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Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-1 © 2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 The.

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Presentation on theme: "Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-1 © 2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 The."— Presentation transcript:

1 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-1 © 2007 Pearson Education, Inc. Upper Saddle River, NJ The Interrogation Process and the Law Chapter 10

2 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ The United States The fundamental principle on which the United States’ legal system rests is the idea that law is created by the people for the purpose of protecting citizens against tyranny and lawlessness, and to protect freedom

3 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Rule of Law Those that execute the law must rely on the application of known principles or laws, and those principles must be applied uniformly and fairly to all citizens Also referred to as the supremacy of law

4 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Confession Admissibility The four prong test for the admissibility of a confession is contained in the Fourth, Fifth, Sixth, and Fourteenth Amendments

5 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Fifth Amendment of the United States Constitution 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 offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

6 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Fifth Amendment Protections The Fifth Amendment provides protection from a person being incriminated by compelled testimonial communication Compel means to cause or bring about by force, threats, or overwhelming pressure Testimonial is a communication that explicitly or implicitly relates or discloses information that is the expression of the person

7 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Fifth Amendment Considerations  The protection against self- incrimination also permits a person to refuse to testify against himself or herself at a criminal trial in which they are a defendant

8 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ What is not Covered by the Fifth Amendment Requiring a person in custody to stand or walk in a police lineup, to speak prescribed words, to model particular clothing, or to give samples of handwriting, fingerprints, or blood does not compel him to incriminate himself within the meaning of the clause (Schmerber v. California, 1966).

9 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Totality of the Circumstances Test The totality of the circumstances test is one where the court focuses on all of the circumstances surrounding a situation, rather than any one factor The court will typically look at all of the physical or psychological pressures to determine if they unduly influence the accused to make a statement

10 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Miranda Rights These procedural safeguards must be stated prior to questioning:  The person must be warned that he has a right to remain silent,  That any statement he does make may be used as evidence against him,  And, that he has a right to the presence of an attorney.  If he cannot afford an attorney, counsel will be provided at government expense

11 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ When are Miranda Warnings Required? Miranda warnings or their equivalent must be given prior to questioning (direct or indirect)  These rights do NOT have to be provided verbatim (word for word) Which is initiated by a state actor And, that person has been taken into police custody or otherwise deprived of his freedom of action by the police in any significant way

12 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ When is a Waiver of Miranda Rights Valid? There are three measures of whether the individual has properly waived his or her right to remain silent The waiver must be made voluntarily The waiver must be made knowingly The waiver must be made intelligently

13 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ The Voluntary Requirement The Miranda waiver must be made voluntarily  The government must prove that the waiver was not the result of coercion or other factors which adversely influenced the defendant’s exercise of free will  Torture, threats, promises of leniency, or other inducements may affect the voluntariness of a waiver  If the person is intoxicated to the point that he cannot understand his constitutional rights, the waiver is not valid

14 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ The Knowing Requirement The Miranda waiver must be made knowingly  The government must prove that the defendant knew and understood his rights  Providing Miranda rights to a person who does not speak English, for example, cannot result in a knowing waiver of those rights  If the defendant is suffering from mental disability that renders him incapable of understanding, a waiver may not be valid

15 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ The Intelligence Requirement The Miranda waiver must be made intelligently  The government must establish that the defendant intelligently relinquished those rights, that he understood he was agreeing to answer questions  This does not suggest that the suspect is intelligent or has any particular IQ in order to make an intelligent waiver of his rights

16 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Some Exceptions to the Miranda Requirement Voluntary Statements Statements initiated voluntarily by the defendant when there is no interrogation DO NOT require Miranda Rights regardless of whether the suspect is in custody or not

17 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Some Exceptions to the Miranda Requirement Public Safety Exception In situations where there is immediate or impending danger to the public safety, police may arrest a suspect and ask questions to elicit information to remove the threat to the public WITHOUT providing Miranda Rights

18 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Right to Counsel Under Miranda If a suspect is in custody and subjected to interrogation requests an attorney ALL QUESTIONING MUST STOP IMMEDIATELY! The waiver for an attorney under Miranda must also be made voluntarily, knowingly, and intelligently

19 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Sixth Amendment of the U.S. Constitution 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.

