Self-Incrimination Notes
Dickerson v. U.S. (2000)
SCOTUS ruled that Congress could not overrule Miranda v. Arizona (1966).
Congress had attempted to do so in 1968 with legislation stating officers didn't have to warn suspects of their rights before interrogation.
Federal and state officials ignored the 1968 law until 1997 when a Virginia federal court admitted Charles Dickerson's confession obtained after defective Miranda warnings.
Chapter Overview: Topics to Be Discussed
The nature and role of confessions.
Self-incrimination and the U.S. Constitution.
Miranda v. Arizona.
Waiver of the right to remain silent.
False confessions.
The Nature and Role of Confessions
Confessions are suspects' written or oral acknowledgments of guilt, often including crime details.
Confessions have an ambivalent role; they are the proof that justifies blame and punishment but can also be dangerous and misleading.
Confessions create access to defendants' innermost beliefs, knowledge, and thinking, making them uniquely powerful evidence of guilt.
There is heavy reliance on confessions coupled with extensive regulation of their use.
Incriminating statements refers to statements that fall short of full confessions.
Four Settings Where Defendants Confess or Make Incriminating Statements:
Confessions to friends and associates, who report the statements to officials.
These confessions can be used against those who make them, with an exception related to the right to counsel.
Pleading guilty to crimes.
Defendants who plead guilty automatically give up their right against self-incrimination.
These are the most common confessions in the criminal justice system.
Incriminating themselves during the sentencing process, often to show remorse.
Incriminating themselves during police interrogation after arrest.
Most of the chapter is devoted to this setting.
The Self-Incrimination Setting
Miranda is part of culture and culture "wars."
The popular portrayal of saintly cops and satanic criminals hid the complexity of self-incrimination in practice where it most frequently occurs, during police interrogations and resulting confessions.
The atmosphere in police stations is strange, intimidating, and hostile to criminal suspects; this is not like being stopped and asked questions in public places.
Suspects are searched thoroughly and interrogated incommunicado in police stations.
This is supposed to flush out the truth about suspects' possible criminal behavior.
By the time officers bring arrested suspects to police stations, their investigation has focused on those particular suspects.
This period is called the accusatory stage of the criminal process.
During this stage, balancing the criminal procedure ideals of effective law enforcement against individual privacy and liberty carries higher stakes for both suspects and law enforcement.
Hypothetical Situations
Scenario 1: A police officer asks a man on the street, "What are you doing out at 1:30 a.m.?" The man replies, "I'm trying to buy some crystal meth, as if it's any of your business."
Scenario 2: An officer hears screams from an apartment, enters without knocking, and asks, "What's going on here?" A woman answers, "I just beat up my baby."
Scenario 3: An elderly woman is beaten by muggers and dies. Officers question an 18-year-old suspect for six hours without a break, using tough tactics and befriending him. The young man confesses.
Scenario 4: An officer promises a suspect lenient charges for confessing to rape. The suspect confesses in writing.
Scenario 5: An officer lies to a suspect, claiming a neighbor witnessed the crime. The suspect makes an incriminating statement.
The Importance of Confessions and Interrogation
Justice Felix Frankfurter believed police interrogation and confessions were necessary.
Offenses frequently occur about which things cannot be made to speak and where there cannot be found innocent human witnesses to such offenses; nothing remains but to seek out possible guilty witnesses and ask them questions.
Fred Inbau supported Frankfurter's position:
Police can't solve many crimes unless guilty people confess, or suspects give police information that can convict someone else who's guilty.
Criminals don't confess unless the police either catch them in the act or interrogate them in private.
Police have to use "less refined methods" when they interrogate suspects than are "appropriate for the transaction of ordinary, every-day affairs by and between law-abiding citizens."
SCOTUS Chief Justice Earl Warren explained why: "Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation room."
Secure the confessions of guilty people, and do not believe and admit the false confessions of innocent people.
The Constitution and Self-Incrimination
The right to remain silent has ancient religious and legal origins, including the ancient Talmudic law.
Jesus stood and "answered them nothing."
The origin of the right to remain silent is tied to the common-law rule that confessions had to be voluntary
SCOTUS has relied on three provisions in the U.S. Constitution to develop rules to control police interrogation and confessions:
Fourteenth Amendment due process clause: "No state shall… deprive any person of life, liberty, or property without due process of law."
Sixth Amendment right-to-counsel clause: "In all criminal prosecutions, the accused shall… have the assistance of counsel for his defense."
Fifth Amendment self-incrimination clause: "No person… shall be compelled in any criminal case to be a witness against himself."
The Due Process Approach
In Brown v. Mississippi (1936), SCOTUS relied on the Fourteenth Amendment due process clause to interrogate confessions extracted by torture.
