Chapter 8 Admissions and Confessions

Criminal Evidence 6th Edition

Norman M. Garland

Confessions and Admissions

o Confessions and admissions frequently

overlap and it is sometimes difficult to decide if a statement is an admission or a confession.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Distinction Between a Confession and an Admission

o According to one court: o A confession is an admission of the crime

itself.

o An admission concerns only some specific

fact which, in turn, tends to establish guilt or some element of the offense.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

United States Supreme Court: Imposed Requirements on Law Enforcement Officers o The United States Supreme Court has

imposed requirements on law enforcement officers in connection with admissions and confessions stemming from Fourth, Fifth, Sixth, and Fourteenth Amendments.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Admissions

o Statements or acts by an accused before trial

that are not an acknowledgment of guilt, but do link the accused with a crime or are in some ways incriminating, are admissions.

o The accused need not intend to incriminate

himself or herself for the statement or act to be an admission.

o An admission may be a simple

acknowledgment of being at the crime scene, of being acquainted with the victim of a crime, or even a denial that the defendant was at the scene.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Acts as Admissions

o Acts are also classified as a form of

admission if they are inconsistent with an accused's innocence.

o Thus, acts such as trying to escape

detection and arrest, or to hide a crime, are admissions and may be introduced against the accused at a trial.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Admission by Silence or Accusatory Statements

o The defendant's silence in

circumstances where a person would normally speak out may be an admission.

o Whether or not this silence may be

introduced as an admission of guilt depends upon the conditions under which the silence occurred.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Implied Admission of Guilt or Adoptive Admission

o If a person makes a statement in front of

another, accusing him or her of committing a crime and no reply or denial is made, this is considered to be an implied admission of guilt or adoptive admission.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Statements by an Accused While in Police Custody

o A statement made by a person while in

police custody is usually not an adoptive admission because a person in custody is not required to say anything.

o Even if a suspect is not in custody, just

being in the presence of officers and under suspicion is enough to cause a reasonable person to remain silent in the face of an accusation.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

U.S. Supreme Court and Confessions

o In the twentieth century, the United

States Supreme Court developed the exclusionary rule and continues to develop complex and strict rules pertaining to the admissibility of confessions in evidence.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Free and Voluntary Confessions

o For a confession to have been freely and

voluntarily made, the person making the confession must have been in a position to exercise complete mental freedom at the time the confession was made.

o The courts have been strict in their

interpretation of what will affect this “complete mental freedom” and have ruled that pressure applied to induce a confession will be considered as an interference with mental freedom and cause the confession to be excluded from evidence at trial.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Test for Freely and Voluntarily

The requirement that the confession must be given freely and voluntarily satisfies two concerns of modern jurisprudence.

o First, unless the confession is so given,

there may be a doubt about the fundamental fairness of its use at trial against the accused.

o Second, unless it is given freely and

voluntarily, the accused’s right against self-incrimination may be violated.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Development of Additional Requirements: McNabb-Mallory Rule

o First, the high Court, developed a per se rule,

applicable only in the federal courts. This rule excluded potentially coerced confessions, by addressing the practice of detaining arrested persons in isolation for an extended period of time.

o Admissibility did not depend on whether the

confession was voluntary, but was based on whether an arrested suspect was brought before a committing magistrate for arraignment “without unnecessary delay” following the suspect's arrest.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Development of Additional Requirements

o The U.S. Supreme Court also extended

the basis for a finding of a coerced confession, from threatened and actual physical coercion to psychological coercion as well.

o In 1944, in Ashcraft v. Tennessee, the

Court held that 36 hours of continuous interrogation alone was enough to render the accused's confession coerced.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Escobedo v. Illinois

o In 1964, in Escobedo v. Illinois, the

Supreme Court found that a police interrogation of a suspect violated the Sixth Amendment right to counsel.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Massiah v. United States

o Also in 1964, the Court held in Massiah

v. United States that police interrogation (deliberate elicitation) of an indicted person in the absence of an attorney (or waiver by the accused) is a violation of the Sixth Amendment's right to counsel.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Miranda v. Arizona

