THE LAW OF CONFESSIONS

The law of confessions doesn't exist in any one place. It is a conglomeration of Constitutional Law, Federal and State statutes (legislative law), and Anglo-American tradition. This is usually expressed as the five (5) hurdles that a confession must pass in order to be considered valid:

SOURCES OF THE LAW OF CONFESSIONS

• 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 sometimes is taken to imply a positive freedom of choice.

Compare this 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.

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:

INTERNET RESOURCES:
Interrogation Tactics

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.
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.
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: 06/25/03
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