Smart talk contemporary interviewing and interrogation by gosselin ch10

The Interrogation Process and the Law Chapter 10 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-1 © 2007 Pearson Education, Inc 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 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-2 © 2007 Pearson Education, Inc 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 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-3 © 2007 Pearson Education, Inc 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 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-4 © 2007 Pearson Education, Inc 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 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-5 © 2007 Pearson Education, Inc Upper Saddle River, NJ 07458 Fifth Amendment Protections  The Fifth Amendment provides protection from a person being incriminated by compelled testimonial communication Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-6   Compel means to cause or bring about by force, threats, or overwhelming pressure Testimonial is a communication that explicitly or implicitly relates or discloses information that is the expression of the person © 2007 Pearson Education, Inc Upper Saddle River, NJ 07458 Fifth Amendment Considerations  The protection against selfincrimination also permits a person to refuse to testify against himself or herself at a criminal trial in which they are a defendant Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-7 © 2007 Pearson Education, Inc 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) Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-8 © 2007 Pearson Education, Inc Upper Saddle River, NJ 07458 Totality of the Circumstances Test  The totality of the circumstances test is one where the court focuses on all of the circumstances surrounding a situation, rather than any one factor Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-9  The court will typically look at all of the physical or psychological pressures to determine if they unduly influence the accused to make a statement © 2007 Pearson Education, Inc 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 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-10 © 2007 Pearson Education, Inc Upper Saddle River, NJ 07458 Fourteenth Amendment of the U.S Constitution  Section 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 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-21 © 2007 Pearson Education, Inc 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 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-22 © 2007 Pearson Education, Inc 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 selfincrimination or the Fourth Amendment’s protection from illegal search and seizure would be excluded from use in trial against the defendant Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-23 © 2007 Pearson Education, Inc 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 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-24 © 2007 Pearson Education, Inc 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 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-25 © 2007 Pearson Education, Inc 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! Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-26 © 2007 Pearson Education, Inc 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  Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-27 © 2007 Pearson Education, Inc Upper Saddle River, NJ 07458 When is a Statement Compelled?  In most cases the statement is compelled if the following was used to obtain a Miranda waiver:  There was a promise of leniency  There were threats to arrest members of a suspect’s family Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-28  A suspect may make a valid waiver of Miranda rights, but the statements may be violating the Fourteenth Amendment based on coercive tactics used by the police to obtain the statement © 2007 Pearson Education, Inc 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 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-29 © 2007 Pearson Education, Inc 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 Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-30 © 2007 Pearson Education, Inc Upper Saddle River, NJ 07458 Fourth Amendment Interrogation Application  Since the application of the exclusionary rule to the states, a confession, statement, or admission, which is made by a person who is illegally in custody may be excluded because it is evidence obtained as a result of an unlawful seizure Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-31  To pick-up a suspect and take him to the police station for interrogation the officer must have probable cause for an arrest of that person OR the detainment must be voluntary (Kaupp v Texas, 2003) © 2007 Pearson Education, Inc 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) Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-32 © 2007 Pearson Education, Inc 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  Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-33 © 2007 Pearson Education, Inc Upper Saddle River, NJ 07458 Police Power of Arrest  When a police officer has reasonable belief, based on facts and circumstances, that a person has committed or is about to commit a crime  This is the arrest based on probable cause Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-34   When the police officer personally sees someone commit a crime When an arrest warrant has been issued © 2007 Pearson Education, Inc Upper Saddle River, NJ 07458 Probable Cause  Probable cause is based on the totality of the circumstances and is more than just the suspicion of the officer Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-35    Personal observations Hearsay Prior criminal record, furtive conduct, evasive answers, or the area © 2007 Pearson Education, Inc Upper Saddle River, NJ 07458 ... created by the people for the purpose of protecting citizens against tyranny and lawlessness, and to protect freedom Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin. .. and those principles must be applied uniformly and fairly to all citizens Also referred to as the supremacy of law Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin. .. incriminated by compelled testimonial communication Smart Talk: Contemporary Interviewing and Interrogation By Denise Kindschi Gosselin 10-6   Compel means to cause or bring about by force, threats,