In former times it was believed that confession of the accused in the crime was the final and irrefutable proof of the guilt. Naive and crude psychology of judges and legislators did not reckon the possibility that a suspected may have an interest to specify himself in obviously false way. Therefore, legislators sought a ‘confession’ by all means, using different kinds of tortures, such as mental and bodily tortures. These actions created a direct and sharp interest in the soul of a suspect, rather to slander himself, to confess everything, just to stop own sufferings; and legislators, having achieved confession, felt triumph and punished the person.
Nowadays situation has greatly changed and the right to protection of the arrested person in the criminal process of the United States constitutes the totality of his legal rights, which provides an opportunity to dispute a suspicion or accusation of the crime, to prove own innocence to the crime, to protect other legitimate interests in the legal process (moral, property, or other rights). The right of the arrested to defend themselves includes the right to have an attorney and the right to use the statutory rules of law, aimed at protecting individual rights in criminal proceedings. Thus, we are going to discuss the topic concerning interrogations and confessions in the body of this paper for the purpose of to understand it better and plunge into the discussed questions with more details.First of all it is necessary to determine two main terms of our discussion, they are interrogation and confession. Interrogation is a proceeding, which consists in obtaining and recording of the words of witnesses, victims, suspects and accused in accordance with the procedural order for the purpose of to find facts that are important for the proper decision of the case. Various circumstances related to the event under investigation may be the subject of interrogation. Determining confession, it is obvious that the confession is considered to be one of the most damaging forms of evidence produced at a trial, on the one hand; and a good potent prosecutor’s weapon, on the other hand. One of the most important aims of police interrogation is to obtain a confession, but it is not as easy as it seems for the first glance. There is no doubt that confession is very attractive form of solving crimes, but there are many various circumstances which force detectives to check the truthfulness of confession and be sure that everything said by a suspect is a true fact.
Efficient detection of various crimes is entirely based on the successful collection of evidence regarding a specific crime. In this context, two kinds of evidences have the importance: material evidence (‘silent witnesses’) and the original evidence.In principal, the material evidence can be found at the crime scene, or where the crime left its tracks. The actual provision, collection and processing of evidence are within the scope of the police staff. In some cases, further analysis is run by forensic laboratories. The requirements for evidence to be admissible as conclusive evidence in court are very high and strict. These standards represent recognition of the importance of a fair trial, the right that all the accused persons must to have.
As it was previously noted the first type are material evidences, while the second type of evidence is the information obtained from the original evidence. Witnesses play an important role in the investigation, because they can be compelled to testify, and they must tell the truth during this process. The situation with the witnesses is the opposite situation to suspects, who must not be compelled to testify against themselves or to confess the guilt. To protect the last statement the next case mentioned that “in criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person shall be compelled in any criminal case to be a witness against himself”.
Summarizing the above presented facts it is possible to add that statements of suspects or accused with respect to the offense are a third important source of evidence. At the same time it should be emphasized that during the investigation officers for the purpose of to maintain law and order should not rely solely on such evidence, accepting it as the basis for a particular case to be submitted to the court. The reasons are simple in this case. A suspect has the right to remain silent and can not be compelled to testify against himself (or herself) or to confess the guilt. In addition, a suspect has the right to refuse to testify or to change own statements at any stage of the proceeding. It is obvious that in many situations, material evidence and witness’ statements will be of great value in comparison to the information obtained during interrogation of a suspect.
The effective search for truth is the main goal of all interrogations because it is necessary to find the right answers on all questions and allow justice to win a victory over all circumstances. The success of interrogations depends on many factors and the amount of previously known facts is one of them. The professional interrogator gathers as much important information as it is possible to gather before making the first contact with the accused. Every criminal event can be generally viewed as a kind of three stages of behaviors, such as pre-incident behavior, exactly incident behavior, and, finally, post-incident behavior. The facts associated with each of the above numerated stages must be considered in a thorough way to better assess the situation, to understand its truthfulness and reliability.
According to Gordon and Fleisher (2006), it is possible “to take the case of a simple spontaneous crime of opportunity, such as an employee stealing money from a cash register, for example.” Thus, Gordon and Fleisher (2006) stated that “this criminal transaction has three stages:
- Pre-incident behavior, such as the need for the money, planning, and opportunity.
- Incident behavior, such as ensuring no one is watching, leaving the register drawer open between customers sales, receiving the money and not recording it, and the actual removal and secreting of the funds.
- Post-incident behavior, such as concerns upon leaving the store, spending the money, planning what to say and do in the event of being questioned, etc.”
