Monday, January 9, 2012

Anatomy of a Confession

One of the first things I realized when I started as an ADA was that I didn't know anything.  Criminal law classes, the bar exam, and television did not prepare me for what hid behind door number one.

That is especially true when dealing with confessions.

Detective Stabler from Law and Order SVU doesn't grab a suspect and read him his Miranda warnings on the street as we see on television.  Suspect statements usually aren't videotaped.  Many times there's not even a clear line between who is a suspect and who is a victim.  This week we will discuss confessions, some techniques that are legally permissible to obtain confessions, and false confessions.

As always, we must start with the basics to explain the more advanced topics.

What are the Miranda Warnings?

The police must inform the suspect of the following warnings:

1) You have the right to remain silent
2) Anything you say can be used against you in a court of law
3) You have the right to speak to an attorney and to have one present during questioning
4) If you can't afford one, the government will provide one for you at no cost

These are the minimum requirements.  There is no requirement as to how an officer must deliver these.  The officer can tell the suspect, read them from a card, put a sheet of paper in front of them containing them and read them at the same time, go through each one in detail on video, or use any combination they can think of.

When are Miranda Warnings Required?

Miranda warnings are only necessary when a person is in custody and the police are interrogating him.  Each of these components has a legal definition that over forty years of legal opinions has wrestled with.  For our purposes, custody means when an average person in the defendant's position would feel they are not free to leave.  Interrogation is when the police are asking pointed questions concerning a crime.

In practical terms, this means that there are only limited times when Miranda warnings are required when speaking to a suspect.  An officer who approaches a suspect on the street and starts asking him about the murder he just committed does not need to provide them if the defendant is free to go.  An officer who arrested the same defendant, put him in handcuffs, and brought him to the precinct, but only asks the defendant for basic pedigree information does not need to provide them.  If the suspect just starts blurting out a confession without police questioning?  No Miranda warnings necessary.

They are required only when a suspect is in custody and an officer is interrogating him.  Every case presents a unique situation concerning when a suspect is in custody and what kind of questions constitute an interrogation.  These issues are litigated prior to trial and the court makes a determination whether the police followed the law and the confession is admissible or whether they didn't and it is inadmissible at trial.

Miranda warnings are not required in every arrest.  They are only necessary if the police question the defendant.  If there's no questioning, then there's no warnings.  This cuts against what we've learned from actor portrayals, but these warnings are not required when a person is merely arrested.  They are only required if both the defendant and the police want to speak to each other.

There are thousands of cases that deal with specific issues about Miranda and the right to counsel during questioning.  It is too voluminous to discuss in this general overview.  As always though, if you have a specific question drop me a note and I'll do my best to answer it.

On Wednesday, we'll discuss interview techniques and how they affect the court's view of a confession.


  1. Do you see many defendants getting released because of improperly given Miranda instructions? This is a great post by the way, very interesting! I had no idea that they weren't required during an arrest in all circumstances. Fascinating! Do the police officers have to say something though like we're placing you under arrest?

  2. Very interesting. I didn't realize they could put a piece of paper in front of you with the miranda on it. Just to clarify (since arrest can mean two different things), when you say "custody" do you mean once they have actually been charged and taken to the station? It would seem miranda wouldn't apply when someone is just detained and handcuffed at the scene temporarily (implying that the police later release him/her and never take them to the police station).

  3. @Kristy: Custody is different in every case. The legal standard is whether a reasonable person innocent of any crime would consider themselves in custody. It does not mean formal arrest and charges. It also depends on the facts. Cuffs usually means custody. Cuffs and questioning in the back of the police car mean custody. There are situations where it may not if the detention is extremely brief and made only while the police clafiy the situation (like a large fight).

    The police can use Miranda on a sheet of paper, but the courts still require us to prove the police gave the warnings and that the defendant understood them. Proper procedure should be for the police to read the warnings to the suspct as he follows along and ask if he understands. I left that part out of the initial post. Thanks for picking it up.

    @Lisa: I don't see many cases where defendants are released due to unlawful questioning. Even if the court suppresses the defendant's statements we usually have enough other evidence to go forward with. Cases that hinge only on a defendant's confession are a rarity. Only 15% of cases actually have a confession to the crime. Most of the statements we see are alibis or general denials that we then try and disprove.

    There are not magic words the police must use to describe an arrest to a suspect. Usually, they just start the paperwork, fingerprinting, and mugging (mugshot photo) and then the suspect asks what they are charged with. It isn't until the arraignment that the defendnat is required to know the charges against him.

  4. Nice job. I understand what you have written. Very clear and concise.