Constitutional protection of accused persons - Confessions and privilege against self-incrimination

Learning Outcomes

This article examines the constitutional limitations on the admissibility of confessions and incriminating statements in criminal proceedings. After reading this article, you will understand the requirements of the Fifth Amendment privilege against self-incrimination, the Miranda doctrine, the Sixth Amendment right to counsel as applied to interrogations, and the Fourteenth Amendment's due process voluntariness standard. You will be able to identify when these rights apply, what constitutes a violation, and the consequences for the admissibility of evidence under the exclusionary rule.

MBE Syllabus

For the MBE, you are required to understand the constitutional safeguards surrounding confessions and the privilege against self-incrimination. This includes analyzing the application and interaction of the Fifth, Sixth, and Fourteenth Amendments. You should be prepared to:

• Analyze the voluntariness of a confession under the Fourteenth Amendment Due Process Clause.
• Determine when the Fifth Amendment privilege against self-incrimination applies.
• Identify the requirements for Miranda warnings, including "custody" and "interrogation."
• Assess the validity of a waiver of Miranda rights.
• Evaluate the consequences of invoking the right to remain silent versus the right to counsel under Miranda.
• Recognize when the Sixth Amendment right to counsel attaches and applies to post-charge interrogations.
• Distinguish between the Fifth and Sixth Amendment rights to counsel.
• Apply the exclusionary rule and its exceptions to statements obtained in violation of these constitutional rights.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A suspect is arrested for burglary, taken to the police station, and read their Miranda rights. The suspect states, "Maybe I should talk to a lawyer." The police continue questioning, and the suspect confesses. The confession is likely:
   1. Admissible, because the request for counsel was ambiguous.
   2. Admissible, because the suspect initiated further discussion after the ambiguous request.
   3. Inadmissible, because any mention of counsel requires questioning to cease.
   4. Inadmissible, unless the police clarified the suspect's statement before continuing questioning.
2. Which constitutional provision governs the admissibility of a confession obtained through threats of physical violence by the police?
   1. The Fourth Amendment search and seizure clause.
   2. The Fifth Amendment privilege against self-incrimination.
   3. The Sixth Amendment right to counsel.
   4. The Fourteenth Amendment Due Process Clause.
3. The Sixth Amendment right to counsel attaches and applies to police interrogations:
   1. Whenever a suspect is taken into custody.
   2. Only after formal adversarial judicial proceedings have commenced (e.g., indictment).
   3. Whenever a suspect requests an attorney during custodial interrogation.
   4. Only during the trial itself.

Introduction

The admissibility of a defendant's confession or incriminating statement is a frequently tested area governed by several constitutional provisions. The government cannot compel a person to be a witness against themselves (Fifth Amendment), must ensure counsel is available during critical stages after charges are filed (Sixth Amendment), and cannot obtain confessions through coercion that offends fundamental fairness (Fourteenth Amendment Due Process). Understanding the distinct requirements and triggers for each protection is essential for analyzing confession-related issues on the MBE.

Fourteenth Amendment: Voluntariness

The fundamental requirement for admitting any confession is that it must be voluntary under the Due Process Clause of the Fourteenth Amendment (and the Fifth Amendment for federal cases). Voluntariness is assessed based on the totality of the circumstances, considering factors like the suspect's age, education, mental and physical condition, the setting, duration, and manner of police interrogation.

A confession is involuntary only if there is official compulsion that overbears the suspect's will. Actions like threats, actual physical violence, or promises of leniency made by law enforcement can render a confession involuntary. A confession resulting solely from the suspect's internal pressures (e.g., mental illness) without police coercion is considered voluntary for due process purposes.

Key Term: Voluntariness (Confessions) The constitutional standard under the Due Process Clauses requiring that a confession not be obtained through coercion or official compulsion that overbears the suspect's will, assessed by the totality of the circumstances.

An involuntarily obtained statement is inadmissible for any purpose at trial, including impeachment. Furthermore, evidence obtained as a direct result of the involuntary statement (fruits of the poisonous tree) is also inadmissible.

