A
confession to a crime is considered a direct evidence of guilt, not a
presumption of guilt. It is the main thing most often used and relied upon for
a conviction.
The law of confessions is
rather involved and is a conglomeration of Constitutional law, Federal and
State statues (legislative law), and Anglo-American tradition. There are five
hurdles a confession must pass in order to be considered valid:
1. 4th Amendment exclusionary rule --
this rule forces a suppression hearing
anytime someone claims a
confession is not valid. In a nutshell, a
confession is not
acceptable if obtained illegally.
2. 5th Amendment self-incrimination
right -- no person shall be compelled in
any criminal case to
be a witness against himself. This entails testimony,
not physical evidence.
3. 6th Amendment right to counsel --
this is extended to all “critical” pretrial
phases of criminal
procedure.
4. 5th Amendment due process clause
-- this rule is combined with the 14th
Amendment due process
clause. Together they make up the basis for the
free and voluntary
rule and is the major test in the law of confessions.
5. McNabb-Mallory rule -- a legislative law
which prohibits any “undue
delay” in arraignment
and holds null and void any confession, no matter
how voluntary, if derived from lengthy delays
in bringing the suspect to
to justice.
The free and voluntary rule is
a two-part test involving subjective and objective factors. One part focuses on
the susceptibility of the suspect which includes: background of the suspect,
intelligence of the suspect, education of the suspect, prior experience with
the system, physical condition of the suspect, mental condition of the suspect,
and coping skills. The other part deals with the environment and methods used:
location of the setting, length of the questioning, intensity of the
questioning, frequency of the questioning, food and sleep deprivation, and
intimidating presence of officers.
The Anglo-American tradition
says that confessions must be a product of free will and voluntary choice. Free
will should not be “overcome,” and voluntary choice should not be “coerced.” In
other words, there must be a positive freedom of choice.
Suppression hearings generally
occur when the accused’s lawyer determines the confession was obtained
illegally. The motion for suppression must be made prior to trial, and the
burden of proof is on the defense lawyer that a search was illegal or a
confession was coerced. A motion for suppression is generally looked upon with
skepticism by the prosecutor and the judge as a delay tactic by the defense
lawyer.
As you can see, there is a lot
involved in the acceptance of a confession. As writers we cannot always go
through these steps in our story as it could be rather boring to our readers.
But there may be some of you who can use some part of this to enhance your
story or to even add suspense to a courtroom scene.
Faye
M. Tollison
Author
of: To
Tell the Truth
Upcoming
books: The Bible Murders
Sarah’s Secret
Member
of: Sisters in Crime
Writers on the Move
