Confessions and Admissions

A confession or even an admission will only be admitted into evidence at trial if it was given voluntarily. It has long been held that a coerced statement is not reliable; the rationale is that a suspect may say anything to get out of a situation in which law enforcement is somehow coercing him to talk. The statement may sound obvious enough, but there are volumes of cases focused on issues surrounding confessions and admissions, including what makes a statement “involuntary” and other questions of a statement’s reliability. Generally these cases come under the umbrella of the 5th Amendment, which states that “no person….shall be compelled in a criminal case to be a witness against himself.” This relates to more than just the right to remain silent or the right to decline to testify. It also impacts whether physical evidence seized from a person can be used against him.

Inadmissible Statements

There are several situations in which the court has ruled that a statement is unreliable and, therefore, not admitted into evidence. Those include:

1. Physical Abuse

Most obvious in terms of a coerced statement, the courts routinely hold that physical abuse will render a statement invalid. Brown v. Mississippi, 297 US 278 (1936)

2. Psychological Pressure

Extended sleep deprivation, long periods without food, water, bathroom breaks, even stories designed to “get” to the suspect can lead to the Court ruling that a statement was coerced, even without any physical violence.

Spano v. New York,360 US 315 (1959) US Supreme Court ruled as inadmissible a statement made by a suspect after the officer interviewing him, who was a childhood friend, told him he would be fired unless he could get a confession from the suspect. Similarly, in Lynumn v. Illinois, 372 U.S. 528 (1963), a statement obtained after police told the defendant her children would be taken away from her unless she confessed was suppressed under the Exclusionary Rule as a coerced statement. See also People v. Adrian Thomas NY Slip Op 01208 Decided on February 20, 2014 in which the defendant’s signed statement that he killed his infant son was ruled coerced when the officers told him numerous lies about his wife and son and suggested his actions for a video-taped confession.

3. Procedural Violations

The 5th Amendment to the US Constitution and corresponding language in the NY Constitution guarantees citizens the right to “due process”. This means that procedures designed to treat the suspect fairly must be adhered to throughout the process. If those procedural safeguards are not complied with, law enforcement runs the risk that any statement obtained will not be allowed at trial. Some examples of Due Process violations are summarized below, with many of the cases following at the end of the chapter:

a. Miranda v. Arizona, 384 US 436 (1966) Arguably the most famous court-created law in our system, the court in the Miranda decision stated that the Due Process guarantee of the 5th Amendment requires that suspects who are in custody and will be interrogated must be read their procedural rights. These are:

–Right to remain silent

–Anything said can be used against the suspect

–Right to an attorney

–If suspect cannot afford an attorney, one will be provided

–Right to end the interview at any time

There are variations on the exact wording but the general idea of these rights must be presented, and it must be shown that the suspect was aware of and indicated he understood them. Often police will ask a defendant to sign a statement that the rights were administered, were understood, and were waived voluntarily. If there is a question about the statement’s admissibility, the officer taking the suspect’s statement will likely have to testify about the process of administering the Miranda rights, such as whether there was force, whether the suspect appeared intoxicated or affected by drugs or otherwise impaired, what the suspect’s level of comprehension appeared to be.

For a recent twist on the “right to remain silent”, see Salinas v. Texas, 133 S. Ct. 2174 (2013) in which the Court held that silence in the face of police questioning can be used at trial to show indication of guilt (in other words, you can’t be silent to invoke your right to be silent!)

b. Do Over Rule. Oregon v. Elstad 470 US 298 (1985) In a Supreme Court case, police failed (by mistake; no bad faith was present) to give a suspect his Miranda rights before initial questioning, but remembered before they were taking his formal statement and gave him the warnings at that point. The suspect waived his rights and gave an identical statement. The US Supreme Court held that the first, unwarned statement was a clear Due Process violation, and so was inadmissible, but since the police officers then gave a proper Miranda warning which the defendant voluntarily waived, subsequent statements were admissible. In essence, the Court allowed the police to fix their Miranda mistake. This is NOT the rule in NY, however, where cases decided by the NY Court of Appeals have tended to allow law enforcement only “one bite at the apple”; if they make a mistake on a Miranda warning, they cannot get a second chance by reading the proper Miranda and taking a new statement. People v. Chapple 38 NY2d 112 (1975). But this “Chapple Rule” may be being eroded somewhat, depending on the interrogation circumstances, see People v. Paulman, 5 NY3d 125 (2005) where the Court held that even with an initial Miranda mistake, if there is an attenuation in the questioning (time passed, change of location , change of interviewer, some break or other indication that the interrogation was not continuous), a subsequent, properly warned statement may be admissible.

c. Miranda exceptions. Both the federal courts and the NY Court of Appeals have recognized some exceptions to the Miranda requirement, one of which is in the case of public safety. Obviously if there is harm occurring or is about to occur the courts will not require officers to delay their assistance for the sake of Miranda warnings. In People v. Quarles 467 US 649 (1984) the US Supreme Court affirmed the NY Court of Appeals decision that a police officer who had information that the suspect he was pursuing in an open grocery store had been armed, and who, on tackling the fleeing suspect, felt an empty shoulder holster had no obligation to read the suspect his Miranda rights before asking where the weapon was. The Court noted that there were citizens in the store that likely were in danger until the weapon was recovered.