Miranda requires the police to warn a suspect in custody:

o of his or her right to remain silent o that anything the suspect says might be

used in court against the suspect

o that the suspect has the right to have

counsel present during questioning

o that counsel will be appointed for the

suspect if the suspect cannot afford counsel

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Violation of Miranda

o In the absence of these Miranda

warnings and a waiver of the rights to remain silent and to counsel during police interrogation, any statement obtained by the police cannot be used against the accused at trial, even if the statement is not coerced.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Dickerson v. United States

o The Court in Dickerson confirmed that

the United States Constitution requires that Miranda procedures be followed by state and federal law enforcement professionals.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Confessions Excluded Due to Violation of Due Process of Law: Coerced Confessions

o A coerced confession could be

unreliable!

o Even if the confession is reliable, it

should be excluded from evidence because the police should “obey the law while enforcing the law.”

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Totality of the Circumstances

o Underlying all of the reasons for

excluding a coerced confession is the fundamental requirement that a confession must be freely and voluntarily given.

o The test for voluntariness, according to

the Supreme Court of the United States, is the totality of the circumstances.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Confessions Coerced by Psychological Pressure

o Overcoming the will of a suspect can

be achieved just as effectively by application of psychological pressure as it can by application of physical force.

o Psychological pressure, or “mental

stress,” takes many forms.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Spano v. New York

The confession was obtained in violation of the Due Process Clause of the Fourteenth Amendment based on a totality of the circumstances, particularly relying on four factors:

o The official pressure from a barrage of

questioning by several different people.

o The effect of denying Spano's requests to speak

with his attorney.

o The fatigue resulting from the interrogation's

length and time of night.

o The sympathy falsely created by Bruno. © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Exclusion of Confessions Due to Violation of Rights Secured under

Miranda v. Arizona

o Perhaps no legal decision

is more widely known by people in all walks of life than Miranda v. Arizona— the case that imposed the requirement that police give warnings to criminal suspects of their rights to remain silent and to have an attorney present during questioning.

Royalty-Free/CORBIS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Miranda Rule

o The Miranda rule requires that a law

enforcement officer read Miranda warnings to a suspect before custodial interrogation.

o The officer must advise the suspect that the

suspect has the right to remain silent, that anything the suspect says can and will be used against the suspect at trial, that the suspect has a right to an attorney being present during questioning, and that if the suspect cannot afford an attorney, one can be provided at no cost to the suspect.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Police Departments Issued Credit Card-Sized Miranda Cards

o Most police departments issue credit

card-sized Miranda cards that list the rights that must be read to and waived by the suspect before questioning may begin.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Translators Should Administer Warnings in the Language Other Than English

o In those situations where the officer is

faced with a suspect who either does not speak English or where English is a second language, a different problem is presented.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Miranda

o Today, the Miranda requirements apply to

custodial interrogations of suspects by law enforcement officers.

o When an officer has a suspect in custody and

engages in interrogation, the officer must inform the suspect of his or her Miranda rights, and the officer cannot interrogate the suspect unless he or she waives those rights.

o If the suspect invokes his or her rights at any

time, the officer must cease interrogation and scrupulously honor the rights the suspect asserts.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Relevant Topics for Discussion Relating to the Miranda Rules

o What is custody for purposes of Miranda? o What is interrogation for purposes of

Miranda?

o What constitutes a valid waiver of Miranda

rights?

o What constitutes a valid waiver after a

suspect has asserted his or her rights?

o What is the effect of the exclusionary rule on

statements taken in violation of Miranda?

o What are exceptions to the Miranda rule? © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

What Constitutes Custody for Purposes of Miranda?

o Custody results when a police officer

restrains a person in such a way consistent with formal arrest, regardless of the situation or intent of the officer.

o Anytime a person is taken into custody,

the officer is required to give Miranda warnings.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Custody + Questioning = Miranda + Waiver

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

What Constitutes Interrogation for Purposes of Miranda?

o When an officer has a suspect in

custody and specifically asks him or her direct questions about the incident under investigation, the officer is engaged in interrogation within the meaning of the Miranda rule.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

