Interrogations and Confessions

1. Interrogations and Confessions FIFTH AMENDMENT No person shall be … compelled in any criminal case to be a witness against himself.

2. Interrogations and Confessions Constitutional Implications 4th = Exclusionary rule 5th = Privilege against self incrimination 6th = Right to Counsel 5th = Federal Due Process 14th = State Due Process

3. Confessions • Need to Voluntary • So that they can be considered trustworthy • Incriminating statements elicited during consensual investigative techniques are always admissible

4. Three Phases of a Criminal Case • Investigative Questioning • Custodial Interrogation • Prosecutorial

5. Torture • Violates the “Free & Voluntary Rule” • Confessions or inculpatory statements obtained by law enforcement by coercion in violation of the “free & voluntary rule” will be suppressed to: • Protect against convictions using unreliable evidence • Preserve the suspects freedom of choice • Deter PO from intolerable interrogation tactics

6. Two Part “Voluntary Test” • Part One = Source of Pressure (Has the government exerted pressure sufficient to exclude voluntariness) • Beatings & guns to the head are coercive and not voluntary • Part Two = What impact did this pressure have on the suspect

7. Less Coercive Means • Necessitate and examination of the totality of the circumstances • Pressure exerted by the police • Suspects degree of susceptibility • Conditions in which the interrogation took place

8. The Ultimate Coercive Interrogation

9. Pressure exerted by the police • Torture, beatings, and the gun to the head are inherently coercive and are not allowed Coercion Can Also Include • Threats • False Promises • Trickery • Deceit • Psychological Coercion • Angry Lynch Mob • Arresting Innocent Members of the Suspects Family • Taking Children Away • Promising Confession Will Prevent Prosecution • Promising Leniency when PO is unable to affect outcome • PO is allowed to make truthful representations about suspects legal predicament • PO can tell suspect his cooperation will be mentioned to the prosecutor • PO can tell suspect he will encourage the prosecutor to be lenient CONFESSIONS MUST BE PROVEN VOLUNTARY BY A PREPONDERANCE OF THE EVIDENCE

10. Suspects Degree of Susceptibility

11. Conditions Under Which the Interrogation Took Place

12. 4th Amendment Exclusionary Rule • If Search is Unconstitutional • If Arrest is Unconstitutional • If Investigative Stop is Unconstitutional Then confession is excluded and any evidence which is “fruit of the poisonous tree” will be excluded

13. Compulsory Self Incrimination No person … shall be compelled in any criminal case to be a witness against himself • Testimonial evidence is controlled by the 5th Amendment The right of the people to be secure in their persons … against unreasonable searches … shall not be violated • Physical Evidence is controlled by the 4th Amendment and is frequently admissible against the interests of an arrestee/defendant

14. 4th Amendment Protection Against Unreasonable Searches Self Incrimination Three areas which could impact a court’s finding that evidence seized from an arrestees person or physical appearance was obtained in an unreasonable manner • Bodily movement • An arrest must be constitutional • Bodily privacy • Thing to be seized in search must be publicly viewable, cannot view naked body for evidence • Body Integrity – Blood • What was the reason for initial seizure or any additional seizures

15. Testimonial Self Incrimination • Perjury v. Contempt • Also applicable outside of a court room in police interrogations • Right to remain silent • Privilege against answering self incriminating questions • Individuals have the right ANYWHERE not to answer questions that would tend to incriminate

16. Grand Jury • You are compelled to appear under penalty of contempt • Any question which might have a tendency to incriminate you do not have to answer

17. Testimonial Self Incrimination • Does not extend to that which was made voluntarily before criminal activity became apparent • Journals • Writing • Records • Subpoena Deuces Tecum • Used to compel the production of certain items • Challengeable because production could eventually lead to evidence of crime.

18. Compelling Testimonial Evidence • Must create a risk of being convicted of a crime. • Already tried for the crime convicted or acquitted • Absolute or Transactional Immunity • “Use” immunity • Binding on State and Federal prosecutions

19. Invoking 5th Amendment Right • Defendant's decision not to testify is final and cannot be used against him/her • Taking the witness stand revokes the privilege • Jury cannot be told defendant invoked the privilege • 5th Amendment Privilege does not extend to other types of proceedings

20. Appearance and Body Evidence • Exposed to public scrutiny • Handwriting • Photos • Fingerprints • Voice Samples • Field Sobriety Tests • Evidence not seized in a reasonable manner • Naked body • Blood samples • Surgically removed bullet • DNA samples

21. Compulsory Production of Appearance Evidence • During Terry Stop • Transport a short distance for show-up • Never to police station • Fingerprints and/or photo’s OK • Illegal arrest taints appearance evidence

22. Intrusive Body Searches What is reasonableness for 4th Amendment Searches below a suspects skin surface • Government need for evidence exceeds the intrusive nature into suspects privacy or bodily integrity • Clear indication desired evidence will be found • Search warrant or exigent circumstances • Procedure to retrieve Evidence is reasonable and the procedure is performed in a reasonable manner

23. SW Requirement • Penetrating the body’s surface • Saliva, urine, semen or pubic hair samples • Other bodily tissue or fluids • Manually inspecting rectal or genital cavities • Anything which would cause sever pain or discomfort • Rick to health • Intensive humiliation

24. Exigent Circumstances • Blood, breath or urine samples in DUI cases • Gunshot residue test • Reaching into mouth (“mouth is not a sacred orifice”) • Stomach pumping is OK if less intrusive means are not available • Strip Searches and body cavity searches must be based on the reasonable suspicion that search will produce drugs, weapons, or contraband (In Illinois controlled by Statute)