ARREST, INTERROGATION AND CONFESSION

    Police have a monopoly over the power of arrest since it is their responsibility to detect and apprehend criminals, to bring them to justice.  In America, the limits on arrest power include ensuring that each arrestee understands their Miranda rights, there is Probable Cause, and the arrest is documented, reviewed, and made public (Arrest Reporting).   Each police agency has its own type of arrest reporting, 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, information is 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), other computerized systems, teletype or fax machines.

    A distinction is sometimes made between a want (alarm) and warrant (alert), going back to the old common law practice of hue and cry, but 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 is 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.

    Gone are the days when police simply arrested somebody, and interrogated them to find incriminating evidence.  Modern police methods involve collecting evidence before arrest.  An arrest is, however, an 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, are the subjects of interrogation.

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. 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 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.

    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.  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. Ambush, concealment, and surprise are not to be 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 in order to give the defense an advance glimpse at the prosecution's case in order to encourage a plea of guilty. There are pros and cons on both sides of discovery issues.  Some of the worst abuses in criminal justice derive from these issues, such as breaches of confidentiality and less frequent charges of witness tampering.

    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.

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.  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 police need is information supporting the elements of the crime that other evidence does not support. The suspect's statement is usually reduced to a question/answer form or a narrative (and it can be handwritten), as follows:

THE HISTORY OF CONFESSION

    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:

• Anglo-American Traditions -- When trial by ordeal ended in the year 1215, Continental Law (the law of the continent of Europe) from the 13th-18th Century was based on the Law of Torture. England devised what was called the Bailey System (the same jury hears 12-20 trials a day), and it was remarkably similar to the Law of Torture (like the Salem witch trials), relying mostly on item #2 of the following rules for torture: (1) only people highly likely of guilt would be tortured; (2) the confession was admissible only if "clear as the noonday sun"; (3) if the confession was unclear, one witness was needed; (4) if the confession was recanted or appeared coerced, two witnesses were needed.

• Constitutional Reference Points -- The 4th Amendment-derived exclusionary rule applies to confessions (this area was one of the first to give us the institution of suppression hearings). The 5th Amendment privilege against self-incrimination (Miranda) applies, of course, but also, so does the 5th Amendment due process clause. The 6th Amendment right to counsel protection is relevant. Finally, 14th Amendment due process rights also apply.

• Federal and State Statutes -- This refers to a wide assortment of executive and legislative rules among the states on the civilized treatment of prisoners and detained suspects. Each state pretty much had its own methods until about 1944 when the Supreme Court laid down "civilized standards" in McNabb v. U.S., and even then, the states kept right on experimenting with variant rules. The Feds were of little help in terms of consistency since most of the modern federal agencies (DEA, for example) fought hard for special federal investigatory rules.

• McNabb-Mallory Rule -- This is a rule prohibiting the admissibility of a confession, even a voluntary one, if it was obtained during a period of unnecessary delay in bringing the suspect before a commissioner or official empowered to inform the suspect what the charges were before them. Since much of police power inherent with interrogation relies upon keeping the suspect guessing about what they're charged with, you can see the importance. It was never really enforced during the short time it lived from 1944-1968, and anyway, many states adopted per se rules not throwing out confessions obtained under delay. Today, it's a controversial subject in criminal justice, and you'll still find judges who believe in it.

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

INTERNET RESOURCES
CourtTV's Online Chat with Dr. Peter Brooks
Innocence Project's Cases of False Confessions
Prof. Kassin's Articles on the Psychology of Police Interrogation & Confession
The Evolution of Voluntariness Standards
Transcript of Dr. Richard Ofshe's Testimony

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.
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.
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: 06/25/03
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