2. n Admissions n Admissions and Confessions

3. Admissions and Confessions Generally n Under the FRE, any statement made by a party is an admission and can be used in evidence against him or her as long as the statement is relevant to the case. n Admissions cover a broad category of evidence. n An admission presents no hearsay problems, because admissions are exempt from the hearsay rule.

4. Admissions: More Than Mere Words n Admissions are not limited to verbal statements made by a party—they can be inferred from a person's demeanor, conduct and acts, or even silence.

5. Statements in the Criminal Trial n Statements made before trial by criminal defendants are also admissions and can be used as evidence at trial. n However, a defendant's statement made while in police custody is inadmissible unless the prosecution proves that the statement was made voluntarily and specific rights (Miranda and Sixth Amendment right to counsel) were waived before the statement was made.

6. Confessions n A defendant's statement is a confession when the statement is a conscious acknowledgment of guilt (all the elements of a crime) by an accused. n Both admissions and confessions must be voluntarily given to be admissible against an accused in a criminal case.

7. What is a confession? n Defined as a voluntary statement made by a person charged with the commission of a crime communicated to another person, wherein s/he acknowledges to be guilty of the offense charged. n (Discloses the circumstances of the act or the share and participation s/he had in it.)

8. Confessions and Admissions n Confessions and admissions frequently overlap and it is sometimes difficult to decide if a statement is an admission or a confession.

9. The Distinction Between a Confession and an Admission According to one court: n A confession is an admission of the crime itself. n An admission concerns only some specific fact which, in turn, tends to establish guilt or some element of the offense.

10. Law Enforcement and Admissions and Confessions n For purposes of the law enforcement officer's understanding, the most important fact is that both admissions and confessions must be voluntarily made in order to be used in court against a person accused of a crime.

11. Law of Evidence vs. Constitutional Law n The law of evidence is not nearly as important in deciding the admissibility of admissions and confessions as is constitutional law.

12. United States Supreme Court: Imposed Requirements on Law Enforcement Officers n The United States Supreme Court has imposed requirements on law enforcement officers in connection with admissions and confessions stemming from Fourth, Fifth, Sixth, and Fourteenth Amendments.

13. Admissions n Statements or acts by an accused before trial that are not an acknowledgment of guilt, but do link the accused with a crime or are in some way incriminating, are admissions. n The accused need not intend to incriminate himself or herself for the statement or act - to be an admission. n An admission may be a simple acknowledgment of being at the crime scene, of being acquainted with the victim of a crime, or even a denial that the defendant was at the scene.

14. n Any statement or act could become incriminating once coupled with other evidence. n For example, assume an officer arrests the accused and states to her: “You are under arrest for robbery,” and the accused responds: “I was out of town yesterday afternoon.” n Since the officer said nothing about the place and date of the robbery, the accused's response discloses peculiar knowledge that only the perpetrator of the crime would know and constitutes a “false denial” and is admissible against the accused on a theory of consciousness of guilt.

15. Acts as Admissions n Acts are also classified as a form of admission if they are inconsistent with an accused's innocence. n Thus, acts such as trying to escape detection and arrest, or to hide a crime, are admissions and may be introduced against the accused at a trial.

16. Admission by Silence or Accusatory Statements n The defendant's silence in circumstances where a person would normally speak out may be an admission. n Whether or not this silence may be introduced as an admission of guilt depends upon the conditions under which the silence occurred.

17. Implied Admission of Guilt or Adoptive Admission n If a person makes a statement in front of another, accusing him or her of committing a crime and no reply or denial is made, this is considered to be an implied admission of guilt or adoptive admission.

18. Statements by an Accused While in Police Custody n A statement made by a person while in police custody is usually not an adoptive admission because a person in custody is not required to say anything. n Even if a suspect is not in custody, just being in the presence of officers and under suspicion is enough to cause a reasonable person to remain silent in the face of an accusation.

19. Confessions: General Principles and Considerations n Throughout human history, statements have been coerced from people by a variety of means that are unacceptable today. n For this reason, admissions and confessions are often subjected to “strict scrutiny.”

20. U.S. Supreme Court and Confessions n In the twentieth century, the United States Supreme Court developed the exclusionary rule and continues to develop complex and strict rules pertaining to the admissibility of confessions in evidence.

21. Development of the Free and Voluntary Rule n History has revealed many confessions used in the past to convict persons were coerced through various forms of torture, such as the rack and screw or the application of red-hot irons to bare flesh.

