CONFESSION AND SELF-INCRIMINATION
A fool tells me his reasons" (Aristotle)

    The law of confession doesn't exist in any one place. It is a conglomeration of Constitutional Law, Federal and State statutes (legislative law), and Anglo-American tradition. These sources are encapsulated and expressed within the hurdles that a confession must pass in order to be considered valid.  Confession is the "holy grail" of law enforcement. It absolutely cements or "nails" a conviction, and has been treated as a ironclad element of proof at least since 12th Century France.  It is technically a form of testimony, adverse testimony at that, that admits or acknowledges all facts necessary for conviction of a crime.  Not to overstate the point, confessions are the best piece of evidence of guilt in the criminal justice system.  Lawyers and criminologists often argue about the academic meaning of "guilt," "proof," "facts," and "truth," but the bottom line is that the only thing a confession has to be cross-checked for is whether it was coerced or not.  Otherwise, it stands as the "truth." 

    Forget about the religious aspect of it for a moment, or the ancient idea that confession is good for the soul.  That aspect may make for interesting history, but the real story is in how contemporary law views human nature.  The law assumes that people caught doing a bad thing will automatically deny doing it, but offer some kind of explanation.  In fact, the desire to explain oneself is great when confronted with serious allegations.  Someone eager to explain themselves is also likely to be an upstanding member of the community, show respect for law enforcement, and generally abide by all the rules and norms of society.  Now of course there are "vulnerables" or dim-witted people like Miranda law is supposed to protect, but the vast majority of confession cases involve intelligent, normal, law-abiding people admitting at least something, in the course of their explanation, that is the functional equivalent of a confession.  Given this, it is more practical to look at the contemporary law of confession as a kind of "walk-in, come-as-you-are," self-arrest procedure which plays an important role in society regarding citizen-police trust.

SOURCES OF THE LAW OF CONFESSION

THE VOLUNTARINESS TEST

    Also called the free & voluntary rule, this test is a two-prong test involving subjective and objective factors much like a totality of circumstances test. One part of the test focuses upon the susceptibility of the suspect, and the other part of the test focuses upon the environment & methods used.

 

SUSCEPTIBILITY:

ENVIRONMENT & METHODS USED:

Background of the suspect
Intelligence of the suspect
Education of the suspect
Prior experience with system
Physical condition of the suspect
Mental condition of the suspect
Coping skills
Location of the setting
Length of the questioning
Intensity of the questioning
Frequency of the questioning
Food & sleep deprivation
Intimidating presence of officers

ANGLO-AMERICAN TRADITION

    This tradition holds that confessions must be a product of free will & voluntary choice. Free will must not be "overcome" and voluntary choice must not be "coerced." This tradition is sometimes taken to imply a positive freedom of choice by some interpreters, but that in itself is questionable.

    Compare the Anglo-American tradition to the Continental Law tradition. When trial by ordeal ended around 1215, most of Europe from the 13th-18th century adopted the LAW OF TORTURE. The closest the English countries came to this was adoption of the Bailey system of having the same jury hear dozens of cases a day. The law of torture had four rules:

THE LAW OF TORTURE
1. Only those highly likely of guilt would be tortured.
2. Any confession extracted under torture would only be admissible if "clear as the noonday sun".
3. If the confession was unclear, 1 witness was needed.
4. If the confession was recanted, 2 witnesses were needed.

    Germany today has about a 40% confession rate, but countries operating under modern-day Continental Law don't relieve the prosecutor from the burden of proof when trying a case with a valid confession.

    By comparison, the U.S. has about a 60% confession rate, and a confession is the "golden goose" of Anglo-American criminal justice. It normally relieves a prosecutor of the burden of proof in trying a case. Only when a defense lawyer challenges the validity of a confession (via a motion to suppress) does this force the burden back onto the prosecutor.

KEY DEVELOPMENTS IN CONFESSION LAW

ADMISSIBILITY AND SUPPRESSION

    Interrogation leading to confession is one of the most widespread practices today. Our police agencies are extremely good at it, and I'd venture to say the United States probably leads the industrialized world in confession rates. Three out of four people waive their Miranda rights (Leo 1996c), and the number of people that confess to police is usually expressed as 60% of all interrogations, although the range is more like 50-75% (Gudjonsson 1992). Comparing this to Germany, which only has about a 40% confession rate, American police have a right to be proud. A confession is also regarded as the "holy grail" of law enforcement. It's prima facie, direct evidence of guilt. It's not a presumption of guilt; it's not even just part of the proof that a prosecutor must deliver in court; it's often the main thing relied upon for conviction at trial.

