Suppressing Confessions

Suppressing Confessions

When someone hears that a criminal defendant has made an incriminating statement, it is only natural to assume the defendant must be guilty. Just because that is a natural reaction, does not mean it is correct.

While the majority of police officers are decent people, in any group there are always exceptions. What the police do during an interrogation weighs heavily on whether a defendant’s statement will be able to be used by the prosecution at trial and whether the incriminating statement was a real confession. A confession must be made intelligently, voluntarily and knowingly to be admissible.

Intelligent Waiver

People sometimes misconstrue this requirement to mean that the decision to waive one’s right to remain silent must be a good decision. To the contrary, it can be a terrible decision and still be an intelligent waiver in the eyes of the law. What this requirement means is that the defendant has the ability to understand what he is doing. A defendant who is mentally impaired, perhaps by a brain injury or mental health disease, would be less likely to be able to make an intelligent waiver of his or her rights, particularly if the police use deception to trick a vulnerable person, such as by claiming they have the defendant on video committing the crime. The argument can sometimes be made as well that a defendant who is significantly impaired by alcohol or drugs did not make an intelligent waiver of their rights.

Voluntary Waiver

The statements of a defendant must have been voluntarily made to be admissible at trial. This requires that the accused had the option of not making any statement. The police must not have beaten, threatened or coerced the defendant into speaking. It may seem hard to believe that the very people hired to protect us might use physical violence, threats or even threaten an accused’s family members in order to get him to make a statement, but sadly that has been proven to be the case in more than a few instances. Using video recording devices during interrogation certainly lessened the instances of such conduct. Now, with the new body-worn cameras that are starting to be used by large police departments, hopefully such conduct will be reduced even further.

Knowing Waiver

If an accused does not know they have the right to remain silent or the right to an attorney, how could he or she validly waive that right? That is the question the U.S. Supreme Court faced 50 years ago. The decision in Miranda resulted in the requirement that a person who is in custody be read his rights, now commonly referred to as Miranda rights. Though the requirement that a person in custody be read their rights prior to being questioned is well-settled, the question of when someone is actually in custody has been debated ever since the Miranda decision was published. If the police would simply read Miranda rights to every person they question, whether a waiver of those rights was knowing would be simple to determine. Unfortunately, the police intentionally do not read everyone their rights, because doing so would result in far fewer incriminating statements being made.

Whether an accused is actually in custody is determined by examining the circumstances surrounding the interrogation and judging whether a reasonable person in the suspect’s circumstances would have felt he or she was allowed to leave. If the defendant is ordered to come with the police, brought to the police station by the police, handcuffed in a locked interrogation room, confronted with accusations for several hours, and never told he is not in custody, it is quite clear that a reasonable person would not feel free to leave and thus the reading of Miranda rights must occur before the police can ask the defendant any questions about the crime being investigated.

Sometimes though, the police will try to circumvent the requirements of Miranda by taking a statement from the defendant then later, only after the defendant has made incriminating statements, reading the defendant his or her rights and taking a second statement. This is commonly referred to as ‘delayed Miranda.’ This tactic is used to manipulate defendants who do not understand their rights and it works because once someone makes incriminating statements, most people will feel it is futile to not repeat those statements.

Though the failure to administer Miranda warnings before eliciting a confession does not automatically render inadmissible a subsequent statement made after Miranda warnings are read, courts are rightfully suspicious of this tactic and will closely examine any subsequent admissions. When the delay in reading Miranda is a result of intentional tactics, the time delay is lengthy, and the tactic is used against a defendant who has little experience with the criminal justice system or who may have mental deficiencies, the courts are far more likely to determine that the defendant did not knowingly waive his rights and that finding will prevent the prosecution from using the statements against the defendant in trial.

So the next time you hear that someone ‘confessed,’ ask what the circumstances were under which the accused made the incriminating statement. You may be surprised at the tactics used to try to coerce the defendant to speak.

If you have made an incriminating statement yourself, make sure you hire a criminal attorney in San Diego who understands that not every incriminating statement is valid, accurate, and most important, admissible.


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