An Important Definition

o The Supreme Court stated that

interrogation as used in Miranda refers to “either express questioning or its functional equivalent.”

o Furthermore, the Court defined “functional

equivalent” as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

What Constitutes a Valid Waiver of Miranda Rights?

o In the Miranda decision, the Supreme

Court stated that the prosecution has a “heavy burden” of proof that any claimed waiver of rights by an accused was made voluntarily, knowingly, and intelligently.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

What Constitutes a Valid Waiver After a Suspect Asserts His or Her Rights?

o The Court stated that if a suspect, prior

to or during interrogation, indicates in any manner that “he wishes to remain silent, the interrogation must cease.”

o Likewise, the Court said that if an

individual says that “he wants an attorney, the interrogation must cease until an attorney is present.”

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Test for the Resumption of the Questioning

The Court established two separate rules governing resumption of questioning:

oOne to invoke the right to remain

silent

oOne to invoke the right to counsel © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Exceptions to the Miranda Rule

o Public safety exception o Routine booking questions exception o Undercover police questioner

exception

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

New York v. Quarles

o The public safety exception holds that

Miranda should not apply to a situation in which police officers ask questions reasonably prompted by a concern for the public safety.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Pennsylvania v. Muniz

o The Justices concluded that questions

posed to an arrestee during booking, such as those relating to name, address, weight, eye color, date of birth, and age are within a “routine booking question” exception, “which exempts from Miranda's coverage questions to secure the ‘biographical data necessary to complete booking or pretrial services.’”

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Illinois v. Perkins

o The Court held that “an undercover law

enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response.”

o The Court said that “[p]loys to mislead a

suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns.”

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Miranda, the Exclusionary Rule, and the Fruit of the Poisonous Tree Doctrine

o When there is a violation of any

constitutional provision relating to criminal procedure, the evidence gained as a result of such violation may be inadmissible at trial because of the exclusionary rule.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Michigan v. Tucker vs.

Dickerson v. United States

o Although the Miranda opinion discusses

the Fifth Amendment Privilege Against Self incrimination and the Sixth Amendment Right to Counsel, the case of Michigan v. Tucker developed the theory that a Miranda violation is not a constitutional violation.

o The Supreme Court in Dickerson (2000) is

inconsistent with the view expressed in Tucker. In Dickerson, the Court held that Miranda was a constitutional decision.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Fruit of the Poisonous Tree Doctrine Revisited

o When there is a violation of a

defendant's constitutional rights, in addition to the direct fruit of the violation being inadmissible, any evidence derived from the violation is also inadmissible under the fruit of the poisonous tree doctrine.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

What “the fruit of the poisonous

poisoned.

tree” means

o The theory of the fruit of the poisonous

tree doctrine is that if the root of the tree is poisoned, the fruit of the tree is also

o It is important to note that the case may

be dropped if, without the inadmissible evidence, the case against the accused is insufficient to support a conviction.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Not everything is inadmissible

o The U.S. Supreme Court has created an

impeachment exception to the rule that excludes statements taken by the police in violation of Miranda.

o If a defendant: 

takes the witness stand, and



testifies untruthfully, the prosecutor can use a statement obtained in violation of Miranda to impeach the defendant's testimony.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

United States v. Patane

o The Court in Patane (2004) found that

the introduction of non-testimonial evidence obtained as a result of voluntary statements does not violate a suspect’s Miranda right by negligent of non-deliberate failures to provide full Miranda warnings.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Exclusion of Confessions Due to Violation of the Sixth Amendment Right to Counsel

o The Supreme Court of the United States

has held that the right attaches only at a critical stage of a prosecution, which means when adversarial judicial proceedings have been initiated, “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Massiah v. United States

o The U.S. Supreme Court used the

exclusionary rule as a means of discouraging police misconduct in obtaining suspects’ incriminating statements.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Right to Counsel

o The right to counsel is one of the

guarantees of the Sixth Amendment to the United States Constitution.

o This fundamental right applies to the

states through the Due Process Clause of the Fourteenth Amendment.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

When the Right to Counsel Rule Applies

o The Sixth Amendment right to counsel

attaches when adversary judicial proceedings have commenced in a criminal case.

o When the accused has obtained and

has actually met with counsel, police conduct amounting to deliberate elicitation of incriminating statements from the accused violates the accused’s right to counsel.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

What Constitutes Deliberate Elicitation Versus Interrogation

Deliberate elicitation occurs when the law enforcement officer acts:

owith the purpose of eliciting oan incriminating response ofrom a suspect oafter counsel has been obtained or othe adversarial proceeding has begun © 2011 The McGraw-Hill Companies, Inc. All rights reserved.