    Unlike Germany and other industrialized countries, the U.S. has some rather unique evidentiary procedures where the burden of proof (and burden of persuasion) shifts. Confessions in America relieve the prosecutor of the burden of proof. The best available defense strategy is to file motion for a suppression hearing. It's the only way to get the court to address the issues associated with whether the confession was proper or not. Most states require that suppression motions be made prior to trial. At suppression hearings, the defense attorney bears the burden of proof that a search was illegal or a confession was coerced. The only exception involves allegations that Miranda warnings were not given, in which case the state retains the burden of proof.

    Suppression hearings are best characterized as swearing matches over what really went on at the police station. Judges are reluctant to grant motions for them because they are restricted to an umpire role. The defense attorney who files them may be perceived as engaging in frivolous pretrial delay, but they have nothing to lose. If the motion is denied, discovery rules may put the defense at a distinct advantage; if the motion is granted, the attorney may be able to make such allegations that the prosecutor is willing to drop the charge or plea bargain.

    Defense attorneys understandably want stronger discovery laws (discovery is the informal and formal exchange of information between prosecution and defense). Discovery seeks to ensure fairness in the adversary process. Ambush, concealment, and surprise are not to be tolerated by the judicial system. The rules of criminal procedure require the defense to give notice beforehand if they plan to mount an alibi defense, offer an insanity plea, or call expert witnesses, and all these things may trigger a pretrial hearing. States that adhere to the Brady Rule (Brady v. Maryland 1963) require the prosecutor to open their files completely to the defense, but most states don't operate under the Brady Rule, and defense attorneys must be more resourceful. In practice, the prosecution offers to share what evidence it wants to in order to give the defense an advance glimpse at the prosecution's case in order to encourage a plea of guilty. There are cons on both sides with the discovery rules. On the one hand, it can strain attorney-client relationships if the defendant isn't telling their attorney everything; and on the other hand, it gives the defense an advantage to engage in witness-tampering (if they are so inclined).

    The exclusionary rule prohibits the prosecutor from using illegally obtained evidence during trial. There are, in fact, three (3) distinct exclusionary rules: one for search and seizure; one for identification of suspects; and one for confessions. The exclusionary rule for confessions is contained in at least 20 different pieces of case law, and it's not all that precise. However, the exclusionary rule is the Supreme Courts' sole technique for enforcing several vital protections of the Bill of Rights.

INTERROGATION PROCEDURES

    Typically, detectives begin by making eye contact and engaging in idle conversation with the suspect in a sparsely-furnished room. The Miranda warnings are given if they haven't been given already (3 out of 4 people waive Miranda). Next, the detective states that it is their job to discover the truth and they usually share some piece of evidence in the case at this point. Negative incentives are usually used first -- in an attempt to get the subject to confess because they would certainly lose any battle in court. Positive incentives are then usually used -- in an attempt to get the suspect to feel better if they confess.

    The statements that suspects make to the police at this point can be categorized as:

    Incriminating statements tend to be lumped by detectives into the category of "soft" confessions or what is sometimes called an "admission" (everything above being a "hard" confession). Some prosecutors will accept "soft" confessions from the police and go to trial with them. Police rarely press for more than they think they will get out of a person. All they are looking for are information supporting the elements of the crime a person is suspected of being involved in. The suspect's statement is usually reduced to a question/answer form or a narrative (and it can be handwritten), as follows:

Sample Hard Confession:

Sample Soft Confession:

Date occurred:
Time occurred:
Location occurred:

I, ___________ am ___ years of age and my address is _______________ with my phone being _____________

I left the bar at about midnight. I went out the back door and met Mr. Victim coming in. He bumped into me and we got into an argument. He picked up a piece of wood as if he was about to hit me, so I took out my gun and shot him. I think he was dead when I left.

I have read this statement and affirm the truth and accuracy of the facts contained herein. Completed this day at _______________ on ___________.

Witness:
Witness:
Person giving statement:

Date occurred:
Time occurred:
Location occurred:

I, ___________ am ___ years of age and my address is _______________ with my phone being _____________

I left the bar at about midnight. I went out the back door and saw Mr. Victim standing there. He spoke to me and we got into an argument and exchanged angry words with one another. I left later, and I'm sure he was alive when I saw him last.

I have read this statement and affirm the truth and accuracy of the facts contained herein. Completed this day at _______________ on ___________.

