POLICE INTERROGATION AND CONFESSIONS (Update 2)

Three constitutional law doctrines may make a confession of a crime inadmissible in court. First, it may violate due process of law for the prosecution to use a defendant's involuntary confession against him. In determining whether a confession is involuntary, a court ordinarily considers the totality of the circumstances, including the environment and techniques of police interrogation and the interrogee's special characteristics of strength or weakness. A court may also consider the need for interrogation in the particular case. If the suspect refuses to speak or demands to see a lawyer, the police need not stop the interrogation. Police persistence will be a relevant point against admissibility, but not necessarily a determinative one. The inherent vagueness of the involuntariness doctrine has made it hard for courts to be consistent. The vagueness of the involuntariness rule has also made it possible for courts to hold confessions admissible even though obtained by significant police pressure.

Second, admission of an incriminating statement into evidence may also violate the Sixth Amendment right to counsel if the prosecution uses a statement that the police or their agents have deliberately elicited from a suspect, after the onset of adversary judicial proceedings, without first obtaining a valid waiver of the right to counsel. This doctrine affords suspects no protection in the vast majority of cases since police interrogation ordinarily occurs before any judicial proceeding has taken place.

The third relevant doctrine is found in the miranda rules, which were developed to protect the Fifth Amendment right against self-incrimination. These rules make inadmissible any incriminating statements obtained by police interrogation of a person in custody unless the police have first given a proper Miranda warning and obtained a valid waiver of both the right against self-incrimination and the right to counsel. If the suspect asserts the right against self-incrimination, the police must disengage from the interrogation. However, the police may later reengage the suspect for the purpose of soliciting a waiver. If the suspect asserts the right to counsel, the police must also disengage. However, the police may not later solicit a waiver unless the suspect has first initiated some case-related communication with the police. Miranda is thus more protective of the suspect than the involuntariness rule, which does not require the police to disengage or take no for an answer.

Must the police disengage if the suspect makes an ambiguous reference to counsel (e.g., "Maybe I should talk to a lawyer.")? In Davis v. United States (1994), the Supreme Court unanimously held that disengagement was not required. Five justices additionally held that the police were under no obligation to clarify the ambiguity and could immediately proceed with the interrogation. This holding continues the long-standing denigration of Miranda, weakens its protectiveness, and thus throws more cases into the uncertain coverage of the involuntariness rule.

Lawrence Herman
(2000)

Bibliography

Herman, Lawrence 1987 The Supreme Court, The Attorney General, and the Good Old Days of Police Interrogation. Ohio State Law Journal 48:733–755.

——1992 The Unexplored Relationship Between the Privilege Against Compulsory Self-Incrimination and the Involuntary Confession Rule (Parts I and II). Ohio State Law Journal 53:101–209, 497–553.

Leo, Richard A. and Thomas, George C., III 1998 The Miranda Debate: Law, Justice, and Policing. Boston: Northeastern University Press.