Fifth Amendment Privilege Against Self-Incrimination

The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." This privilege applies only to testimonial or communicative evidence, not to physical evidence (like blood samples or fingerprints). It allows a person to refuse to answer questions in any proceeding, civil or criminal, where the answers might incriminate them in a future criminal prosecution.

Miranda Warnings

To safeguard the Fifth Amendment privilege during police interrogation, the Supreme Court established procedural safeguards in Miranda v. Arizona. Miranda warnings are required when a suspect is subjected to custodial interrogation.

Key Term: Custodial Interrogation Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Requires both custody and interrogation elements to be present.

1. Custody: Custody exists if a reasonable person under the circumstances would believe they were not free to terminate the interrogation and leave. It is an objective test. A routine traffic stop is generally not considered custodial. Being in prison does not automatically mean one is in "custody" for Miranda purposes; the specific circumstances of the questioning within the prison environment matter.

2. Interrogation: Interrogation includes express questioning and any words or actions by police that they should know are reasonably likely to elicit an incriminating response (the "functional equivalent" of questioning). Spontaneous or volunteered statements made by a suspect not in response to interrogation do not trigger Miranda. Routine booking questions are also generally excluded.

Key Term: Miranda Warnings Procedural safeguards required by the Constitution before custodial interrogation, informing a suspect of their right to remain silent, that any statement can be used against them, their right to an attorney, and that an attorney will be appointed if they cannot afford one.

Waiver of Miranda Rights

A suspect may waive their Miranda rights, but the waiver must be knowing, voluntary, and intelligent. The prosecution bears the burden of proving waiver by a preponderance of the evidence. An express waiver is not required; a waiver can be implied if the suspect, after understanding the rights, chooses to speak with police.

Invocation of Rights

A suspect can invoke their rights at any time before or during interrogation.

• Right to Remain Silent: If the suspect clearly and unambiguously indicates they wish to remain silent (e.g., "I don't want to talk"), questioning related to the specific crime must cease immediately. Police may re-approach the suspect after a significant period and give fresh warnings, potentially about a different crime, if they "scrupulously honor" the initial invocation. Merely remaining silent is not an invocation.
• Right to Counsel: If the suspect makes an unambiguous and specific request for counsel (e.g., "I want a lawyer"), all questioning about any crime must cease until counsel is present or the suspect reinitiates contact. This is a stricter protection than invoking the right to silence. Police may not resume questioning without counsel present, even about an unrelated crime. The prohibition lasts while the suspect is in custody plus 14 days after release.

Public Safety Exception

Miranda warnings are not required if police questioning is reasonably prompted by a concern for public safety (e.g., asking about the location of a hidden weapon).

Consequences of Miranda Violation

A statement obtained in violation of Miranda is generally inadmissible in the prosecution's case-in-chief. However, it can be used to impeach the defendant's testimony if they choose to testify at trial, provided the statement was otherwise voluntary. Physical evidence obtained as a result of a voluntary statement taken in violation of Miranda is generally admissible ("nontestimonial fruits").

Sixth Amendment Right to Counsel

The Sixth Amendment guarantees a defendant the right to assistance of counsel in all criminal prosecutions. This right attaches after formal adversarial judicial proceedings have commenced (e.g., formal charge, preliminary hearing, indictment, information, or arraignment).

Key Term: Sixth Amendment Right to Counsel (Post-Charge Interrogation Context) The right of an accused to have counsel present during any questioning initiated by law enforcement after formal adversarial judicial proceedings have begun regarding the specific offense charged.

Key distinctions from the Fifth Amendment Miranda right to counsel:

1. Attachment: Attaches automatically after formal charges, regardless of custody. Miranda right applies only during custodial interrogation.
2. Scope: The Sixth Amendment right is offense-specific. It applies only to questioning about the specific offenses for which the defendant has been formally charged. Police can question the defendant about unrelated, uncharged crimes without violating the Sixth Amendment right (though Miranda might still apply if the questioning is custodial). The Miranda right is not offense-specific; once invoked, it bars questioning about any crime.
3. Invocation: The Sixth Amendment right does not need to be invoked like the Miranda right; it exists automatically post-charge unless waived.
4. Type of Questioning: Applies to "deliberate elicitation" of incriminating statements, which includes express questioning but also using undercover informants to obtain statements about the charged offense. Miranda applies only to interrogation by known officers.