It is important to remember that the Miranda rights must be given before custodial interrogation. Note that since the punishment for not giving a suspect his Miranda rights is that the suspect’s statement may not be admissible at trial, it follows that there cannot be a Miranda violation if no questions are being asked! The case of Rhode Island v. Innis, 446 US 289 (1980) held that even though officers were having a conversation troubling to the suspect in front of him while transporting him, they never asked him questions, so no “interrogation” occurred after the suspect declared he wanted to remain silent. If there is no interrogation, there can be no Miranda violation.

d. Physical Evidence. Generally speaking, the 5th Amendment right against self-incrimination is a testimonial privilege, not meant to apply to police seizure of physical evidence. The Court reiterated this rule when refusing a challenge to a blood sample taken without the defendant’s consent and without a warrant based on the defendant’s right against self-incrimination, among other things, in Schmerber v. California, 384 U.S. 757 (1966). However, there are many cases challenging the admission of evidence taken from the body of the defendant as a violation of self-incrimination aspects of the 5th Amendment, as well as of the 4th Amendment protection against unreasonable search/seizure. Like Schmerber, many cases challenge whether police have the right to have blood or other bodily fluids, or DNA taken from suspects without a warrant. The Court has ruled that the intrusion of law enforcement to obtain blood without consent in a driving while intoxicated case is a search and requires a warrant, absent exigent circumstances, and dissipating evidence in the form of evaporating blood alcohol level is NOT an exigent circumstance obviating the need for a warrant. McNeely v. Missouri, 133 S. Ct. 2174 (2013). In short, according to the US Supreme Court, a warrant is required for blood tests but not breath, with the rationale being that withdrawing blood for testing is a more intrusive invasion than simply collecting breath, and that blood has the ability to tell much more about a person than alcohol level, in which a person would likely have a reasonable expectation of privacy.

4. Right to Counsel Violations

a.The 6th Amendment of the US Constitution guarantees rights related to a fair trial, including “the right to have the Assistance of Counsel” for defense. Originally, this did not extend to a right to be provided with an attorney if one couldn’t afford his own, so poor defendants were left to represent themselves against criminal charges. In Johnson v. Zerbst, 304 U.S. 458 (1938), the US Supreme Court held that a defendant who was charged under a federal statute had the right to have an attorney appointed if he couldn’t afford one. Since this decision was specific to the 6th Amendment of the federal Constitution, though, no such guarantee was uniform among the states. The progression of the application to the states of the 6th Amendment right to counsel can be seen through review of Powell v. Alabama, 287 US 45 (1932), which held that the right to counsel was a fundamental right in a state capital case, then Betts v. Brady, 316 US 455 (1942), in which the Supreme Court specifically rejected the chance to dictate that the right to counsel is fundamental in every criminal case, and, finally, to Gideon v. Wainwright, 372 US 335 (1963), which overruled the pronouncement in Betts. Clarence Earl Gideon was charged with a felony under a Florida state law. When he requested that an attorney be provided for him because he couldn’t afford one, Gideon was denied since under Florida state law no such right existed at the time unless the crime charged was punishable by death. Gideon argued his case all the way to the US Supreme Court (which appointed him an attorney to argue there!) and the Court in held that the Due Process requirements of the 5th and 14th Amendments mean that the 6th Amendment guarantee of free counsel to indigent defendants was a fundamental right, equally important in state prosecutions as in federal. Since that landmark decision, many cases have followed which interpret that fundamental right to an attorney, both at the federal and state levels. It is helpful to keep in mind when reading cases about attorney assistance that they could be decided under 5th (due process) or 6th (assistance of counsel) Amendment grounds, and that not all of the issues revolve around “free” or appointed counsel.

b. Escobedo v. Illinois, 378 US 478 (1964) Early in the development of the right to counsel guarantee at the state level, many states held that the right to counsel attached for trial, but did not extend to counsel protection during police interrogation. In Illinois, defendant Escobedo, who asked for his lawyer during police questioning and whose lawyer came to the police station and demanded questioning stop so that he could talk with his client, was denied the opportunity to see or speak with his lawyer until after the police were finished. The state’s theory was that the police were in charge until the courtroom; the lawyer could take over then. The US Supreme Court held the confession obtained from Escobedo was inadmissible as it violated Escobedo’s 6th Amendment right to counsel. The Court recognized that the stages leading up to trial were critical in preparing an adequate defense and that a lawyer’s expertise at that point was just as necessary, perhaps more so, than during the trial process.

c. Moran v. Burbine, 475 US 412 (1986) In a federal murder prosecution, the defendant’s sister had arranged for representation, but the defendant himself never requested counsel and, in fact, waived his right to counsel. The US Supreme Court declined to rule his statements as inadmissible, saying the defendant himself needed to exercise his 6th Amendment right and could choose to waive it. This case presents one of many areas in which the New York Court of Appeals has digressed from the US Supreme Court in forming much stricter rules regarding a defendant’s right to counsel, which will be explored more fully below.

