Confessions - The Role Of Confessions, The Voluntariness Approach, The Right To Counsel Approach, The Self-incrimination Approach—historical Background
criminal amendment interpreted fourteenth
Confessions have played an ambiguous and paradoxical role in Anglo-American cultural and legal history. In many religious traditions, a confession begins the process of expiation and forgiveness. Yet in the secular, legal sphere, it often lays the foundation for blame and punishment.
Moreover, there is a contradiction embedded within this contradiction. Because confessions appear to create unmediated access to the defendant's knowledge, thought processes, and beliefs, they seem to provide uniquely powerful evidence of both culpability and contrition. Yet because the access is in fact always mediated, confessions can also be uniquely dangerous and misleading. The upshot has been heavy reliance on confessions coupled with extensive regulation of their use.
In the United States, three separate constitutional provisions limit the legal use of confessions.
- The Fifth and Fourteenth Amendments guarantee due process of law. This protection has been interpreted to prohibit the extraction of "involuntary" confessions.
- The Sixth Amendment (made applicable to the states by the Fourteenth Amendment) guarantees the assistance of counsel in all criminal prosecutions. The Supreme Court has interpreted this provision to prohibit introduction of post-charge statements made by a defendant in the absence of a lawyer.
- Finally, the Fifth Amendment's self-incrimination clause (also made applicable to the states by the Fourteenth Amendment) provides that "No person . . . shall be compelled in any criminal case to be a witness against himself." This language has been interpreted to bar from criminal prosecutions all compelled statements made by a criminal defendant and any evidence derived from such statements.
Additional Topics
A defendant can confess to guilt in a variety of different settings, and different legal rules govern admissibility in each setting. First, some defendants make inculpatory statements to friends or associates. In general, if the prosecution learns of these statements because of the cooperation of a person who hears them, the statements are admissible against the defendant. The primary exception to…
As already noted, three separate constitutional provisions bear on the admission of confessions achieved through police interrogation. Before 1964, the principal means of control were the clauses in the Fifth and Fourteenth Amendments, guaranteeing due process of law. Beginning in 1936, a series of Supreme Court cases held that police tactics having the effect of "overbearing the suspect&#x…
By the mid-1960s, unhappiness with its own voluntariness jurisprudence led the Supreme Court to consider other, more clear-cut and rule-like approaches to the control of putatively improper interrogation techniques. A breakthrough came in 1964, when the Court decided Massiah v. United States (377 U.S. 201 (1964)). Massiah was arrested and, along with one Colson, indicted for possession of narcotic…
In 1966, the Supreme Court decided Miranda v. Arizona (384 U.S. 436 (1966)), one of the most famous decisions in its history. Miranda is best known for the warnings that take its name. As a doctrinal matter, however, the case is most important for shifting the Court's focus from due process and Sixth Amendment concerns to an analysis resting on compelled self-incrimination. In order to unde…
Although much of the history of the self-incrimination clause is contested, one fact is certain: When the provision was adopted, no one supposed that it applied to pretrial police interrogations in a custodial setting. The reason is simple: in late-eighteenth-century America, there were no organized police forces and there were therefore no police interrogations to which the self-incrimination cla…
When the liberal Justices on the Warren Court were replaced by more conservative jurists, many predicted that Miranda would be quickly overruled. The Burger and Rehnquist Courts did cut back on some aspects of the decision but it has not yet been overruled, and in some important respects, its protections have actually been expanded. Discussion of Miranda doctrine can usefully be organized around t…
Although Miranda no longer excites the strong emotions that it did in the 1960s, the controversy over its holding has not entirely dissipated. Scholars continue to debate the effect of the decision. For example, Paul Cassell, a strong Miranda opponent comprehensively reviewed empirical data about the decision's impact. He concluded that approximately 3.8 percent of all criminal cases are lo…
——. "Constraint and Confession." Denver University Law Review 74, no. 4 (1997): 957–978. ——. Troubling Confessions: Speaking Guilt in Law and Literature. Chicago: University of Chicago Press, 2000. ——. "The Guilty and the 'Innocent': An Examination of Alleged Cases of Wrongful Conviction from False Confessions.�…
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