Analyzing the situation of an employee stealing money from a cash register, we can say that each of the three above numerated stages can give valuable insight into the real situation, and an interrogator could feel himself more prepared to the process due to the deep analysis of situation at each stage.In this part of the paper, with respect to interrogation of suspects and accused persons it is necessary to reiterate the absolute prohibition of torture. Torture is not only prohibited by the law, the results (a confession or other information) obtained through torture will always be unreliable, since any stage can not certainly determine whether a person speaks the truth under torture, or he simply admits a guilt in order to stop torture. Tortures humiliated a victim as well as its executor. They undermine the fundamental principle of freedom, security and democracy, which is believed to be the basis of any society. Thus, tortures can never be justified under any circumstances.
Suspects and accused persons have a right to be presumed innocent until their guilt will be proved in the court. So, officials of law enforcement conducting the investigation do not establish innocence or guilt during the process of questioning or interrogation – their main task is to establish the facts.Their fact-finding mission begins with the examination of crime scenes, as well as places where were left traces of the crime in order to gather material evidence about the crime. Subsequently, their attention should be focused on those individuals who may have witnessed the crime during its commission, or who may have other pertinent information. Only a dual approach in conducting the investigation and analysis of the resulting information may allow them, resulting the collection of sufficient facts, to establish reasonable suspicion against the person who could commit this crime (if the suspect or suspects were not arrested flagrante delicto). In continuation, the arrest of a suspect must be made subject to the procedural safeguards, as well as further subsequent detention and interrogation.
The rights are compulsorily read out only to the suspect, just before the first interrogation, and only if he or she is under arrest. The requirement to inform a suspect about the essence of his constitutional rights was firstly fixed at the legislative level in the United States relatively recently. In 1966, the United States Supreme Court overturned the decision of the court in Arizona against Ernesto Arturo Miranda, and sent the case back for retrial. The reason for such unexpected decision was the following. Miranda, the person accused in abduction, rape and armed robbery, has made all his confessions during interrogation in police custody without being informed of his constitutional right not to testify against himself and the right to have an attorney as required by the Fifth and Sixth Amendments to the United States Constitution. Into the acknowledgement of these words we can use the following information: “The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment’s privilege against self-incrimination.” And in addition, “the privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system and guarantees to the individual the “right to remain silent unless he chooses to speak in the unfettered exercise of his own will,” during a period of custodial interrogation [384 U.S. 436, 437] as well as in the courts or during the course of other official investigations.”
Analyzing Miranda’s case, we can state that, in particular, the Fifth and Sixth Amendments to the U.S. Constitution state that ‘… no person shall be compelled in any criminal case to testify against himself’ and that ‘In all criminal prosecutions … the accused shall have the right to assistance of the lawyer for his defense’. During the retrial, all derived from Miranda confessions were excluded from the evidence; as a result, he was sentenced only to 11 years in prison.In this case the U.S. Supreme Court has not set the exact wording, which would be used when informing suspects of their rights, but gave a few guidelines that legislators need to comply with, namely:
- a person who is in custody, before the first interrogation , shall to obtain a clear information about the fact that he has the right to remain silent and that everything said by him, will be used against him in the court;
- a suspect must be informed clearly that he has the right to consult with the lawyer and that the lawyer will be present at the interrogation;
- in a case, if the suspect can not afford to pay to an attorney, the last will be provided to him in a free of charge way.
Summarizing the facts presented above, we can state that as a result, these principles were later called “the Miranda warning or Miranda rights”, a typical formulation of which is as follows: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney. If you cannot afford an attorney, one will be appointed for you.” The wording of the Miranda rights may be different from the statements mentioned above, but they should not loose their main essence. In addition to the above mentioned rights, the officer must also be sure that the suspect understands own rights and in a case, if the suspect does not know the language, all these rights must be well translated to the person to make sure that they are understandable for the person and are given in the right way.
Miranda rights were created only several decades ago, in 1966, and it had a place due to the United States Supreme Court case of Miranda v. Arizona. The Miranda warning has in its aim to protect the suspect’s right to protect himself, and to keep silence and to reject to answer self-incriminating questions that is mentioned in the Fifth Amendment.To sum up, these Miranda rights can be read to the suspect in any order and not necessarily the ‘word for word’. Almost every state has own additions or updates to the above mentioned typical formulation. The main condition is common to all states – to read out to the suspect the rights, to fully reflect the essence of the principles adopted by the Supreme Court and to ensure that the suspect perceive the rights in a proper way.
