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

10-1© 2007 Pearson Education, Inc.Upper Saddle River, NJ 07458

Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin

The Interrogation Process and the Law

Chapter 10

Smart Talk: Contemporary Interviewing and InterrogationBy Denise Kindschi Gosselin

© 2007 Pearson Education, Inc.Upper Saddle River, NJ 07458

10-2

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



10-3

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



10-4

Confession Admissibility The four prong

test for the admissibility of a confession is contained in the Fourth, Fifth, Sixth, and Fourteenth Amendments



10-5

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.



10-6

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



10-7

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



10-8

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).



10-9

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



10-10

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



10-11

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



10-12

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



10-13

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



10-14

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



10-15

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



10-16

Some Exceptions to the Miranda RequirementVoluntary 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



10-17

Some Exceptions to the Miranda RequirementPublic 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



10-18

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



10-19

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.



10-20

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



10-21

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.



10-22

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



10-23

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.



10-24

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



10-25

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



10-26

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!



10-27

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



10-28

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



10-29

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



10-30

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



10-31

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)



10-32

Fourth Amendment Considerations It is established law

that the Fourth Amendment protects against arbitrary arrests (Steagald v. U.S., 1981).



10-33

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



10-34

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



10-35

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

Documents

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