Confessions and the 5th Amendment

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.


Voluntariness of Confessions

Test for Due Process/Voluntariness of 5th Amendment

The due process of 5th amendment test is: 1) was there coercive police conduct, and 2) did the conduct overbear the will of the accused? If the answer to both is yes, then the confession was involuntary.

Coerced Confessions

Examples of coerced confessions include beating and torturing someone until they confess (Brown v. Mississippi), and confessing when there is even a vague threat of violence by third parties (Arizona v. Fulminante).

Mental Health

Even if a person suffers from mental illness, if their confession is completely voluntary, then it's admissible. Otherwise, the Court states, there would have to be a new right of a criminal defendant to confess his crime only when totally rational and properly motivated. If the reason for the confession (drugs, alcohol, mental illness) is not the cause of the police, then it's admissible (Colorado v. Connelly).


Proof of voluntariness is based on the preponderance of the evidence, given the totality of the circumstances. The prosecution bears the burden so if they don't provide evidence of voluntariness, they can't provide a confession to the court (People v. Thomas, Jackson v. Denno).

Deprivation of Bodily Needs

The longer the interrogation, the more likely it'll be deemed involuntary. This is particularly true when the suspect has been denied sleep, food, water, and/or access to a bathroom (Ashcroft v. Tennessee, Payne v. Arkansas).

Lying to Suspect

Police may lie to the suspect as long as the lie isn't coercive. If a person confesses after police say cooperation will keep them out of jail, but not cooperating could mean significant jail time, then the confession is likely involuntary (Lynumn v. Illinois). Telling a suspect an accomplice already confessed doesn't make a confession involuntary, though. (Leyra v. Dennis). Neither does an officer acting as a friend (Frazier v. Cupp).

Education Level

Having a low education level (5th-grade level) makes it more likely the confession will be deemed involuntary (Payne v. Arkansas, Culombe v. Connecticut). However, an 11th-grade education (Butler), or completing even one year of law school makes the confession more voluntary (Crooker v. California).


Age matters when considering whether a confession is voluntary and if Miranda warnings are required. Children as old as 13, when subjected to police questioning will likely feel pressure to confess where an adult might feel free to leave (JDB v. North Carolina).

Non-State Actor

If there is no state actor, then there is no constitutional issue. Therefore, if a non-state actor coerces a confession, it's admissible.

Interrogation Definition

Miranda is necessary to prevent compulsory self-incrimination when in custody and interrogated. Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. This include words or actions the police should know are reasonably likely to elicit an incriminating response (Rhode Island v. Innis).

Confidential Informants

If not coerced, then voluntary statements to undercover agents are not the product of interrogation. Therefore, confessions to informants when not coerced are admissible. Also, strategic deception without coercion is fine. (Illinois v. Perkins). However, if comments happen after adversary proceedings begin, then the recordings are not admissible without an attorney present (Massiah).

Incriminating Statements in Presence of Officer/ Recording Conversation

When suspects voluntarily speak with non-government people and confess to crimes, and police record the conversation, those confessions are admissible and not the functional equivalent of an interrogation. This is true even if the suspect previously requested an attorney because it's not an interrogation by the police (Arizona v. Mauro).

Non-Custodial Questioning

Police can question people without Miranda as long as the person isn't in custody.


Miranda Rights

Miranda Components

Miranda consists of 1) Right to remain silent, 2) Anything you say can and will be held against you, 3) You have a right to an attorney and one will be provided if you can't afford one.

Unspoken Rights in Miranda

There are a few unspoken rights in Miranda. If the suspect remains silent, that silence can't be used against him. If the suspect waives his rights, he can still invoke Miranda rights later at any time. Failure to request a lawyer is not a waiver to a lawyer. A waiver of rights cannot be assumed by the suspect's silence. The suspect must expressly waive her rights (Miranda v. Arizona).

Miranda isn't Obligated

Police are not obligated to give Miranda rights, but if they don't, they can't use any confessions that come from custodial interrogations.

Custody Definition

The suspect must be in custody for Miranda to apply. The determination of custody depends on the objective circumstances of the interrogation, not on subjective views (Stansbury).

Passage of Time/ Scrupulously Honoring Invocation of Right to Remain Silent

Scrupulously honoring the right to cut off questioning can be met through a number of factors, including: stopping interrogation immediately, a significant passage of time, asking about a different crime, re-reading the Miranda rights, a different officer asking the questions, and/or the questions taking place in a different setting. Waiting almost two hours is long enough to re-engage. Invoking the right to remain silent isn't a permanent invocation (Michigan v. Mosley).