22. Development of the Free and Voluntary Rule n Today: “Water- Boarding”

23. Free and Voluntary Confessions n For a confession to have been freely and voluntarily made, the person making the confession must have been in a position to exercise complete mental freedom at the time the confession was made. n The courts have been strict in their interpretation of what will affect this “complete mental freedom” and have ruled that pressure applied to induce a confession will be considered as an interference with mental freedom and cause the confession to be excluded from evidence at trial.

24. n At first, courts were primarily concerned with whether the confessor had been subjected to any physical abuse to induce the confession. n Later, the courts came to recognize that other things might affect freedom of the mind, such as psychological pressures upon the accused before or during interrogation. n Psychological pressure has been interpreted as any act or statement that may place the accused under a mental strain, such as a threat of violence, a threat of action to be taken against members of the accused's family, extreme deception, promise of reward, or duress.

25. The Test for Freely and Voluntarily n The requirement that the confession must be given freely and voluntarily satisfies two concerns of modern jurisprudence. u First, unless the confession is so given, there may be a doubt about the fundamental fairness of its use at trial against the accused; and u Second, unless it is given freely and voluntarily, the accused’s right against self- incrimination may be violated.

26. Development of Additional Requirements: McNabb-Mallory Rule n First, the high Court, developed a per se rule, applicable only in the federal courts. This rule excluded potentially coerced confessions, by addressing the practice of detaining arrested persons in isolation for an extended period of time. u Admissibility did not depend on whether the confession was voluntary, but was based on whether an arrested suspect was brought before a committing magistrate for arraignment “without unnecessary delay” following the suspect's arrest.

27. Development of Additional Requirements n The U.S. Supreme Court also extended the basis for a finding of a coerced confession, from threatened and actual physical coercion to psychological coercion as well. n In 1944, in Ashcraft v. Tennessee, the Court held that 36 hours of continuous interrogation alone was enough to render the accused's confession coerced.

28. Escobedo v. Illinois n In 1964, in Escobedo v. Illinois, the Supreme Court found that a police interrogation of a suspect violated the Sixth Amendment right to counsel.

29. Massiah v. United States n Also in 1964, the Court held in Massiah v. United States that police interrogation (deliberate elicitation) of an indicted person in the absence of an attorney (or waiver by the accused) is a violation of the Sixth Amendment's right to counsel.

30. Free and Voluntary Rule n Under the free and voluntary rule, each case required a factual assessment of the accused's claim that his or her confession was coerced.

31. Miranda v. Arizona n Miranda requires the police to warn a suspect in custody : u of his or her right to remain silent; u that anything the suspect says might be used in court against the suspect; u that the suspect has the right to have counsel present during questioning; and u that counsel will be appointed for the suspect if the suspect cannot afford counsel.

32. Violation of Miranda n In the absence of these Miranda warnings and a waiver of the rights to remain silent and to counsel during police interrogation, any statement obtained by the police cannot be used against the accused at trial, even if the statement is not coerced.

33. Confessions Excluded Due to Violation of Due Process of Law: Coerced Confessions n A coerced confession could be unreliable! n Even if the confession is reliable, it should be excluded from evidence because the police should “obey the law while enforcing the law.”

34. The Totality of the Circumstances n The test for voluntariness, according to the Supreme Court of the United States, is the totality of the circumstances.

35. Brown v. Mississippi n The three defendants had been whipped by local law enforcement authorities until they confessed. n During the trial, the confessions were admitted before the manner in which they were obtained was brought out. n The case was taken to the Supreme Court of the United States, where it was argued that, by the introduction of these confessions, the defendants had been denied due process of law.

36. n Not only will actual physical mistreatment of the accused cause a confession to be excluded, but extreme discomfort suffered by the accused during the interrogation might also cause statements made to be inadmissible. u Even lengthy, uninterrupted questioning, without providing food, rest, or bathroom use, could be sufficient grounds for a court to exclude a statement from trial as involuntary.

37. Confessions Coerced by Psychological Pressure n Overcoming the will of a suspect can be achieved just as effectively by application of psychological pressure as it can by application of physical force. n Psychological pressure, or “mental stress,” takes many forms.

38. n It may result from a mere suggestion that if the accused will confess, “things will go easier for him or her.” n It may be some other promise or reward, such as a promise that no action will be taken against the accused’s spouse; or that every effort will be made to assist the family of the accused to get welfare aid if the confession is given. n The mental stress may be created by a threat of action to be taken against the family of the accused, such as taking his or her children and placing them with social services unless a confession is forthcoming.