How an Accused Can Waive the Right to Counsel

o A waiver of the right to counsel is

possible in all situations where the accused is informed of the right and makes a voluntary, knowing, and intelligent waiver of that right.

o These principles were established in the

1938 Supreme Court decision of

Johnson v. Zerbst.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Confession Given After an Unlawful Search and Seizure May Be Excluded

o The exclusionary rule and the fruit of the

poisonous tree doctrine both apply to the products of an unlawful search or seizure.

o Therefore, if a person, subjected to an

unlawful search and seizure, makes incriminating statements, those statements are inadmissible under the exclusionary rule.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Procedure for Introduction of Confessions

o A confession is usually introduced

through the testimony of the officer to whom it was made.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Orthodox Procedure

o The trial judge decides if, given the

circumstances, the confession is voluntary.

o If it is, the confession is introduced into

evidence and the judge instructs the jury to consider the confession along with all the other evidence presented.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Massachusetts Procedure

o Under the Massachusetts procedure, if the

judge decides that the confession is voluntary, the judge instructs the jury on the definition of voluntariness and instructs the jury to consider the confession as evidence only if it finds that the confession was voluntary.

o In other words, under the Massachusetts rule,

the defendant gets two bites at the apple; if the judge allows the confession, then the issue may be presented to the jury for its consideration as well.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Confessions: Simple or Complex All Sizes, Flavors, and Issues

o The confession may be a simple

statement on the part of an individual. The accused may merely state: “I killed Molly Brown with a hatchet.”

o The confession may be a lengthy

acknowledgment in which the accused relates in detail every phase of the crime.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

A Sample Preamble

“I, (the name of the accused), make this voluntary statement to officer (name of officer or officers conducting the interrogation). I make this statement without threats or promises being made to me. I have been advised of my right to remain silent. I have also been advised of my right to consult an attorney, and to have that attorney present during the time that I am being questioned by the officer.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

A Sample Preamble

I was also advised that if I could not afford an attorney, one would be provided for me free of charge. I was advised that if I did say anything, it could be used against me in court. I wish to state that I understand my right to remain silent and my right to an attorney, but I waive these rights and wish to make the following statements to (officer's name).”

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

The Confession

o May be in question-and-answer form

which is better as it more truly reflects exact statements of the accused.

o May be a narrative form of statement

which is a summary of the facts as related by the accused which has the difficulty that it is frequently in the words of the officer, not the accused.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Concluding the Confession

A statement, in the accused’s own handwriting, is suggested to conclude the confession.

oSample: “I have read the following

statement consisting of (number) pages, and it is true and correct to the best of my knowledge and belief.”

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Confession Implicating a Co-defendant

o Officers frequently encounter a situation

where a crime is committed by two or more defendants and one defendant confesses to the crime, implicating the other, while the other defendant refuses to make any statement, much less to confess.

o In this situation, the principle of limited

admissibility, which would ordinarily solve the problem, will not work.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Limited Admissibility

o Limited admissibility allows evidence

admissible for one purpose but inadmissible for another purpose to be introduced for the allowable purpose.

o Limited admissibility is a concept that is

followed in all jurisdictions.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Proof of the Crime in Addition to a Confession: The Requirement of

Corpus Delicti

o It is generally conceded in the United

States that a person cannot be convicted of a crime upon a confession alone.

o There must be some proof of the crime

in addition to the acknowledgment of guilt by the accused, some outside proof of the corpus delicti, that is, proof that a crime has been committed.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.