Chapter 6 Post-arrest Interrogations

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

CHAPTER 6 Post-Arrest Interrogations

It is obviously not the purpose of this book to teach the art of interrogation. Whole volumes have been dedicated to that topic. There are, however, several considerations that should be taken into account by a well-prepared investigative/prosecutive team. These include timing, the recording of the suspect's statement, and restrictions placed upon law enforcement by statute and the courts. The following discussion relates to custodial interrogations. It assumes that the required rights advisements have been administered.

Timing

If the timing of the arrest is flexible and the post-arrest statement of the defendant is critical to a successful prosecution,¹ then thought should be given to planning the arrest when the interrogation of the defendant is most likely to yield positive results. Such a point in time can occur, for example, when surveillance of the suspect reveals him to be sinking into a depressed, guilt-ridden state. The defendant may be so wracked by an otherwise out-of-character act that he actually wants to talk about the crime.

Another such point in time might be when the proverbial "smoking gun" piece of evidence has been recovered. This could be a murder weapon that has been discarded, or a conversation with a trusted associate (now informant) who has allowed the defendant's admissions about the crime to be recorded. The presentation of such evidence to the defendant can often result in a full confession.

Federal Cases

Prosecutors and investigators conducting federal homicide investigations—or investigations that may become federal—must be mindful of the time restrictions in conducting post-arrest interrogations in federal cases. These restrictions have their origins in Federal Rule of Criminal Procedure 5(a)(1), which provides that an arresting officer must take the prisoner before a magistrate judge without unnecessary delay, and in two decisions that have become known as the McNabb-Mallory Rule.

McNabb v. United States² saw the Supreme Court use its supervisory powers to exclude a confession that was obtained after an unreasonable delay in presenting the defendant before a magistrate. In Mallory v. United States,³ the Court suppressed a confession made seven hours after the defendant's arrest, finding such delay to be unreasonable.

In response to these decisions, Congress enacted 18 U.S.C. § 3501(c), providing that a confession "shall not be inadmissible solely because of delay in bringing [the defendant] before a magistrate . . . [if the] confession is found by the trial judge to have been made voluntarily" and "if the confession was made by the defendant within six hours immediately following his arrest." The statute also provides that the six-hour limitation "shall not apply in any case in which the delay in [presentment]" beyond six hours is found by the trial judge to be reasonable, "considering the means of transportation and the distance to be traveled to the nearest available magistrate judge."

On April 6, 2009, the Supreme Court decided Corley v. United States.⁴ At argument, the government claimed that because § 3501(a) made a confession "admissible" if "voluntarily given," it entirely eliminated McNabb-Mallory with its bar to admitting even a voluntary confession if given during an unreasonable presentment delay. Corley argued that § 3501(c) only made McNabb-Mallory inapplicable to confessions given within six hours of an arrest. The Court agreed with Corley, holding that Congress, in enacting the statute, meant "to limit, not eliminate" McNabb-Mallory.

While Corley provided McNabb-Mallory with renewed vitality, it also clarified the rule's application. After Corley, a district court may not suppress a confession for "unnecessary delay" in bringing an arrestee for presentment to a magistrate when the confession was (1) made within six hours of arrest,⁵ voluntary, and otherwise admissible under the rules of evidence; or (2) voluntary and made after six hours but within a delay found to be reasonable "considering the means of transportation and the distance to be traveled to the nearest available [magistrate]." The Corley Court emphasized, however, that "delay for the purpose of interrogation is the epitome of 'unnecessary delay.'"⁶

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