39. Spano v. New York n The confession was obtained in violation of the Due Process Clause of the Fourteenth Amendment based on a totality of the circumstances, particularly relying on four factors: u the official pressure from a barrage of questioning by several different officers; u the effect of denying Spano's requests to speak with his attorney; u the fatigue resulting from the interrogation's length and time of night; and u the sympathy falsely created by an Officer.

40. Exclusion of Confessions Due to Violation of Rights Secured under Miranda v. Arizona n Perhaps no legal decision is more widely known by people in all walks of life than Miranda v. Arizona— the case that imposed the requirement that police give warnings to criminal suspects of their rights to remain silent and to have an attorney present during questioning.

41. The Miranda Rule n The Miranda rule requires that a law enforcement officer “read” Miranda warnings to a suspect before custodial interrogation. n The officer must advise the suspect that the suspect has the right to remain silent, that anything the suspect says can and will be used against the suspect at trial, that the suspect has a right to an attorney being present during questioning, and that if the suspect cannot afford an attorney, one can be provided at no cost to the suspect.

42. Police Departments Issued Credit Card-Sized Miranda Cards n Most police departments issue credit card-sized Miranda cards that list the rights that must be read to and waived by the suspect before questioning may begin.

43. Translators Should Administer Warnings in the Language Other Than English n In those situations where the officer is faced with a suspect who either does not speak English or where English is a second language, a different problem is presented.

44. n Today, the Miranda requirements apply to custodial interrogations of suspects by law enforcement officers. n When an officer has a suspect in custody and engages in interrogation, the officer must inform the suspect of his or her Miranda rights, and the officer should not interrogate the suspect unless he or she waives those rights. n * If the suspect invokes his or her rights at any time, the officer must cease interrogation and scrupulously honor the rights the suspect asserts.

45. Relevant Topics for Discussion Relating to the Miranda Rules n What is custody for purposes of Miranda? n What is interrogation for purposes of Miranda? n What constitutes a valid waiver of Miranda rights? n What constitutes a valid waiver after a suspect has asserted his or her rights? n What is the effect of the exclusionary rule on statements taken in violation of Miranda? n What are exceptions to the Miranda rule?

46. What Constitutes Custody for Purposes of Miranda? n Custody results when a police officer restrains a person in such a way consistent with formal arrest, regardless of the situation or intent of the officer. n Anytime a person is taken into custody, the officer is required to give Miranda warnings if to be interviewed / questioned.

47. Custody + Questioning = Miranda Waiver

48. The Supreme Court’s Concern n In Miranda itself, the U.S. Supreme Court talked about its concern with the coercive atmosphere of the police station. n However, the coercive atmosphere could exist anywhere; and, the fact that a suspect is questioned in a police station, does not necessarily mean that he or she is in custody for purposes of Miranda.

49. What Constitutes Interrogation for Purposes of Miranda? n When an officer has a suspect in custody and specifically asks him or her direct questions about the incident under investigation, the officer is engaged in interrogation within the meaning of the Miranda rule.

50. An Important Definition n The Supreme Court stated that interrogation as used in Miranda refers to “either express questioning or its functional equivalent.” n Furthermore, the Court defined “functional equivalent” as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”

51. What Constitutes a Valid Waiver of Miranda Rights? n In the Miranda decision, the Supreme Court stated that the prosecution has a “heavy burden” of proof that any claimed waiver of rights by an accused was made voluntarily, knowingly, and intelligently.

52. What Constitutes a Valid Waiver After a Suspect Asserts His or Her Rights? n The Court stated that if a suspect, prior to or during interrogation, indicates in any manner that “he wishes to remain silent, the interrogation must cease.” * * * n Likewise, the Court said that if an individual says that “he wants an attorney, the interrogation must cease until an attorney is present.” * * *

53. Exceptions to the Miranda Rule n Public safety exception n Routine booking questions exception n Undercover police questioner exception

54. New York v. Quarles n The public safety exception holds that Miranda should not apply to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. (i.e Where is the weapon?)

55. Pennsylvania v. Muniz n The Justices concluded that questions posed to an arrestee during booking, such as those relating to name, address, weight, eye color, date of birth, and age are within a “routine booking question” exception, “which exempts from Miranda's coverage questions to secure the ‘biographical data necessary to complete booking or pretrial services.’”

56. Illinois v. Perkins n The Court held that “an undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response.” n The Court said that “ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns.