Waiver and Violation

The Sixth Amendment right can be waived if the waiver is knowing, intelligent, and voluntary. A statement obtained in violation of the Sixth Amendment right (e.g., police deliberately elicit statements about the charged offense after the right has attached and without counsel present or a valid waiver) is inadmissible in the prosecution's case-in-chief. Like Miranda-violative statements, it can be used for impeachment. Evidence derived from a Sixth Amendment violation (fruits) may also be subject to exclusion.

Worked Example 1.1

Defendant is arrested for Robbery A and invokes his Miranda right to counsel. While still in custody, before any formal charges are filed, police question him about Robbery B, an unrelated crime. He confesses to Robbery B. Is the confession admissible?

Answer: No. Although the Sixth Amendment right to counsel has not attached (no formal charges), the defendant invoked his Fifth Amendment Miranda right to counsel. Once invoked, this right prevents police from questioning the suspect about any crime while he remains in custody, unless counsel is present or the suspect reinitiates contact. The questioning about Robbery B violated his Miranda rights.

Worked Example 1.2

Defendant is formally charged with Burglary. While out on bail, an undercover officer posing as a fellow criminal engages Defendant in conversation and deliberately elicits incriminating statements about the charged Burglary. Is the statement admissible?

Answer: No. The Sixth Amendment right to counsel attached when Defendant was formally charged. The state deliberately elicited incriminating statements about the charged offense outside the presence of counsel (and without a waiver). This violates the Sixth Amendment right. Miranda is not implicated because the questioning was not custodial (Defendant was on bail) and was by an undercover agent (not known police interrogation).

Exclusionary Rule and Confessions

The exclusionary rule applies to confessions obtained in violation of the Fourteenth, Fifth, or Sixth Amendments, rendering them inadmissible as substantive evidence of guilt.

Key Term: Exclusionary Rule (Confessions) A judge-made rule prohibiting the use of confessions obtained in violation of a defendant's constitutional rights (Due Process, Fifth Amendment Self-Incrimination/Miranda, Sixth Amendment Right to Counsel) as substantive evidence in the prosecution's case-in-chief.

• Involuntary Confessions (14th Am): The confession and its fruits are inadmissible for any purpose.
• Miranda Violations (5th Am): The statement is inadmissible in the case-in-chief but usable for impeachment. Fruits (physical evidence) are generally admissible unless the violation was purposeful.
• Right to Counsel Violations (6th Am): The statement is inadmissible in the case-in-chief but usable for impeachment. Fruits may be inadmissible, depending on the circumstances.

Key Point Checklist

This article has covered the following key knowledge points:

• Confessions must be voluntary under the Fourteenth Amendment Due Process Clause (totality of circumstances test, no official coercion).
• The Fifth Amendment protects against compelled self-incrimination.
• Miranda warnings are required for custodial interrogation.
• Custody requires formal arrest or significant restraint on freedom of movement (objective test).
• Interrogation includes express questioning and its functional equivalent.
• Miranda rights (silence, counsel) can be waived knowingly, voluntarily, and intelligently.
• Invocation of the right to silence requires questioning about that crime to cease (but police may re-approach later under certain conditions).
• Invocation of the Miranda right to counsel requires all questioning about any crime to cease until counsel is present or the suspect initiates.
• The Sixth Amendment right to counsel attaches after formal charges are filed.
• The Sixth Amendment right is offense-specific and applies to deliberate elicitation.
• Statements obtained in violation of Miranda or the Sixth Amendment right to counsel are generally inadmissible in the case-in-chief but may be used for impeachment.
• Involuntary confessions and their fruits are inadmissible for any purpose.

Key Terms and Concepts

• Voluntariness (Confessions)
• Custodial Interrogation
• Miranda Warnings
• Sixth Amendment Right to Counsel (Post-Charge Interrogation Context)
• Exclusionary Rule (Confessions)