1. Explain the role of confessions in the criminal investigation process, the potential challenges and problems presented by confessions, and the explanations for false confessions.
    
2. List out the protections provided by the Fifth Amendment right against self-incrimination, and describe what is and is not protected by the Fifth Amendment.
    
3. Explain how Miranda v. Arizona protects the Fifth Amendment rights of individuals in police custody.
    
4. Describe the factors considered in determining whether an individual is subjected to custodial interrogation.
    
5. Explain the public safety exception.
    
6. Discuss how the Miranda rights are to be read, and the requirements for invoking the Miranda rights.
    
7. Describe the test for the waiver of the Miranda rights, and differentiate between explicit and implicit waiver.
    
8. Explain “question first and warn later.”
    
9. Describe the legal tests for a waiver following invocation of the Miranda rights.
    
10. Explain the test for interrogation.
     
11. List out the Sixth Amendment protections provided to defendants in police custody.

SUMMARY: Confessions are essential in the investigation and detection of crime. The procedural standards governing confessions are based on the following:

• Due Process Clause of the Fourteenth Amendment.
• Fifth Amendment right against self-incrimination.
• Sixth Amendment right to counsel.

The three constitutional approaches to confessions are summarized below:

Due process. The due process voluntariness test requires that a confession be the result of a free and voluntary choice and not be the product of compulsion. Courts decide whether a confession is voluntary by analyzing the totality of the circumstances. This test is criticized for failing to provide law enforcement officials with clear standards to guide their decisions and is difficult for courts to apply.

Miranda. The Fifth Amendment provided the basis for Miranda v. Arizona (1966). Miranda established that individuals subjected to custodial interrogation are to be informed that anything they say may be used against them and that they have the right to silence and the right to an attorney, appointed or retained. The Miranda warning is intended to provide individuals with the necessary information to resist the inherent pressures of custodial interrogation. There are a number of central components of the Miranda rule.

Custodial interrogation. Miranda is triggered by custodial interrogation. This is the threshold determination and occurs when there is a custodial arrest or the functional equivalent of a custodial arrest. In determining whether there is the functional equivalent of custodial interrogation, judges ask whether a reasonable person, based on the totality of the circumstances, would believe that the individual is in police custody to a degree associated with a formal arrest. Courts typically ask whether a reasonable person would feel free to leave. In J.D.B. v. North Carolina, the Supreme Court held that a juvenile’s age should be considered in determining whether he or she was subjected to custodial interrogation.

Public safety. In New York v. Quarles, the U.S. Supreme Court recognized a public safety exception to Miranda. This exception permits the police to ask questions reasonably prompted by a reasonable concern with public safety without first advising a suspect of his or her Miranda rights. The Supreme Court concluded that a reasonable concern with the safety of the police or the public outweighs the interest in protecting the suspect’s right against self-incrimination.

Miranda warning. The three-part Miranda warning is essential for informing suspects of their rights and of the consequences of waiving their rights. The Miranda judgment states that the warnings are to be recited in “clear and unequivocal terms” and that a suspect is to be “clearly informed” of his or her rights. The Supreme Court has provided broad guidance to the police on how to recite the Miranda rights. Miranda is a flexible formula. The test is whether the warnings viewed in their totality convey the essential information to the suspect.

Invocation of rights. Following the reading of the Miranda rights, a defendant has the opportunity to assert his or her right to a lawyer or right to silence or to waive these rights. In Davis v. United States (1994), the Supreme Court held that an individual is required to “articulate his desire to have counsel present . . . sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” The Court reasoned that a rule that required the police to cease questioning following an ambiguous statement by the accused would transform Miranda into a “wholly irrational obstacle to interrogations.” In Berghuis v. Thompkins, the Supreme Court held that a defendant is required to invoke the right to silence in an unambiguous fashion.

Voluntary waiver. The Supreme Court stressed in Miranda that the government is required to meet a “heavy burden” in demonstrating that a suspect voluntarily, knowingly, and intelligently waived his or her rights. The Miranda decision noted that any evidence that an accused was threatened, tricked, or cajoled into a waiver is sufficient to demonstrate that a suspect did not voluntarily waive his or her rights. A waiver also will not be upheld if obtained under coercive circumstances such as a lengthy interrogation or a lengthy incarceration prior to a confession.

Knowing and intelligent waiver. We have seen that an individual must understand the Miranda rights as well as the consequences of waiving them. Tague v. Louisiana held that a police officer may not automatically conclude that an individual knowingly and intelligently waived his or her rights. What factors are relevant in determining whether a waiver of Miranda is knowing and intelligent? In Fare v. Michael C., the Supreme Court indicated that the question whether a waiver is knowing and intelligent is determined on a case-by-case basis by the totality of the circumstances. In Fare, this analysis considered the “juvenile’s age, experience, education, background, and intelligence and whether he has the capacity to understand the warnings given him . . . and the consequences of waiving those rights.” Courts also will examine whether the defendant acted in a calm and rational fashion or in an emotional and incoherent manner. The Supreme Court stressed that the Constitution does not require that an individual should be informed of all the information that might prove useful in arriving at a decision whether to waive his or her rights, such as the strength of the prosecution’s case.

Express and implied waiver. A waiver, as we have seen, must be voluntary, knowing, and intelligent. Miranda indicated that an “express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver.” A waiver will not be presumed from an accused’s silence. The Supreme Court has recognized implied as well as explicit waivers and ruled that “in some cases, a waiver can be clearly inferred from the actions and words of the person interrogated.” In these instances, the prosecution is required to establish that although there was no affirmative waiver, the suspect engaged in a “‘course of conduct indicating waiver.”

Question first and warn later. The U.S. Supreme Court was next asked to address whether a waiver is valid that is obtained through a question first and warn later tactic. In Missouri v. Seibert, the Supreme Court stated that the issue when the police question first and warn later is whether “it would be reasonable to find that in these circumstances the warnings could function ‘effectively’ to advise the suspect that he or she had a real choice about giving an admissible statement.” In other words, when a suspect is warned that “anything you say may be used against you,” will he or she understand that despite the initial confession, he or she need not speak to the police? The Supreme Court suggested in a footnote that this might require that the police inform a suspect that the first confession is inadmissible in evidence.