5. Special New York Rules – Right to Counsel

As discussed previously, states are able to interpret their own constitutions and give their citizens greater rights than afforded by the US Supreme Court when interpreting the US Constitution. This is probably nowhere as obvious in New York as in the assistance of counsel area. The rule in New York State is that a defendant may not waive his Miranda rights (to remain silent, to have an attorney) once his right to counsel has attached UNLESS his attorney is present. The Court has reiterated this in several cases (discussed below) and reasoned that the requirement to have an attorney present when a defendant was deciding whether to speak to police or to waive his right to that attorney would provide the defendant with a chance for professional guidance regarding the implications of that decision. The question in New York cases, then, is often centered around when the right of counsel attaches, making it no longer possible for a defendant to waive his rights in the absence of an attorney.

a. Arthur-Cunningham rule People v. Arthur, 22 NY2d 325 (1968) and People v. Cunningham, 49 NY2d 203 (1980) The Arthur-Cunningham rule has established that the right to counsel in New York attaches whenever an attorney enters the proceedings or when the defendant asks to consult with an attorney. In Arthur, the defendant’s attorney saw on the television news that the defendant, who the attorney represented on other matters, was arrested. The attorney went to the station and asked to speak to the defendant. He was told he could speak to him after the police were through; the defendant never asked for an attorney and made incriminating statements. The Court ruled that the statements made after the attorney “entered” the proceedings were inadmissible, even though the defendant himself had not specifically invoked his rights. In Cunningham, the defendant was arrested and, though he initially requested a lawyer, later told authorities he changed his mind (twice) and wished to waive his rights and speak to the police. He eventually gave an incriminating statement, which on appeal was ruled inadmissible by the NY Court of Appeals. These cases establish the NY–specific rule that, once an attorney enters the proceedings, the right to counsel has “attached” and rights cannot be waived without the attorney present. This rule applies regardless of whether the defendant has specifically asked for an attorney.

b. Rogers Rule People v. Rogers, 48 NY 167 (1979). In the Rogers rule, a defendant who is in custody and whose right to counsel has attached cannot waive his rights while in custody without his attorney present even for questioning on other crimes which are unrelated to the charge he is in custody for.

c. Samuels Rule People v. Samuels, 49 NY2d 218 (1980). In the Samuels case and subsequent cases, the Court of Appeals held the right to counsel attaches, and, therefore, the suspect cannot waive his rights without his attorney present, as soon as the criminal proceedings have been commenced against him. In the CPL, a criminal action is commenced when the first accusatory instrument is filed. In order to get a warrant, the police must file an accusatory instrument. So, whenever police obtain an arrest warrant, the defendant’s right to counsel has already attached, often without the defendant even aware of it. Taking this further, since the Payton case (see chapter 5 for full explanation) requires police to obtain an arrest warrant to arrest anyone in their home or in a home in which they are a guest, police may not question the suspect after such an arrest, and the suspect may not waive that right to talk to police, unless his attorney is present.

d. Free representation at what level “crime”? Under the federal system, based on the 6th Amendment and the Criminal Justice Act, 18 U.S.C. § 3006A representation must be provided for any financially eligible person who is charged with a felony or with a Class A misdemeanor and MAY be provided in the court’s discretion for Class B or C misdemeanors. It is clear that the federal system was originally intended to provide free representation for serious offenses; those for which the possible incarceration is substantial. However, Supreme Court decisions in two cases have extended the right to counsel originally articulated in Gideon v. Wainwright. In Argersinger v. Hamlin, 407 U.S. 25 (1972), the Court held that assignment of counsel is required in any case, no matter the classification of the charged offense, “that actually leads to imprisonment even for a brief period.” In Alabama v. Shelton, 535 U.S. 654 (2002) the Court held that a “suspended sentence that may ‘end up in the actual deprivation of a person’s liberty’ may not be imposed unless the defendant was accorded ‘the guiding hand of counsel’ in the prosecution for the crime charged.”

The NY State public defender system is not based on the federal constitution but rather on the NY Constitution, Article 1, Section 6. New York County Law article 18-B, which was enacted in 1965 shortly after the Court of Appeals’ decision in People v. Witenski, 15 NY2d 392 (1965) interpreting that section, provides that defendants must be assigned counsel if they cannot pay for the costs of representation in any case involving a charge which authorizes a period of imprisonment, no matter the source of the law – be it a penal law provision, a public health law provision, or a local ordinance. Only traffic infractions are exempted from this requirement, although even a traffic infraction that may result in incarceration may qualify a defendant for free representation. However, New York courts have recognized the standards announced in Agersinger and Shelton (see above) and have held that even if the language in County Law § 722-a provides otherwise, eligible defendants involved in traffic infraction cases should still be assigned counsel if the court has not precluded the possibility of imposing a sentence of incarceration.

ILS Report on Eligiblity requirements for counsel april

2016 Criteria and Procedures for Determining Assigned Counsel Eligibility

Final

April 4, 2016

Submitted by the New York State Office of Indigent Legal Services