Confessions & Interrogations

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Confessions
Any statement of the defendant which the government desires to use at trial;

Not just admissions of guilt (lies too);

Usually introduced through the testimony of an agent who took the statement (or via recordings);
5th Amendment Issues - Intro
5th Amendment:
- Right to indictment by grand jury
- Prohibition against double jeopardy
- Right against compelled self-incrimination
- Right to due process

Due process violations:
- It is a violation of due process to use a statement obtained involuntarily or by using outrageous tactics (i.e., waterboarding)

Right against self-incrimination:
- You may not compel a person to testify against theirself
5th Amendment - Due Process Challenges - Involuntary Confessions
Involuntary confessions are inadmissible;

Voluntariness determined by:
- Totality of circumstances
- Suspect's characteristics such as age, physical condition, and mental state
- Environment - number of agents, visible weapons, nature of interview room, length of interrogation
- Special (coercive) police tactics - threats to subject or family, physical abuse
5th Amendment - Due Process Challenges - Outrageous Government Behavior
When police conduct is so outrageous a due process violation claim will be upheld even absent involuntariness;

Tricking someone into waiving rights;
5th Amendment - Self-Incrimination Challenges (Miranda)
A custodial interrogation is so inherently coercive that law enforcement must warn a subject of certain rights and either obtain a waiver of those rights or only conduct the interrogation with an attorney for the subject;

Constitutional violation - triggers the Exclusionary Rule for the statement itself, and, possibly, derivative evidence (Miranda protects against words ONLY);
5th Amendment - Self-Incrimination Challenges - What Miranda Requires
Before there is a custodial interrogation, without an attorney for the subject, law enforcement must both warn the subject of certain rights and obtain a waiver of those rights;

May not anticipatorily invoke right to attorney;

CUSTODY + INTERROGATION = WARNINGS + WAIVER
5th Amendment - Self-Incrimination Challenges - Custody
Arrest;

Significant deprivation of freedom:
- Would a reasonable innocent person believe he is either free to leave, or will be free to leave in a reasonable time
- Investigative detentions and traffic stops - not significant deprivations of freedom, no Miranda warning required; to determine if it is an investigative detention or an arrest you must look at the reasonable perspective of the detainee/arrestee
5th Amendment - Self-Incrimination Challenges - Interrogations
Express questioning about criminal activity;

Functional equivalent of interrogation:
- words or actions designed to get the subject to incriminate their self

Miranda applies to custodial interrogation regarding any crime, not just for the crime which produced the custody, not crime specific (differs from 6th Amendment, meant to deter LEO harassment);
5th Amendment - Self-Incrimination Challenges - Not Interrogation
Asking standard booking questions (name, where you live, etc.);

Cellmate informants/undercover officers (non-coercive atmosphere);

Passive techniques;

Exception to Miranda warnings:
- public safety questions
5th Amendment Issues
CUSTODY + INTERROGATION = WARNINGS + WAIVER;

Providing the warnings;
5th Amendment - Self-Incrimination Challenges - Waiver After the Miranda Warning
Government must show that waiver was:
- knowing - we informed subject of rights
- intelligent - the subject understood them
- voluntary - no coercion was used to obtain waiver

Subject's lawyer may not invoke rights for the subject;

Silence may not be interpreted as a waiver, however, if subject starts to talk after a warning the waiver is implied (subject must say they are not talking);
5th Amendment - Self-Incrimination Challenges - Waiver After the Miranda Warning (cont.)
Unclear response - ask clarifying questions;

Once rights are waived an equivocal comment can be ignored (must say "I want to speak with a lawyer" and not "should I speak with a lawyer?");

Best evidence of a proper waiver is a signature on the FD-395;
5th Amendment - Self-Incrimination Challenges - Invocation of Right to Silence
Must be affirmative;

Must stop questioning;

Do not ask if they want an attorney;
5th Amendment - Self-Incrimination Challenges - Post-Invocation Interrogation
Defendant initiates;

Wait a reasonable time (about 2 hours), re-advise, and ask if they still want to remain silent;
5th Amendment - Self-Incrimination Challenges - Invocation of Right to Attorney
Once an individual has requested an attorney there can be no further questioning without an attorney present;

Once the right to an attorney is invoked you may not question about any criminal activity as long as custody continues;
5th Amendment - Self-Incrimination Challenges - Invocation of Right to Attorney Post-Invocation
Defendant initiates;

Attorney present;

14 day break in custody (post-trial);
5th Amendment - Self-Incrimination Challenges - Providing the Warning Final Thoughts
- Insure subject can read and write
- Use FD-395 in the subject's language
- Get subject to initial each right listed on the form
- Ask subject if he understands rights
- Ask if he wants to remain silent, if he says yes, stop; if he says no, ask if he wants to speak to an attorney, if yes, stop; if no, have subject read and sign waiver and then question
- Keep interview log and incorporate into FD-302

Miranda is not "crime specific" - the warnings and waivers apply to questioning about any crimes, not just the one(s) for which the subject is in custody;
Documenting Statements
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