The Interrogation Process

and the Law

Chapter 10

Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
10-1
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 The United States
 The fundamental
principle on which the
United States’ legal
system rests is the idea
that law is created by
the people for the
purpose of protecting
citizens against tyranny
and lawlessness, and to
protect freedom

10-2
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Rule of Law
 Those that execute the law must
rely on the application of known
principles or laws, and those
principles must be applied
uniformly and fairly to all citizens
 Also referred to as the supremacy
of law

10-3
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Confession Admissibility
 The four prong
test for the
admissibility of a
confession is
contained in the
Fourth, Fifth,
Sixth, and
Fourteenth
Amendments

10-4
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Fifth Amendment of the United
States Constitution
 No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury,
except in cases arising in the land or naval
forces, or in the Militia, when in actual service in
time of War or public danger; nor shall any
person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a
witness against himself, nor be deprived of
life, liberty, or property, without due process
of law; nor shall private property be taken for
public use, without just compensation.
10-5
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Fifth Amendment Protections
 The Fifth  Compel means to
Amendment cause or bring about
provides by force, threats, or
protection from a overwhelming
person being pressure
incriminated by  Testimonial is a
compelled communication that
testimonial explicitly or implicitly
communication relates or discloses
information that is
the expression of
the person
10-6
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Fifth Amendment
Considerations
 The protection
against self-
incrimination also
permits a person to
refuse to testify
against himself or
herself at a criminal
trial in which they are
a defendant

10-7
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 What is not Covered by the
Fifth Amendment
 Requiring a person in custody to stand
or walk in a police lineup, to speak
prescribed words, to model particular
clothing, or to give samples of
handwriting, fingerprints, or blood does
not compel him to incriminate himself
within the meaning of the clause
(Schmerber v. California, 1966).

10-8
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Totality of the Circumstances Test
 The totality of the  The court will
circumstances test typically look at
is one where the all of the physical
court focuses on or psychological
all of the pressures to
circumstances determine if they
surrounding a unduly influence
situation, rather the accused to
than any one make a
factor statement

10-9
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Miranda Rights
 These procedural safeguards must
be stated prior to questioning:
 The person must be warned that he has
a right to remain silent,
 That any statement he does make may

be used as evidence against him,

 And, that he has a right to the presence

of an attorney.
 If he cannot afford an attorney, counsel

will be provided at government expense

10-10
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 When are Miranda Warnings
Required?
 Miranda warnings or their equivalent must
be given prior to questioning (direct or
indirect)
 These rights do NOT have to be provided
verbatim (word for word)
 Which is initiated by a state actor
 And, that person has been taken into police
custody or otherwise deprived of his
freedom of action by the police in any
significant way

10-11
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 When is a Waiver of Miranda
Rights Valid?
 There are three  The waiver must
measures of be made
whether the voluntarily
individual has  The waiver must
properly waived his be made
or her right to knowingly
remain silent  The waiver must
be made
intelligently
10-12
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 The Voluntary Requirement
 The Miranda waiver must be made
voluntarily
 The government must prove that the waiver
was not the result of coercion or other
factors which adversely influenced the
defendant’s exercise of free will
 Torture, threats, promises of leniency, or
other inducements may affect the
voluntariness of a waiver
 If the person is intoxicated to the point that
he cannot understand his constitutional
rights, the waiver is not valid

10-13
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 The Knowing Requirement
 The Miranda waiver must be made
knowingly
 The government must prove that the
defendant knew and understood his rights
 Providing Miranda rights to a person who
does not speak English, for example,
cannot result in a knowing waiver of those
rights
 If the defendant is suffering from mental
disability that renders him incapable of
understanding, a waiver may not be valid

10-14
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 The Intelligence Requirement
 The Miranda waiver must be made
intelligently
 The government must establish that the
defendant intelligently relinquished those
rights, that he understood he was
agreeing to answer questions
 This does not suggest that the suspect is
intelligent or has any particular IQ in order
to make an intelligent waiver of his rights

10-15
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Some Exceptions to the
Miranda Requirement
Voluntary Statements
 Statements initiated

voluntarily by the
defendant when there is
no interrogation DO
NOT require Miranda
Rights regardless of
whether the suspect is
in custody or not

10-16
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Some Exceptions to the
Miranda Requirement
Public Safety Exception
 In situations where there is immediate or

impending danger to the public safety,

police may arrest a suspect and ask
questions to elicit information to remove
the threat to the public WITHOUT
providing Miranda Rights

10-17
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Right to Counsel Under Miranda
 If a suspect is in  The waiver for
custody and an attorney
subjected to under Miranda
interrogation must also be
requests an made
attorney ALL voluntarily,
QUESTIONING knowingly, and
MUST STOP intelligently
IMMEDIATELY!