Witness:
Witness:
Person giving statement:

SELF-INCRIMINATION: RIGHT OR PRIVILEGE?

    The Fifth Amendment clause which reads "no person shall be compelled to be a witness against himself in any criminal case" bears a striking resemblance to the old phrase "nemo tenetur seipsum accusare" (no man is bound to accuse himself), but from a historical as well as contemporary standpoint, this has been easier said than done. Over the years, interpretation of this clause has resulted in expansion and contraction of this supposed (fundamental fairness) right, but given that the Supreme Court has not yet articulated its real meaning, it is perhaps best seen as a privilege, albeit a very broad privilege (one that protects not only direct answers to questions, but anything that would furnish a link in the chain of evidence needed to prosecute).

    First of all, the privilege against self-incrimination is a personal one. It applies to individual human beings only. A corporation cannot "plead the Fifth" in order to keep quiet. Secondly, it only applies in criminal cases. A witness cannot keep silent or withhold information in civil proceedings (which are not criminal in nature). Thirdly, it only applies in cases where the phenomenon of "compulsion" is present. This is similar to the Kastigar standard (Kastigar v. U.S. 1972). In order for something to be incriminating, it must not just reveal criminal activity, but produce the real likelihood or risk of imprisonment. Likewise, something is compelled only if there is a risk of imprisonment for refusal to testify or produce documents. Finally, the privilege preserves some interesting features of the American adversarial system. When a defendant refuses to testify in their own trial, neither the prosecutor nor the judge can make any adverse comments about it (indeed, the jury must also be cautioned not to make any undue inferences), unless, of course, the defense opens the door to it by commenting upon it in closing arguments.

    The study of self-incrimination law is the study of a balancing test with no name. It is fairly easy to decipher the following elements of this test:

The right of the government to compel citizens to furnish evidence and/or to select who will and who will not be prosecuted. The right of all citizens to NOT be compelled to furnish evidence against themselves or on what they are implicated in by threat of gov't sanction.

    On the one hand, the right of government to compel evidence has practical roots. No crimes would be solved, and no trials would be held, if the justice system operated purely on a voluntary basis of cooperative, come-as-you-are, walks-ins only basis. There must be some equivalent of the oath ex officio even in the most democratic of societies in order to compel essential information, appearances, testimony, and evidence. In our society, this is accomplished through the power of SUBPOENA (technically called subpoena ad testificatum but shortened to subpoena, and one to compel documents is called a subpoena duces tecum). This power is intended to make it the duty of all persons to appear and testify. Statutes regulate their form, issuance, and service, but generally, they are issued by the clerk, a judge, a magistrate, or a party's attorney. A subpoena duces tecum is often blank and filled out by the party. Subpoenas can be delivered in person, by mail, or by telephone.

    Another tool the government has is the power of IMMUNITY which has deep roots in American jurisprudence in recognizing the practical value of not prosecuting certain individuals who have important information to give but who are nonetheless implicated in the crime themselves. There are two types of immunity: transactional immunity which clears a person forever; and use immunity which clears a person from everything except independent evidence of having committed a crime. People immunized at the federal level are automatically immunized at the state level, and vice-versa, if derivative use immunity is granted. Accomplices (small fish) are often given immunity in order to convict the core criminals (big fish). If someone enters the WITNESS PROTECTION PROGRAM, they are given between $1500 and $2000 dollars a month, living expenses. They are given $5000 dollars to buy a car. They are given $6000 dollars for furniture. Their medical, dental, and most everything else is paid. It's another tool used to keep people in line in case they are needed to testify in something else, despite rules which prohibit testifying again.

    On the other hand, the right of all citizens to be protected from undue government intrusion, intervention, and coercion in their lives is paramount. According to the Jackson rule (Michigan v. Jackson 1986), nobody can waive their 5th Amendment rights if they have an attorney on retainer or have invoked their right to an attorney in clear, unequivocal terms. And, citizens have the right of PRIVILEGE. By statute, certain relationships are sacrosanct and confidential, including husband-wife communications, attorney-client, physician-patient. North Carolina does not recognize an accountant-client nor a reporter-source privilege. The Court has for the most part, however, adopted a literalist interpretation of 5th Amendment safeguards. The word "witness" (in no person shall be compelled to be a witness...) is interpreted strictly as safeguarding oral testimony only. The person's bodily evidence can and will be used against them. Also, there is the controversial "Contempt of Court" charge, which is one way to enforce a subpoena along with fees and other penalties. Criminal contempt is willful disobedience, resistance, or interference with a court's lawful process, order, or directive. Prosecutions and penalties for contempt vary by state.  Civil contempt carries an indefinite period of imprisonment (as long as the civil contempt continues). However, it's the things that do NOT carry self-incrimination protection that are more important to study:

THINGS THAT DO NOT CARRY A SELF-INCRIMINATION PROTECTION:

    It is important to note that Appearance Evidence has zero (or none) 5th Amendment protection. Bodily evidence will trigger the balancing test, and the right of government to know must be balanced with the right of individual privacy. Much of this kind of evidence is incriminating physical evidence: footprints, fingerprints, blood samples, DNA, hair, saliva, breath, voice, removal of a bullet, a diary, and records.

    Both invasion of one's body and Body Cavity Searches involve the invasiveness standard, and this is again, an example of a balancing test. The grounds for conducting any of these involve the following factors, taken from two important cases: Schmerber v. California 384 U.S. 757 (1966) and Winston v. Lee (1975). In Schmerber, the Court had no problem in drawing a blood sample from a driver who survived his own car crash, and in Winston, the Court ruled that surgery to remove a bullet lodged in a bone was too invasive.

INVASIVENESS STANDARD (Schmerber balancing test)
Government's need for evidence must outweigh person's need for privacy or bodily integrity.

Additionally:
(1) Search warrant usually needed unless exigent circumstances (and this for mouth only)
(2) Procedure is reasonable, medically sound, sanitary, done by a medical professional, and a routine, medical procedure
Person's need for privacy or bodily integrity outweighs the government's need for evidence.

Additionally:
(1) Must not endanger health
(2) Must not cause severe pain or physical discomfort
(3) Must avoid extreme humiliation or degrading
(4) Must not produce lasting trauma


The difference between strip searches and body cavity searches can be summarized as:
 

STRIP SEARCH REQUIREMENTS:
(1) Reasonable suspicion
(2) Same gender
(3) In private
BODY CAVITY SEARCH REQUIREMENTS:
(1) Probable Cause
(2) Warrant
(3) Schmerber balancing test
(4) No Exigent Circumstances

INTERNET RESOURCES
A Corel Presentations SlideShow on the Self-Incrimination Privilege (requires plug-in)

FindLaw: Fifth Amendment Rights

FrontLine: How Snitches are a Key Part of Prosecutorial Strategy

Interrogating a Suspected Terrorist
John Reid on False and Coerced Confessions
You're Guilty Until Proven More Guilty

PRINTED RESOURCES
Baker, L. (1983). Miranda: Crime, Law and Politics. NY: Antheneum.
Brandt, C. (1991). The Right to Remain Silent. NY: St. Martin's.
Cipes, R. (1966). Crime, Confessions, and the Court. Atlantic Monthly 55.
Garner, T. & T. Anderson. (2001). Criminal Evidence. Belmont: Wadsworth.
Grano, J. (1979). Free Will and the Law of Confessions, 65 Virginia Law Review 859-945.
Gudjonsson, G. (1992). The Psychology of Interrogations, Confessions and Testimony. NY: Wiley and Sons.
Helmholtz, R. (1998). The Privilege against Self Incrimination: Its Origins and Development. NY: LA Lawyer Books.
Inbau, F., J. Reid, & J. Buckley. (1986). Criminal Interrogation and Confessions. Baltimore: Williams & Wilkins.
Leo, R. (1992). From Coercion to Deception. Crime, Law & Social Change 18: 35-59.
Leo, R. (1996a). Inside the Interrogation Room. Journal of Criminal Law and Criminology 86: 266-303.
Leo, R. (1996b). Miranda's Revenge: Police Interrogation as a Confidence Game. Law and Society Review 30: 259-88.
Leo, R. (1996c). The Impact of Miranda Revisited. Journal of Criminal Law and Criminology 86: 621-92.
O'Hara, C. & L. O'Hara. (1980). Fundamentals of Criminal Investigation. Springfield: Charles Thomas.
Rutledge, D. (1994). Criminal Interrogation: Law and Tactics. Placerville, CA: Copperhouse.
Zulawski, D. & D. Wicklander. (1993). Practical Aspects of Interview and Interrogation. Boca Raton: CRC Press.

Last updated: Mar. 12, 2013
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T.  (2013). "Confession and Self-Incrimination," MegaLinks in Criminal Justice. Retrieved from http://www.drtomoconnor.com/3000/3000lect05.htm.