Invoking Right to Counsel

Once a suspect invokes a right to counsel, the police cannot further interrogate until counsel is "made available" to him, and the counsel must be present during interrogation--consultation is not enough. The only exception is if the suspect is the one who re-initiates with the police (though Justices Powell and Rehnquist don't believe waivers should be determined by who speaks first) (Edwards v. Arizona, Minnick v. Mississippi).

Witness Discovered as Result of Unwarned Statement by Defendant

No suppression of testimony of a witness discovered as the result of an unwarned statement by the defendant (Tucker).

Invoking Right to Remain Silent

To cut off questioning, suspects must say they want to remain silent or that they do not want to talk to police. Treating ambiguous or equivocal acts, omissions, or statements as an invocation of Miranda rights is not enough (Berghuis).

Badgering the Suspect

Prevention of such badgering is the justification for the Edwards rule, and where that concern does not apply, neither does Edwards. (Shatzer)

Voluntarily in Coercive Environment

Being in a coercive environment voluntarily doesn't count as being in custody. (Oregon v. Mathiason).


Miranda Waiver

Waiver and Totality of the Circumstances

Whether there is a waiver is determined by the totality of the circumstances; this applies even to juveniles. However, the factors are only relevant as they relate to police coercion/overreaching. (Fare v. Michael C.). Waiver invocation must be voluntary, knowing, and intelligent (Butler, Edwards v. Arizona).

Withholding Information from the Suspect

Suspects can voluntarily waiver even if the police withhold information from the suspect about an attorney trying to reach her. There is no violation because events occurring outside the presence of the suspect and unknown to the suspect have no effect on the suspect (Moran v. Burbine). Likewise, police have no duty to inform suspects of the crime their suspected committing in order for a Miranda waiver to be valid (Spring v. Colorado).

Prosecutor's Burden

Government officials have the heavy burden to show the suspect had the knowledge of his rights, that he comprehended them prior to waiving his rights, and that he voluntarily waived them (North Carolina v. Butler).

Course of Conduct

Unless a suspect in custody expressly invokes his rights (either in speaking or in writing), police may question him. If he then goes on to make an incriminating statement, even after being mostly silent for almost three hours, the statement is admissible. Being mostly silent for long periods of time is not the same as invoking a right to remain silent. The course of conduct of speaking even after knowing of one's right to remain silence suggests the suspect willingly waives his right (Berghuis v. Thompkins).

Break in Custody

A 14-day break-in-custody provided plenty of time for a suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody. Though, Stevens concurrence notes 14 days shouldn't always be dispositive. If the suspect is denied counsel for 14 days, then there is no reason to believe the coercive effects are magically gone on day 15 (Maryland v. Shatzer).

Physical Evidence

Physical fruits are admissible even if derived from unwarned expression. Miranda protects against the 5th amendment, not the 4th, and therefore doesn't apply to physical fruits. Police don't violate the Constitution or even Miranda by failing to warn. It just means unwarned statements must be suppressed so as to guard against coerced self-incrimination (US v. Patane).

Miranda Exceptions and Remedies

Public Safety

Questions necessary to secure police officers' own safety or the safety of the public can be asked prior to Miranda warnings. Statements obtained by such questions can be used against the criminal defendant (NY v. Quarles).

Unintentional 2-step Interrogation

If 2-step interrogation was not deliberate, and the first unwarned confession wasn't coerced, then information obtained in the second, warned confession is admissible. The information from the first confession is inadmissible and the suspect may invoke or waive his rights during the second interrogation (Oregon v. Elstad).

Deliberate 2-step Interrogation

If 2-step interrogation was deliberate, and the first unwarned confession was coerced and meant to undermine Miranda by leading to a second, warned confession, then all the information from both confessions are inadmissible unless curative measures are taken between the two confessions. Examples of potential curative factors include a significant passage of time, different locations, completeness and details of questions and answers between the two interrogations, continuity or discontinuity of officers asking the questions, and whether the second questioning was continuous with the first. The ultimate question is whether the midstream warning effective enough to accomplish the objective goal given the specific facts of the case. Kennedy would require the information to be suppressed unless there were curative measures (Missouri v. Seibert).

Exclusion Under Miranda

The basic rule from Miranda is that unwarned custodial confessions are inadmissible in criminal trials against the person confessing.