57. Fruit of the Poisonous Tree Doctrine Revisited n When there is a violation of a defendant's constitutional rights, in addition to the direct fruit of the violation being inadmissible, any evidence derived from the violation is also inadmissible under the “fruit of the poisonous tree” doctrine.

58. What “the fruit of the poisonous tree” means. n The theory of the fruit of the poisonous tree doctrine is that if the root of the tree is poisoned, the fruit of the tree is also poisoned. n It is important to note that the case may be dropped if, without the inadmissible evidence, the case against the accused is insufficient to support a conviction.

59. Not everything is inadmissible n The U.S. Supreme Court has created an impeachment exception to the rule that excludes statements taken by the police in violation of Miranda. n If a defendant: u takes the witness stand, and u testifies untruthfully (inconsistent statement), the prosecutor can use a statement obtained in violation of Miranda to impeach the defendant's testimony.

60. Massiah v. United States n The U.S. Supreme Court used the “exclusionary rule” as a means of discouraging police misconduct in obtaining suspects’ incriminating statements.

61. When the Right to Counsel Rule Applies n The Supreme Court of the United States has held that the right attaches only at a critical stage of a prosecution, which means when adversarial judicial proceedings have been initiated, “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”

62. When and How an Officer Can Communicate With an Accused After the Right Attaches n Once an accused has retained the services of an attorney or after adversary judicial proceedings have been initiated, any attempt by a law enforcement officer to deliberately elicit incriminating information will violate the right to counsel.

63. An Aberration in Law: Clear Cut Rules n Should the accused request counsel, then questioning must stop. n If an attorney has been hired or appointed, but the accused has not yet consulted with the attorney, caution dictates that no communication be initiated by law enforcement with the accused without counsel being present.

64. How an Accused Can Waive the Right to Counsel n A waiver of the right to counsel is possible in all situations where the accused is informed of the right and makes a voluntary, knowing, and intelligent waiver of that right.

65. Confession Given After an Unlawful Search and Seizure May Be Excluded n The exclusionary rule and the fruit of the poisonous tree doctrine both apply to the products of an unlawful search or seizure. n Therefore, if a person, subjected to an unlawful search and seizure, makes incriminating statements, those statements are inadmissible under the exclusionary rule.

66. The Continued Importance of Confessions as Evidence n There are many technical rules that limit the admissibility into evidence of incriminating statements. u Nonetheless, such statements remain a critical weapon in law enforcement's arsenal in the war on crime. n In fact, the Miranda Court specifically pointed out that “confessions remain a proper element in law enforcement,” and confessions continue to play a major role in law enforcement.

67. Wording of Confessions n There is no prescribed wording for a statement or a confession.

68. Obtaining Confessions n There is no requirement that a confession be written, but from an evidentiary standpoint, it is preferable that it be written and signed by the accused. n It is also advisable to either audio- or videotape the process leading up to the confession, as well as the confession itself.

69. A Sample Preamble “I, (the name of the accused), make this voluntary statement to officer (name of officer or officers conducting the interrogation). I make this statement without threats or promises being made to me. I have been advised of my right to remain silent. I have also been advised of my right to consult an attorney, and to have that attorney present during the time that I am being questioned by the officer.

70. A Sample Preamble I was also advised that if I could not afford an attorney, one would be provided for me free of charge. I was advised that if I did say anything, it could be used against me in court. I wish to state that I understand my right to remain silent and my right to an attorney, but I waive these rights and wish to make the following statements to (officer's name).”

71. The Confession n May be in question-and-answer form which is better as it more truly reflects exact statements of the accused. n May be a narrative form of statement which is a summary of the facts as related by the accused which has the difficulty that it is frequently in the words of the officer, not the accused.

72. Concluding the Confession n A statement, in the accused’s own handwriting, is suggested to conclude the confession. n Sample: “I have read the following statement consisting of (number) pages, and it is true and correct to the best of my knowledge and belief.”

73. Proof of the Crime in Addition to a Confession The Requirement of Corpus Delicti n It is generally conceded in the United States that a person cannot be convicted of a crime upon a confession alone. n There must be some proof of the crime in addition to the acknowledgment of guilt by the accused, some outside proof of the corpus delicti, that is, proof that a crime has been committed.

74. n The reason for the rule requiring additional proof of a crime beyond a confession is deeply ingrained in Anglo-American jurisprudence. n The best interests of justice demand that we not convict persons who may be innocent of the crime.

75. n Not infrequently, people who suffer from mental instability confess to imaginary crimes, or to real crimes for which the unstable person is not responsible. n For reasons of their own, people confess to crimes committed by others.