4th 5th and 6th Amendments

27 September

• 10/7 4:30PM-6:30PM is the Darrow thing.
• Jerrell
  This was Milwaukee, by the way. And he was in handcuffs while being questioned. The court weighs police tactics against the character and capacity of the person questioned.

  Why be extra-cautious when interviewing a juvenile? They're more prone to being pressured by an authority figure.

  New requirement: juvenile confessions must be electronically recorded. If it's custodial interrogation, anyway.

  And now the legislature has codified this: the remedy for failure to record juveniles is suppression of the confession. There are good-faith exceptions.

  This isn't a requirement that interrogators change techniques, but additional transparency might discourage some tactics.

  This decision rests on the Supreme Court's supervisory powers: they're setting forth a rule of court procedure. They're saying "you can interrogate juveniles however you want, but don't expect the products to be admissible in court unless you comply with these rules."

  So if you've got a lesser-involved juvenile, you can violate these policies to get that person to implicate the more-involved juvenile, and that person won't have standing to challenge the procedures used.

• Michael Crowe video (10 hours of interrogation produces confession to the murder of his sister).
• Richard Leo on false confessions; also Ofshe. (note that these guys get criticized as well)
• Reid technique
  Reid and Inbough (1960's) start looking at psychological approaches to interviewing suspects. This is a progressive idea at the time: we're moving away from physical brutality.

  Reid techniques are pretty much the standard. There are a number of techniques that are relatively easy to master: false friend, etc.

• The type of lie that's likely to induce a guilty person to admit to a crime they committed, that'll almost always be be accepted. Courts take a dimmer view of lies likely to persuade an innocent person to confess to a crime they didn't commit.
• Strang's formulation: "the Rockwell/Orwell phenomenon."

  Rockwell: the painting of the cop leaning over a child with an ice-cream cone who has wandered into the street, to coax him back out of the street. Police as helpful community caretakers, to whom you can turn for orderly intervention when you're in need.

  Orwell: not as nice. Whisking people away unexpectedly, openly armed, in combat gear.

  In some areas, people grow up experiencing the police essentially as an occupying force. But those aren't the areas where judges come from, by and large. But our experiences with the police color our opinions about what it would take to overcome a free will.

• Interesting point: a guilty person has just as much right not to be coerced as an innocent one, but is perhaps more likely to give in to coercion. So why is a little bit more coercion (see discussion above about what lies are allowed) with the guilty?

  Rodgers v. Richmond (SCOTUS, 1961): the truthfulness of a confession is not to be considered in deciding whether the confession was coerced. That's the rule, but it's hard to ignore the truth of the statement: who wants to suppress a confession from an actually guilty party? And the judge who hears the suppression hearing might be the fact-finder at trial (see, esp. juvenile courts).

• Videotapes help the accused, especially when the client is inexperienced and/or inarticulate. A client is typically only able to talk for a few minutes about what went on, but a videotape shows in real time, and lets you show things to an expert in a way that your client's statements couldn't. Plus, it's sort of unimpeachable, whereas the statements of the accused are just generally given less credence than those of the police.
• Prosecutors like them too: they resolve a lot of cases.
• Note that we're not just talking about confessions; it's "statements." A statement might only be incriminating when compared and found inconsistent with some piece of physical evidence.
• Would we have a more reliable system of justice if we didn't begin and end so many investigations with getting a statement? (see, e.g., cases where one brother covers for another brother, or a person elects to confess rather than get clobbered by the people who really did it)
• How do we get from 5A to 14A?
  So we get the notion that some police conduct is over the line, and is constitutionally intolerable. 5A talks about the federal government, not the states.

  But then we get 14A. This has a due process clause, and an equal protection clause (that 5A lacks). So now SCOTUS has to consider what "due process" means as to the states' governments? Does that include the same limitations on state power that are imposed by the constitution on federal power? Well, structurally, it would seem not. So what components of federal due process are to be applied to the states?

  This gets decided more or less on a case-by-case basis. The 5A grand jury clause isn't necessary for state due process (i.e., you can have charges by criminal complaint). Brown v. MS incorporates a protection against outrageous police conduct that coerces statements (this pre-dates, by the way, the announcement that federal LEOs couldn't do the same).

  Hugo Black (Adamson v. CA, 1947, dissent) argues for total incorporation. But that position hasn't prevailed.

29 September

• We will probably be getting the "B" packet early, just because there's no reason not to.
• Back with incorporation
  Where did the integration of substantive due process into 14A really begin? Lochner: as a matter of liberty interest, states cannot interfere in the right to contract to offer one's labor. So back in 1905, it was the conservative block of the court that created substantive due process, even though it later became the tool of the liberal side.

  And the most recent is McDonald v. City of Chicago (2A rights applied to the states). The petitioner's argument in that case directly invited the court to reconsider the Slaughterhouse cases (i.e., "privileges and immunities" as protecting other things besides race). All modern scholars seem to agree that those cases were wrongly decided and the "privileges and immunities" clause is supposed to be something stronger than that, but the court declined to rule that way, and went with due process instead.

• In June, a client of Strangs, sentenced to life, will be released. She was convicted on the basis of a confession obtained by letting her see her boyfriend hooked up to a "lie detector" that was actually a spaghetti strainer and some wires. That was a voluntary confession.
• Mincey
  This case will come back in 4A discussions as well. But why is it a significant 14A due process case?

  So long as a confession is voluntary, it goes to the jury to weigh the credibility of it. But the average person on the street is unaware of the problems of false confessions; they can't imagine confessing to something they didn't do. The "fundamental attribution" error (term from psychology): people focus on one thing, ignoring situational context.

  Side point: consider the word "confession:" it's a heavily religiously weighted concept. It's supposed to be a good thing. Really what we mean in a legal context is an "inculpatory statement." "Confession" suggests more than just admission that you did something; it's supposed to be a step towards atonement.

  So why is it so hard for a defense attorney to argue that the confession shouldn't be given weight? Why not call a psychologist as an expert witness and have that person explain the phenomena of suggestion and coercion and stuff? Fees and time, for one thing; SPD is unlikely to spring for this. Plus, it looks self-serving, and confirms peoples' feelings about criminal defense attorneys.

  At the same time, the defense bar is often cowed by the existence of a confession. They'll maybe lean towards making a deal.

  Defendant's dilemma: if you fail to testify, people assume you're guilty, but if you do testify, they assume you're lying. You have to decide which is worse for you.

  Anyway, Mincey. What is the difference between psychological and physical coercion? Sort of an interesting blend of them here.

  Also remember that due process is a limitation on the government's power: you can be coerced into confessing by all sorts of other things, just not the state. The truthfulness of a confession is for a jury; it's separate from its voluntariness, which is a due process matter-- does the jury get to hear the confession at all?

  There's correlation between geography and false confession, and also with the type of crime (rape and murder have the highest rates, apparently).

  General rule: as long as a threat by the police is true (e.g., about where charging will take place, or whether children will be taken by child protective services), it is allowed.

  Maybe we should be looking at the reliability of a confession rather than the voluntariness? Here are proposed indicia of reliability:

  1. Will it lead to discovery of corroborating information
  2. Does it include highly unusual details
  3. Does it confirm mundane details that others would not know

  But this might lead to true confessions being thrown out just because it's vague on some points. And now we'd have to worry about what details people have seen in the media, or have been fed by the interrogators.

  False confessions have two costs: imprisoning the innocent and also letting the guilty go free. And sexual offences, in particular, have a high rate of recidivism. So failing to get the right guy might be putting others at risk.

  The innocent person's dilemma at sentencing: if you don't say you did it, you get the more severe sentence.