20 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ The Right to Counsel: the Sixth Amendment A person who has been formally charged with a crime CANNOT be interrogated for that crime without an attorney present, whether they are in custody or seen on the street This right attaches: Through a formal charge in court A preliminary hearing An indictment An information An arraignment

21 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Fourteenth Amendment of the U.S. Constitution Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.

22 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Fourteenth Amendment Interrogation Application Through the Fourteenth Amendment the rules that are constitutionally required apply equally to both Federal and State police action through the Due Process Clause

23 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ What is the Exclusionary Rule? It requires that evidence obtained by police in violation of the Fourteenth Amendment’s due process clause, the Sixth Amendment’s right to counsel provision, the Fifth Amendment’s privilege against self-incrimination or the Fourth Amendment’s protection from illegal search and seizure would be excluded from use in trial against the defendant.

24 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ The Exclusionary Rule is Born Weeks v. U.S., 1914  The United States Supreme Court first stated that evidence secured through illegal search and seizure and in violation of the Fourth Amendment would be barred from use in federal prosecutions

25 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ The Exclusionary Rule is Applied to the States Mapp v. Ohio, 1961  The United States Supreme Court made the Exclusionary Rule applicable to the states through the Fourteenth Amendment’s Due Process Clause

26 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ What is the Fruit of the Poisonous Tree Doctrine? The illegal search or interrogation taints the evidence obtained, as well as facts discovered by the processes initiated by the unlawful procedure and that evidence must be also excluded!

27 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Fruit of the Poisonous Tree Doctrine This exclusion is of the evidence that is indirectly obtained when one’s rights are violated  Sometimes called derivative or secondary evidence  It is the evidence resulting from an illegal search or illegal interrogation

28 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ When is a Statement Compelled? In most cases the statement is compelled if the following was used to obtain a Miranda waiver:  There was a promise of leniency  There were threats to arrest members of a suspect’s family A suspect may make a valid waiver of Miranda rights, but the statements may be violating the Fourteenth Amendment based on coercive tactics used by the police to obtain the statement

29 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Factors in Determining “Coercive” Age of the suspect Experience of the suspect Intelligence or mental illness Alcohol or drug intoxication Physical condition of the suspect Length of the interrogation

30 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ The Fourth Amendment to the U. S. Constitution The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized

31 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Fourth Amendment Interrogation Application Since the application of the exclusionary rule to the states, a confession, statement, or admission, which is made by a person who is illegally in custody may be excluded because it is evidence obtained as a result of an unlawful seizure To pick-up a suspect and take him to the police station for interrogation the officer must have probable cause for an arrest of that person OR the detainment must be voluntary (Kaupp v. Texas, 2003)

32 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Fourth Amendment Considerations It is established law that the Fourth Amendment protects against arbitrary arrests (Steagald v. U.S., 1981).

33 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Miranda and the Fourth Amendment Giving Miranda warnings does not make the detention legal  Any subsequent confession is subject to the exclusionary rule  A violation of the Fourth and Fourteenth Amendments cannot be remedied by Miranda warnings alone

34 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Police Power of Arrest When a police officer has reasonable belief, based on facts and circumstances, that a person has committed or is about to commit a crime  This is the arrest based on probable cause When the police officer personally sees someone commit a crime When an arrest warrant has been issued

35 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin © 2007 Pearson Education, Inc. Upper Saddle River, NJ Probable Cause Probable cause is based on the totality of the circumstances and is more than just the suspicion of the officer Personal observations Hearsay Prior criminal record, furtive conduct, evasive answers, or the area


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