10-18
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Sixth Amendment of the U.S.
Constitution
 In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be
informed of the nature and cause of the
accusation; to be confronted with the
witnesses against him; to have compulsory
process for obtaining witnesses in his favor,
and to have the assistance of counsel for his
defense.

10-19
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 The Right to Counsel: the Sixth
Amendment
 A person who has This right attaches:
been formally  Through a formal
charged with a crime charge in court
CANNOT be  A preliminary hearing
interrogated for that
 An indictment
crime without an
 An information
attorney present,
whether they are in  An arraignment

custody or seen on
the street

10-20
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Fourteenth Amendment of the
U.S. Constitution
 Section 1. All persons born or naturalized in
the United States and subject to the
jurisdiction thereof, are citizens of the
United States and of the State wherein they
reside. No State shall make or enforce any
law which shall abridge the privileges or
immunities of citizens of the United States;
nor shall any State deprive any person of
life, liberty, or property, without due process
of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
10-21
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Fourteenth Amendment
Interrogation Application
 Through the
Fourteenth
Amendment the
rules that are
constitutionally
required apply
equally to both
Federal and State
police action
through the Due
Process Clause
10-22
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 What is the Exclusionary Rule?
 It requires that evidence obtained by
police in violation of the Fourteenth
Amendment’s due process clause, the
Sixth Amendment’s right to counsel
provision, the Fifth Amendment’s
privilege against self-incrimination or
the Fourth Amendment’s protection
from illegal search and seizure would
be excluded from use in trial
against the defendant.

10-23
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 The Exclusionary Rule is Born
 Weeks v. U.S., 1914
 The United States Supreme Court
first stated that evidence secured
through illegal search and seizure
and in violation of the Fourth
Amendment would be barred from
use in federal prosecutions

10-24
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 The Exclusionary Rule is
Applied to the States
 Mapp v. Ohio, 1961
 The United States Supreme
Court made the Exclusionary
Rule applicable to the states
through the Fourteenth
Amendment’s Due Process
Clause

10-25
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 What is the Fruit of the
Poisonous Tree Doctrine?
 The illegal search or
interrogation taints the evidence
obtained, as well as facts
discovered by the processes
initiated by the unlawful
procedure and that evidence
must be also excluded!

10-26
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Fruit of the Poisonous Tree
Doctrine
 This exclusion is of the evidence
that is indirectly obtained when
one’s rights are violated
 Sometimes called derivative or
secondary evidence
 It is the evidence resulting from an

illegal search or illegal interrogation

10-27
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 When is a Statement Compelled?
 In most cases the  A suspect may make
statement is a valid waiver of
compelled if the Miranda rights, but
following was used to the statements may
be violating the
obtain a Miranda Fourteenth
waiver: Amendment based
 There was a on coercive tactics
promise of leniency used by the police to
 There were threats obtain the statement
to arrest members
of a suspect’s family

10-28
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Factors in Determining
“Coercive”
 Age of the suspect
 Experience of the suspect
 Intelligence or mental illness
 Alcohol or drug intoxication
 Physical condition of the suspect
 Length of the interrogation

10-29
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 The Fourth Amendment to the
U. S. Constitution
 The right of the people to be secure in
their persons, houses, papers, and
effects, against unreasonable
searches and seizures, shall not be
violated, and no Warrants shall issue,
but upon probable cause, supported
by oath or affirmation, and particularly
describing the place to be searched
and the persons or things to be seized

10-30
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Fourth Amendment
Interrogation Application
 Since the application  To pick-up a suspect
of the exclusionary and take him to the
rule to the states, a police station for
confession, statement, interrogation the
or admission, which is officer must have
made by a person probable cause for
who is illegally in an arrest of that
custody may be person OR the
excluded because it is detainment must
evidence obtained as be voluntary
a result of an unlawful (Kaupp v. Texas,
seizure 2003)

10-31
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Fourth Amendment
Considerations
 It is established law
that the Fourth
Amendment
protects against
arbitrary arrests
(Steagald v. U.S.,
1981).

10-32
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Miranda and the
Fourth Amendment
 Giving Miranda warnings does not
make the detention legal
 Any subsequent confession is
subject to the exclusionary rule
 A violation of the Fourth and
Fourteenth Amendments cannot
be remedied by Miranda warnings
alone

10-33
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Police Power of Arrest
 When a police officer  When the police
has reasonable officer personally
belief, based on facts sees someone
and circumstances, commit a crime
that a person has  When an arrest
committed or is
warrant has been
about to commit a
issued
crime
 This is the arrest

based on probable
cause

10-34
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458
 Probable Cause
 Probable  Personal
cause is based observations
on the totality  Hearsay
of the  Prior criminal
circumstances record, furtive
and is more
conduct,
than just the evasive
suspicion of answers, or the
the officer area

10-35
Smart Talk: Contemporary Interviewing and Interrogation © 2007 Pearson Education, Inc.
By Denise Kindschi Gosselin Upper Saddle River, NJ 07458