Section 14.14 Interrogation

• Library: Evidence 2017

A. (§14.14) Interrogation

The first aspect relating to the privilege against self-incrimination pertains to interrogation by police. The Fifth Amendment does not work to prevent police officers from asking questions. Rather, it prevents in-custody statements given to officers from being admitted into evidence when the statements are not knowingly and voluntarily given. A short review of caselaw explains the rationale behind the exclusion of “coerced” confessions. Essentially, provided a person is deemed to be “in custody” and is questioned, current precedent dictates that law enforcement must notify the accused of their Miranda rights including, among others, the right to have counsel present and the right to remain silent. But recent developments have altered the “right to remain silent” such that it now must be specifically invoked. A brief review of history is necessary to understand the admissibility of any particular statement uttered by a potential suspect.

In 1897, the Supreme Court explained that the “erection of additional barriers for the protection of the people against the exercise of arbitrary power” dated back to 17^th century England. Bram v. United States, 168 U.S. 532, 544 (1897). While noting that an admission or confession ranked high on the scale of incriminating evidence, the Court nonetheless explained that any such statement must be “voluntary and freely made.” Id. at 544.

In 1936, the Supreme Court utilized a Fourteenth Amendment due process argument to explain that extracting a confession through beatings or other physical or psychological torture invalidated the confession because doing so was “revolting to the sense of justice.” Brown v. State of Miss., 297 U.S. 278, 286 (1936).

In 1961, the Court explained our legal justice system as being “‘accusatorial . . . not . . . inquisitorial’” and, as such, methods used to obtain a confession must “fall within the broad constitutional boundaries imposed by the Fourteenth Amendment’s guarantee of fundamental fairness.” Miller v. Fenton, 474 U.S. 104, 110 (1985) (quoting Rogers v. Richmond, 365 U.S. 534, 541 (1961)).

While retaining the due process argument, the Supreme Court granted additional protection by holding that the Fifth Amendment privilege against self-incrimination is binding on the states via the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6 (1964). The Malloy Court further clarified that the proper test of the constitutionality of a confession was not whether the conduct of the police was shocking, but whether the confession itself was made freely and voluntarily. Id. at 7. The Malloy Court referred back to the Bram, 168 U.S. 532, standard by noting that a confession must not be “‘extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.’” Id. (quoting Bram, 168 U.S. at 542–43).

Having extended the Fifth Amendment to the states, the Court next ruled that the Fifth Amendment privilege was not limited to an in-court forum but also applied to custodial interrogations. Miranda v. Ariz., 384 U.S. 436, 478 (1966). The Court’s rationale was that “there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their...