The confessions have to be voluntary.
Three rationales support the voluntary approach:
First, involuntary confessions violate due process, not because they're "compelled," but because they're not reliable (meaning they might be false).
Second rationale for reviewing state confession cases: the accusatory system rationale, according to which forced confessions violate due process even if they're true, because under our system the government alone has the burden of proving guilt beyond a reasonable doubt. (Rogers v Richmond (1961))
The free will rationale: involuntary confessions aren't just unreliable and contrary to the accusatory system of justice; they're also coerced if they're not "the product of a rational intellect and a free will" (Townsend v. Sain (1963)).
The Right-to-Counsel Approach
In Crooker v. California (1958), despite police denying a lawyer, SCOTUS affirmed Crooker's conviction, but dissenting justices called custodial interrogation a critical stage in criminal prosecutions.
In 1964, in Escobedo v. Illinois (1964), SCOTUS turned to the Sixth Amendment right-to-counsel clause as the basis for reviewing state confessions cases according to which, as soon as a police investigation focuses on a particular suspect, criminal prosecution begins and the right to counsel attaches.
The Self-Incrimination Approach
The due process, right-to-counsel, and self-incrimination approaches are all still applied in combination to decide cases.
SCOTUS relies on the Fifth Amendment self-incrimination clause to decide whether a custodial interrogation before formal charges was inherently coercive to decide whether a custodial interrogation before formal charges was coercive.
To decide whether coercion was used after formal charges, the Court relies on the Sixth Amendment right to counsel.
To review whether suspects and defendants have knowingly and voluntarily made incriminating statements whenever they take place, SCOTUS relies on the Fourteenth Amendment due process clause.
To claim successfully that their Fifth Amendment right against self-incrimination was violated, defendants have to prove three elements:
Compulsion. "No person… shall be compelled …"
Incrimination. "… in any criminal case"
Testimony. "… to be a witness against himself"
The Meaning of "Witness against Himself"
The government can't force you to give testimony (the content of what you say and write) against yourself.
Content doesn't include the voice that spoke the words, so the government can compel you to speak particular words that might help a witness identify your voice.
In Schmerber v. California (1966), SCOTUS decided that taking blood alcohol samples from Armando Schmerber against his will didn't compel him to be a witness against himself.
The Meaning of "Compelled"
According to the voluntariness test of self-incrimination, confessions, and other incriminating statements violate due process if the totality of circumstances surrounding the statements shows that suspects didn't confess voluntarily.
In 1966, a combination of three factors produced one of the most famous decisions in U.S. constitutional history-Miranda v. Arizona:
Uneasiness about tactics used against suspects in the intimidating atmosphere of police stations.
Dissatisfaction with the vagueness of the totality-of-circumstances approach.
Impatience with the case-by-case approach to deciding whether confessions were voluntarily given and gotten.
Miranda v. Arizona
In Miranda v. Arizona (1966), custodial interrogation is "inherently coercive".
Miranda v. Arizona Case Facts:
Ernesto Miranda was arrested and taken into custody to a Phoenix police station where he was identified by the complaining witness, after which he was questioned by two police officers.
Miranda was not advised he had a right to have an attorney present.
Two hours later, the officers emerged from the interrogation room with a written confession signed by Miranda.
At the top of the statement was a typed paragraph stating the confession was made voluntarily, without threats or promises of immunity and "with full knowledge of my legal rights."
One of the officers testified he read this paragraph to Miranda; however, he did not do so until after Miranda had confessed orally.
At his trial before a jury, the written confession was admitted into evidence over the objection of defense counsel, and the officers testified to the prior oral confession made by Miranda during the interrogation.
Miranda was found guilty of kidnapping and rape.
On appeal, the Supreme Court of Arizona held that Miranda's constitutional rights were not violated in obtaining the confession and affirmed the conviction because Miranda did not specifically request counsel.
Key Aspects from Majority Opinion in Miranda v. Arizona
Without proper safeguards, in-custody interrogation contains inherently compelling pressures.
Required warnings prior to custodial interrogation:
Right to remain silent.
Anything said can and will be used against the individual in court.
Right to consult with a lawyer and to have the lawyer with him during interrogation.
If indigent, a lawyer will be appointed to represent him.
If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.
If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.
If the interrogation continues without an attorney, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.
Any statement given freely and voluntarily without any compelling influences is admissible in evidence.
The Miranda "Bright-Line" Rules
Whenever police officers conduct a custodial interrogation, they have to give suspects these four notifications:
You have a right to remain silent.
Anything you say can and will be used against you in court.
You have a right to a lawyer.
If you can't afford a lawyer, one will be appointed for you.