U.S. law extends the Miranda right only on committed crimes and does not eliminate the suspects to answer installation questions (name, address of residence, etc.). It is also permitted to provide an indirect impact on the suspect, with a view to inducing him to abandon Miranda rights. For example, a police officer has a right, before reading out the suspect his Miranda rights, to give various details of any available evidence in the guilt of the latter, and to explain the suspect the essence of witness’ evidence incriminating his guilt, etc.; or to spend a lot of time together with the accused in the interrogation room, while doing the paperwork on the case and wait until the suspect decide to speak about the crime by himself. Such a behavior of law enforcement officers shall not be deemed a kind of violation of constitutional rights.
The retreat of Miranda rights can be also in a case, if compliance can lead to dangerous consequences and threaten the public safety. For instance, the detention of an armed criminal in a room of a crowded department store, gives police the right to ask the suspect questions concerning the whereabouts of weapons, immediately after the arrest and handcuffing, not reading out with his Miranda rights. According to the verdict of the Supreme Court of the United States, the concern about public safety is paramount in such cases.In addition, according to the decision of the Supreme Court of the United States, undercover police officers or other special agents, are not required to read out the suspect his rights, despite the fact that they are governmental agents, because in this case, an agent working ‘under cover’ would be instantly exposed. Miranda rights extended to immigrants residing illegally in the United States. In the case, when an illegal immigrant is arrested on suspicion of committing a crime, he gets the same rights as the U.S. citizen during the pretrial and during the trial.
Thinking with more details about interrogation it is important to emphasize that interrogation of suspects requires preparation by the participating officers to maintain law and order. These officers must have a clear picture of the established facts to date, which helps to determine the sequence of events that took their place in the crime.
The purpose of interrogation is to clarify the already established facts, as well as establishing new facts on the crime. Each interrogation must be clearly recorded. Statements, which contain a confession, made by suspects shall be recorded in accordance of his or her own words. It is also necessary to make a clear record of length of the interrogation, to numerate all people presented at it, and to fix the time interval between two interrogations.
According to Gohara (2006), we see that “at the core of the American justice system is the reliance on actual, legally obtained evidence to discern the truth about a crime and to convict the guilty. In principle, the law is designed to increase confidence in the administration of justice and to insure that the guilty are convicted with legally obtained evidence and the innocent go free.”
The success of the interrogation of suspects and accused, and the meaning of given evidences depends on skilful selection and skillful, effective application of interrogation tactics developed by the theory and practice of successful interrogations. During the interrogation in a non-conflict situations, when interrogated validates the suspicion arising in respect to his person, and the defendant pleads himself guilty, the focus should be made on obtaining complete and detailed evidences about all circumstances of the crime. Evaluating reported information, it should be kept in mind that the suspect, even admitting his guilt, often consciously, sometimes unconsciously, seeking the ways to diminish his possible role in the event under investigation, to present own actions in a positive light, portraying himself as a victim of negative circumstances. It may be also a manifestation of the desire to hide or downplay the involvement in the crime of persons towards whom the suspect is experiencing a sense of affection. All these factors pose a threat to non-conflict situation in the transformation of it into the conflict one.
Therefore, especially at the first interrogation, there is no necessity to focus the attention of the suspect on contentious, controversial points of his evidence immediately. The interrogator should give a free story about the crime and ask different questions for the purpose of to make the right conclusion about the guilty of the suspect. In this case a confession could be a good present for the interrogator, but the interrogator should also keep in mind that false details, the flimsy explanations and details contained in the evidence of the suspect (accused) may indicate self-incrimination, i.e. false recognition of the guilt by the person who did not commit a crime. Self-incrimination is a consequence of not only unfavorable tactical situation of certain procedural irregularities and tactical blunders. The basis of self-incrimination is often includes certain personality traits, as well as the undesirable changes that occur in the human psyche as a result of erroneous suspicions or accusations of having committed a crime. False confession is often made in ‘favorable’ conditions, for instance, false confessions may be cause by the interrogation made at night, as well as by various interrogations that have extreme regularity, duration and frequency.
It is noticed that the information contained in the false confession usually does not go beyond what has been known to the investigator earlier. Moreover, a significant part of it takes the assurances in sincere repentance and willingness to assist the investigator in solving the crime. For the purpose of to check the reliability of the information under interrogation it is necessary to pay attention: firstly, how fully and in detail, were found out all the facts relating to the subject matter of proving the case; secondly, whether the suspect said such details and circumstances that were not known to the investigator and which are certainly should be known to a person who actually committed a crime; and thirdly, whether the facts reported in the interrogation were determined and confirmed by other evidences.
