp goes directly to jail.

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. You would need to take an Evidence class to understand these burdens, but here, it is important you know that confessions in America relieve the prosecutor of the burden of proof. When defending a client who has confessed, 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 judges are restricted to an umpire role in such hearings. Defense attorneys who file them may be perceived as engaging in frivolous pretrial delay or acts of desperation. If the motion is denied, trial rules put the defense at a distinct disadvantage. If the motion is granted, all that can usually be done is to plea bargain or proceed to conviction.

Defense attorneys understandably want stronger discovery rules (discovery is the informal and formal exchange of information between prosecution and defense). Discovery seeks to ensure fairness in the adversary process, and is a voluntary process, unlike disclosure, which is when the judge orders the two sides to cooperate and share. Ambush, concealment, and surprise are not tolerated by any 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 have to be more resourceful. In practice, the prosecution offers to share what evidence it wants to in order to give the defense a little taste or glimpse at the prosecution's case in order to encourage a plea of guilty. There are pros and cons on both sides the discovery issue in criminal justice. Some of the worst abuses in criminal justice derive from these issues, such as breaches of confidentiality, obstruction of justice, and the charge of witness tampering, a couple of these being grounds for reversible error.

The exclusionary rule prohibits the prosecutor from using illegally obtained evidence during trial. There are, in fact, three distinct exclusionary rules: one for search and seizure; one for identification of suspects; and one for confessions. The exclusionary rule for confession 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 in the Bill of Rights.

Typically, detectives begin by making eye contact and engaging in idle conversation or chit-chat with the suspect in a sparsely-furnished room. The Miranda warnings are given if they haven't been given already. 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. The future is made to look bleak for the suspect. Positive incentives are then usually turned to -- in an attempt to get the suspect to feel better if they confess. The whole process is a kind of mind twist in which the suspect becomes convinced that everything they thought wasn't so bad and offered them some good hope becomes the most evil and bad thing in the world, and that everything they thought was bad or looked down on - like snitching to the police - becomes the most good and beautiful thing on Earth.

The statements that suspects make to the police during an interrogation can be categorized as:

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 police need is information supporting the elements of the crime that other evidence does not support. You really need to know your Criminal Law, because some crimes require intent and others are more likely to emphasize actus reus. Burglary, for example, may seem like a straightforward prosecution if, say, you've got a security video showing the perp breaking into someplace, but the sixth element of a burglary offense requires felonious intent, and the only way to get this kind of information is through an interrogation. Other crimes, like white collar crimes, have elements which are more about feelings the perp might have had after commission of the offense, for example, whether they felt good about doing it, and covered it up, or whether they had guilt feelings, and regretted their actions. The suspect's statement is sometimes reduced to a question/answer statement, and sometimes it is a handwritten note, but most of the time, it has to be a neat, typewritten narrative which has no mysterious blank lines between sentences and paragraphs. What follows are some examples of a hard and soft confession for a typical street crime, followed by the more complex confession of a white collar crime:

SAMPLE HARD CONFESSION:	SAMPLE SOFT CONFESSION:
Date occurred: Time occurred: Location occurred: I, ___________ am ___ years of age and my address is _______________ with my phone being _____________ I left the bar at about midnight. I went out the back door and met Mr. Victim coming in. He bumped into me and we got into an argument. He picked up a piece of wood as if he was about to hit me, so I took out my gun and shot him. I think he was dead when I left. I have read this statement and affirm the truth and accuracy of the facts contained herein. Completed this day at _______________ on ___________. Witness: Witness: Person giving statement:	Date occurred: Time occurred: Location occurred: I, ___________ am ___ years of age and my address is _______________ with my phone being _____________ I left the bar at about midnight. I went out the back door and saw Mr. Victim standing there. He spoke to me and we got into an argument and exchanged angry words with one another. I left later, and I'm sure he was alive when I saw him last. I have read this statement and affirm the truth and accuracy of the facts contained herein. Completed this day at _______________ on ___________. Witness: Witness: Person giving statement:
SAMPLE WHITE COLLAR CRIME CONFESSION:
I, (subject's name and address) hereby make the following free and voluntary statement to (officer's official name and title) who has identified himself/herself as a (title of officer and name of department or agency). I have been advised that I have been interviewed concerning my involvement in (phrase describing scheme or nature of crime, such as "the misappropriation of funds in the amount of $100,000 from the First National Bank while I was employed there during 2003"). I was born on (subject's date of birth) at (subject's place of birth). I attended (last school attended, or all colleges attended) and completed (last grade or highest degree earned). I read and write the English language. (Officers should use the next few paragraphs to summarize what the subject did and how the subject did it, in his own words, but not exact own words. Because some recollection is involved in what the subject might have previously said, the officers can assist the subject in formulating this part of the statement. The important thing is that this part of the statement provide details regarding what happened to the money, how it was spent, and other items that make it unmistakably clear that this part of the statement contains facts that only the subject could have known about.) I knew that what I was doing was wrong, and I regret my actions. I wish to cooperate with the (name of agency) and its investigation and get this matter resolved. (An optional sentence can be added here, depending upon circumstances and subject's remorse) I have read this (number of pages) -page document, have initialed all corrections, and I am signing it because it is true and correct. (The subject writes this after reading the statement aloud and indicating their acceptance of it, often before a video camera) Subject's signature and date: First witness: Second witness:

The most common practical problem you're going to run into when taking a confession is the problem of multiple perpetrators to the same offense. Things get complex when you have co-defendants. You'll find that the statements of one perp tend to exaggerate the blame that the other perp is deserving of, and vice-versa. As a police officer, you really do not need to worry about this, as it's the prosecutor's job to deal with severance and joiner, as it's called. The totality of circumstances will determine each subject's role and resultant prosecution. The police job is to record as much as possible, and your personal interview notes can always contain your impressions of what you really think of all the finger-pointing. Besides, any good defense attorney is going to take exception to any mention of a co-defendant in a signed statement, and move to strike that part as prejudicial to their client. This doesn't restrict the utility of the confession in any way, but makes it look like a small victory for the defense.

The other problem you might run into is redaction, which refers to when somebody contradicts their confession on the witness stand. Someone "redacts" their confession at the discretion of the prosecutor, who is usually under orders from the judge, to "white out" or make certain parts of the statement disappear. This occurs primarily when the confession is too detailed, and certain pertinent facts (such as place and time) are found untrue. This also doesn't really damage the confession. Some police agencies, such as the FBI, will require two forms of the confession - one that is highly detailed and another which is not.

The law of confession is written in no one place. Sources include deep Anglo-American traditions, at least five separate reference points in the Constitution, a mixture of relevant federal and state statutes, and the administratively-created (non-Constitutionally binding) McNabb-Mallory Rule. Let's briefly go over these sources:

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.

Don't worry, you don't need to memorize all of the above cases, although they are the most important ones in this area of law. These and other rules boil down to the importance of police keeping their own separate notes about the interrogation. In what has come to be known as the INTERVIEW LOG, police keep their own records of place, identities, times (when interviews began and ended), when, where, and how the suspect waived their rights, and most importantly, a record of any and all questions or complaints that the subject had while in contact with interrogators, focusing upon if and when the subject requested food or drink, complained of a headache, hangover, or illness, seemed to be having mental problems or a confused state of mind, and especially what might have been said with regards to defense attorneys, prosecutors, judges, court systems, or punishments.

    It's arguably a privilege more than a right, but self-incrimination is an important justice concept. 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 Roman maxim "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:

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.

**INVASIVENESS STANDARD (*Schmerber* balancing test)**
Government's need for evidence must outweigh person's need for privacy or bodily integrity. Additionally: (1) Search warrant usually needed unless exigent circumstances (and this for mouth only) (2) Procedure is reasonable, medically sound, sanitary, done by a medical professional, and a routine, medical procedure	Person's need for privacy or bodily integrity outweighs the government's need for evidence. Additionally: (1) Must not endanger health (2) Must not cause severe pain or physical discomfort (3) Must avoid extreme humiliation or degrading (4) Must not produce lasting trauma

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

PRINTED RESOURCES
Baker, L. (1983). Miranda: Crime, Law and Politics. NY: Antheneum.
Brandt, C. (1991). The Right to Remain Silent. NY: St. Martin's.
Brooks, P. (2001). Troubling Confessions. Chicago: Univ. of Chicago Press.
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.
Manning, P. (1989). Symbolic Communication: Signifying Calls and the Police Response. Cambridge: MIT Press. [sample pages]
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.
Strentz, T. (2005). Psychological Aspects of Crisis Negotiation. Boca Raton, FL: CRC Press.
Weston, P. & C. Lushbaugh. (2003). Criminal Investigation. Upper Saddle River: Prentice Hall.
Zulawski, D. & D. Wicklander (1993). Practical Aspects of Interview and Interrogation. Boca Raton: CRC Press.

Last updated: Sept. 30, 2006
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T. (Date of Last Update at bottom of page). In Part of web cited (Windows name for file at top of browser), MegaLinks in Criminal Justice. Retrieved from http://www.apsu.edu/oconnort/rest of URL accessed on today's date.

SUSCEPTIBILITY:	ENVIRONMENT & METHODS USED:
Background of the suspect Intelligence of the suspect Education of the suspect Prior experience with system Physical condition of the suspect Mental condition of the suspect Coping skills	Location of the setting Length of the questioning Intensity of the questioning Frequency of the questioning Food & sleep deprivation Intimidating presence of officers