Created five more bright-line rules for the interrogating officer, prosecutors, and judges, but police officers don't have to tell suspects about these rules:
Suspects can claim their right to remain silent at any time. If at any time they indicate in any way they don't want to talk, the interrogation has to stop immediately.
If, before interrogation begins, suspects indicate in any manner they want a lawyer, interrogation can't start; if it has started already, it has to stop immediately.
Any statement obtained without a lawyer present puts a "heavy burden" on the prosecution to prove defendants waived two constitutional rights: the right against self-incrimination and the right to a lawyer.
Statements obtained in violation of the rules can't be admitted into evidence.
Exercising the right against self-incrimination can't be penalized, so prosecutors can't suggest or even hint at trial that the defendant's refusal to talk is a sign of guilt.
Situations That Allow Questioning without Miranda Warnings
Questioning people at crime scenes
Questioning people before they become suspects
Questioning people during Fourth Amendment stops
The Meaning of "Custody"
SCOTUS defined custody as being held by the police in a police station or depriving an individual of "freedom of action in any significant way."
Whether suspects are in custody depends on a case-by-case evaluation of the totality of circumstances surrounding the interrogation.
Three Types of Detentions That Don't Qualify as Being in Custody
1. Detaining drivers and passengers during routine traffic stops (Berkemer v. McCarty 1984)
2. Requiring probationers to attend routine meetings with their probation officers (Minnesota v. Murphy 1984)
3. Detaining persons during the execution of search warrants (Michigan v. Summers 1981)
Case: Berkemer, Sheriff of Franklin County v. McCarty (1984) Holding
Brief questioning during a traffic stop was not a "custodial interrogation."
To assess the admissibility of self-incriminating statements made by McCarty prior to his formal arrest, we are obliged to decide whether the roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered "custodial interrogation."
The safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a "degree associated with formal arrest."
Motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him "in custody" for practical purposes; he will be entitled to the full panoply of protections prescribed by Miranda.
The Public Safety Exception (PSE)
The public safety exception (PSE) applies to police officers who question suspects in custody without first administering the Miranda warnings. Incriminating statements, and any evidence derived from the unwarned statements, are admissible at defendants' trials whenever trial judges believe the purpose of the questioning is to protect public safety.
Case: New York v. Benjamin Quarles Ruling in Summary: The public safety trumped Quarles's Miranda rights.
The Meaning of "Interrogation"
Testing to Determine Whether Police Questioning Amounts to Interrogation
The Fifth Amendment “Functional Equivalent of a Question” Test
The Sixth Amendment "Deliberately Eliciting a Response" Test
The Fifth Amendment "functional equivalent of a question" test
"Interrogation" under Miranda refers not only to express questioning but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.
The Sixth Amendment "Deliberately Eliciting a Response" Test
The test for interrogation after formal charges, called the "deliberately eliciting a response" test, focuses squarely on police intent (Massiah v. U.S. (1964)).
The Waiver of the Right to Remain Silent
Most defendants waived their rights and talked to the police anyway.
"Giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility".
Questions about Waiver
What is a valid waiver of the right against self-incrimination?
What is a voluntary confession? Cases in Which Courts Found a Knowing Waiver
No evidence showed the suspect was threatened, tricked, or cajoled.
The suspect invoked the right to counsel and then, after a five-hour ride in the back of a squad car, signed a waiver when police officers asked "if there was anything he would like to tell them."
The suspect asked for a lawyer, didn't get one, and then signed a waiver after repeated warnings and "nagging" by police officers.
After refusing to sign an express waiver, the defendant talked to the police.
The defendant said "I don't got nothing to say" when he was presented with a waiver form but then answered questions during an interview that followed.
The defendant remained silent throughout most of nearly three hours of questioning after being advised of his Miranda rights, but he responded "Yes" when asked if he prayed for forgiveness for killing the victim. (Berghuis v. Thompkins 2010)
Holding: Criminal suspects who want to protect their right to remain silent have to speak up and unambiguously invoke it.
Elements of a Voluntary Confession
Confessions are involuntary only if the totality of the circumstances proves two things:
Officers engaged in coercive conduct during the interrogation.
The coercive conduct caused the suspect to make incriminating statements.
Voluntary Self-Incrimination
Voluntariness depends on free will.
Coerced by a Private Person (State v. Bowe Ruling in Summary)
The coercive conduct of Coach Wallace, a private person, was sufficient to render Bowe's confession inadmissible.
False Confessions: Popular Belief and Empirical Evidence
Researchers divide proven false confessions into three categories:
Voluntary False Confessions: confession without police prompting or pressure.
Compliant False Confessions: made to escape a stressful custodial situation.
Suspects know they are confessing something they didn't do but decide that the immediate benefits of confession outweigh the long-term costs