Each investigator should remember that the presence of these data in the evidences, however, still does not rule out a false confession because the suspect, qualifying himself guilty, may know about the details of the crime from the person who actually committed it, or from others who saw the crime by own eyes. For example, certain difficulty for disclosure presents the false confession, which is made to protect the beloved person from the responsibility. Therefore, to detect such cases the investigator needs to carefully study the personality traits of the suspect, his contacts with others, and not to hurry with the exception of the version of the crime commitment by others. In exposing the self-incrimination important moments are: to check the data on the place of crime commitment, to check alibis and make a thorough and rigorous comparison of the confessions with other related to the crime data.
Analyzing the evidence, the investigator must necessarily to pay attention to the use by the suspect of unusual to him expressions, statements, concepts, which may indicate the formation of the content of the evidence under the influence of other person, may be highly interested parties. To diagnose a false confession may help the repeat of the interrogation. For example, literally word for word repetition of the initial statement made by the suspect may point to false confession, as well as the reverse phenomenon, when the suspect (accused) contributes to the previously stated facts additional new details often contradicting those reports, which were set out by him during the previous interrogation only by a natural process of forgetting.
Observing a conflict situation in the process of the interrogation, it is good to note that, in a conflict situation, the general rule is to use the opportunities of a free story for the purpose of to establish a psychological contact with the subject of the interrogation, it helps to find a better understanding of his personal characteristics and to obtain more complete evidence on all circumstances of the investigation. A conflict situation has place in the interrogation of a suspect quite often. Conflict character of such interrogation is primarily caused by the position of the suspect, who is trying to deny any kind of own involvement in the crime. In addition, taking into account the fact that the interrogation occurs at the beginning of the investigation, the investigator usually does not have enough evidence for a full set of exposure of the suspect. Also there is no still certainty that the suspect is the same person who is guilty in the crime. Therefore, the first interrogation of the suspect has intelligence character, to some extent; and aims at clarifying personality characteristics of the suspect, his position, arguments, and is necessary for getting the information that he intends to tell.
It should be taking into consideration that various emotional experiences are peculiar to the suspect. On the one hand, he expects that the investigation has no sufficient evidence, and, therefore, he hopes that he will be able to evade the responsibility. On the other hand, the fact of arrest or sudden call for the interrogation is unexpected step for such person quite often, it weakens his confidence in the fact that crime remains unsolved, and contributes to the formation of ideas about the inevitability of impending exposure in his mind. The contradictory emotions of the person, who committed the crime, their special acuteness, hamper the correct assessment of the situation and lead to gross miscalculations and bad decisions.
The tactics of interrogation of a suspect should be as cautious and selective as possible, since it is possible that the suspicion against a particular person was the result of negative circumstances, slander, delusions or mistakes. It is known that the factor of detention or arrest can break the will of a not guilty person, and lead to a false confession. It is therefore particularly important to check the involvement of the interrogated in the event that is under investigation, and receive from him such information that may be known only to the person who committed a crime.In conducting the interrogation an important skill is to combine the presentation of evidence and expose the lie, using techniques that activate the emotional experiences of the offender. To shake the position of the interrogated person is possible by enhancing his mind remorse, by gaining often quite painful experiences arising from understanding the wrongfulness of the act and its serious consequences, as well as an explanation of the circumstances that mitigate criminal liability.
Thus, taking everything into consideration it is possible to conclude that we have observed many aspects connected with interrogations and confessions in the body of this paper. We have determined the meaning of two terms, such as interrogation and confession, have discussed the specificity of the interrogation process, dwelling on Miranda rights, have observed the process of the interrogation, using its diverse tactics and paying a specific attention to the fact of self-incrimination. We have proved that involvement of a person as a defendant in the preliminary investigation does not imply recognition of this person as an offender, because by the time of bringing an accused person in the investigation it is not finished yet, and it probably will continue to set conditions that require the investigator to dismiss the case. To sum up, observing the topic concerning interrogations and confessions it is always necessary to remember about presumption of innocence and check all necessary details as long and careful as the case requires.
Bram v. United States, 168 U.S. 532 (1897).
George P. Fletcher, Basic Concepts of Criminal Law (Oxford University Press, 1998).
Miranda v. Arizona, 384 U.S. 436 (1966). Certiorari to the Supreme Court of Arizona.
Miriam S. Gohara, A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, Fordham Urban Law Journal 33 (2006).
Nathan J. Gordon and William L. Fleisher, Effective Interviewing and Interrogation Techniques (Elsevier Academic, 2006).
P. Weston and C. Lushbaugh. Criminal Investigation (Upper Saddle River: Prentice Hall, 2003).
Sara C. Benesh, The U. S. Court of Appeals and the Law of Confessions: Perspectives on the Hierarchy of Justice (LFB Scholarly Publishing, 2002).