**** The information written here is not legal advice and the author of this blog is not your lawyer. These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****
Any time someone voluntarily tells the police about his own involvement in an illegal act, it is a confession that can be used against him.[i] Telling police about tagging along with other people and watching while they committed a crime can be a confession to conspiracy. Casually talking to police can count as a confession even if the police are not asking questions about any particular crime. Admitting a crime to an officer in an undercover disguise can be a confession as well.
Notice that any of these examples could take place before or after being arrested and inside jail or out of police custody altogether. This is because the communications can be regarded as confessions whether or not police custody or arrest is involved.[ii] At least if they do take place while the confessor is under police control, there are some constitutional protections that might keep the confession from being used in a prosecution.
Almost everyone is familiar with the promise that police make on television, “you have the right to remain silent; anything you say can be used against you in a court of law. You have a right to an attorney; if you cannot afford an attorney, one will be appointed for you.” These promises are used in real life as well. They developed from the Supreme Court case of Miranda v. Arizona[iii] as ways of warning defendants of two constitutional rights: 1. the Fifth Amendment right not to incriminate ones self[iv] and 2. The Sixth Amendment right to have assistance of counsel while defending ones self in a criminal case.[v]
Although they are stated as soon as anyone is arrested on TV, these rights have to be stated in real life only before an interrogation begins or before the police establish a situation which they know is “reasonably likely to elicit an incriminating response.”[vi] Since several decades before these warnings were required, the Due Process clause of the Fourteenth Amendment[vii] has been used to protect criminal defendants whose confessions were forced by torment, teasing, or lying; those confessions cannot be considered believable because of the way they were coerced.[viii] Confessions obtained through fair and proper (due) processes are believable.
Comforting though it may be to know that three constitutional amendments are available for analyzing confessions, criminal defendants cannot forget the timing of when these amendments are useful. First, they exist as protections before a defendant confesses. A defendant who is able to remember that he does not have to be a witness against himself, that a confession cannot be forced from him, and that he has a right to have a lawyer with him during police questioning can avoid confessing altogether.
The second time when these amendments are helpful is long after a confession has taken place. It is past when the police have stopped investigating and have turned the case over to the prosecutor, after the charges have been filed, and when the criminal trial is about to begin. It is then that the defendant’s attorney argues that information gleaned from a forced confession should not be used as evidence against the defendant.[ix] By then, the confession may have been reported in the news and influenced potential jurors. Even if it hasn’t made the news, an illegally obtained confession is inadmissible evidence.[x]
[ii] William E. Ringel, SEARCHES AND SEIZURES, ARRESTS AND CONFESSIONS, (West, 2007) Chapter 27 “‘Custodial Interrogation'” Requirement of Miranda.” See also Chapter 25 “Voluntariness of Confessions and Admissions.”
[iv] U.S. Constitution Amendment V, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself…”
[v] U.S. Constitution Amendment VI, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
[vii] U.S. CONST. Amend. XIV “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law.”
[ix] A practical demonstration of how to make a case to keep a forced confession from being used as evidence is in 5 Am. Jur. Trials 331(1)(B), Excluding Illegally Obtained Evidence.(updated through February 2007). This source has sample questions to ask of witnesses, samples of documents to file in court, and demonstrations of how to prove various possible claims.
[x] Excluding forced confessions from evidence developed through a series of cases interpreting the Fifth Amendment’s protection against self incrimination. Here is a summary of that evolution http://supreme.lp.findlaw.com/constitution/amendment05/09.html.