NCJ Number
58128
Journal
University of Pennsylvania Law Review Volume: 127 Issue: 3 Dated: (JANUARY 1979) Pages: 581-629
Date Published
1979
Length
49 pages
Annotation
CONSTITUTIONAL LIMITATIONS ON THE ADMISSIBILITY OF CONFESSIONS ARE EXAMINED, AND A PER SE APPROACH TO CONTROLLING INTERROGATION TECHNIQUES IS RECOMMENDED, FOLLOWED BY A CRITIQUE OF VARIOUS INTERROGATION TACTICS.
Abstract
A POLICE OFFICER WHO WISHES TO COMPLY WITH THE CONSTITUTIONAL LIMITS ON THE THE USE OF TRICKERY IN INDUCING CONFESSIONS MUST BE CONCERNED WITH MORE THAN SIMPLY AVOIDING TRICKS THAT ARE LIKELY TO INDUCE FALSE STATEMENTS. IN ADDITION, HE MUST CURB THE USE OF TRICKERY THAT HAS THE EFFECT OF RENDERING THE RESULTING CONFESSION INVOLUNTARY OR THAT NEGATES THE EFFECT OF PROTECTIONS PROVIDED BY THE FIFTH AND SIXTH AMENDMENTS. THESE GENERAL PRINCIPLES, HOWEVER, DO NOT PROVIDE THE CONCRETE GUIDANCE NEEDED TO DETERMINE THE LEGITIMACY OF PARTICULAR POLICE PRACTICES. PER SE RULES PROHIBITING CERTAIN CATEGORIES OF POLICE TACTICS WOULD PROVIDE BETTER GUIDANCE FOR THE POLICE AND INCREASED PROTECTION FOR SUSPECTS. THEY WOULD REQUIRE THAT A COURT TAKE AN ADDITIONAL CONCEPTUAL STEP AFTER DETERMINING THAT A GIVEN INTERROGATION TACTIC VITIATES CONSTITUTIONAL GUARANTEES. WHENEVER POSSIBLE, THE COURT SHOULD IDENTIFY THE OBJECTIONABLE CHARACTERISTICS THAT EMERGE FROM ITS SCRUTINY OF THE FACTS SURROUNDING AN INVALID INTERROGATION. IF THAT INFIRMITY CREATES AN UNACCEPTABLE RISK OF INFRINGING THE TYPICAL SUSPECT'S CONSTITUTIONAL RIGHTS, THE COURT SHOULD HOLD THAT SUCH POLICE CONDUCT IS ILLEGAL PER SE. ALTHOUGH THE OBJECTIONABLE POLICE CONDUCT MAY CONCEIVABLY OCCUR IN MYRIAD FORMS AND IN VARIOUS SETTINGS, A PER SE RULE WOULD REQUIRE THAT POLICE OFFICERS DESIGN THEIR INTERROGATION TECHNIQUES TO AVOID THE PROSCRIBED CONDUCT IN ALL SITUATIONS. THE SUGGESTED OBJECTIVE APPROACH AND CONCEPTUAL FRAMEWORK IS USED TO IDENTIFY POLICE TACTICS THAT ARE DEEMED TO CREATE AN UNACCEPTABLE RISK OF INFRINGING THE TYPICAL SUSPECT'S CONSTITUTIONAL RIGHTS. SUCH TACTICS INCLUDE, DECEPTION ABOUT WHETHER AN INTERROGATION IS TAKING PLACE, DECEPTION THAT DISTORTS THE MEANING OF THE MIRANDA WARNINGS, DECEPTION THAT DISTORTS THE SERIOUSNESS OF THE MATTER UNDER INVESTIGATION, TRICKS THAT HAVE THE CHARACTER OF THREATS OR PROMISES, AND THE USE OF TWO INTERROGATORS WHEN ONE ASSUMES A FRIENDLY AND ANOTHER A HOSTILE APPROACH TO THE SUSPECT. (RCB)