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People v. Flores, 2014 IL App (1st) 121786 (November). Episode 030 (Duration 19:46). Right to remain silent must be scrupulously honored by the police.

What is the fifth amendment?

US Constitution Amendment V.

The Fifth Amendment to the United States Constitution establishes several rights for criminal defendants.

The two big ones are the

• Double jeopardy clause and the
• Right against self incrimination.

Actually, much more litigation results from the latter provision.

So What Is The Fifth Amendment?

The Illinois Equivalent To The Fifth Amendment (Section 10. Self-Incrimination And Double Jeopardy)

The Illinois constitution also has enacted a similar provision containing some of the same rights mentioned in the fifth amendment of the U. S. constitution.

The Illinois Constitution says that,

Ill. Const. 1970, art. I, § 10.

The words saying,

“no person shall be compelled to be a witness against himself or give evidence against himself”

lead to tons and tons of litigation in criminal cases.

Criminal Confession Cases

In many ways, the fifth amendment is all about the legality of a criminal confession.

• When is a criminal confession legal?
• What are the rules and regulations around criminal confessions?
• When can a person be asked to make a statement?
• When can it be prohibited?

What Is Self Incrimination?

Much of the back and forth that happens in a criminal case revolves around concepts that pertain to self incrimination and criminal confessions.

The constitution flatly says a defendant can’t be forced to testify against himself, but that’s not the same as giving a statement or a confession to authorities before trial.

Below you’ll find a small snap shot of some of the issues discussed by Illinois court options pertaining to criminal confessions, self incrimination and the fifth amendment.

The topics covered include:

• Miranda Warnings
• Attenuation Doctrine
• Voluntary Confessions
• Juvenile Confessions
• Recorded Interrogations

Miranda Warnings

In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme Court prescribed a set of prophylactic warnings that a police officer must provide to a suspect before conducting a “custodial interrogation.” These warnings are intended to protect a suspect’s fifth amendment right against self-incrimination. Michigan v. Tucker, 417 U.S. 433, 444 (1974).

The Supreme Court recognized that, due to the inherently coercive nature of custodial interrogation, procedural safeguards are necessary to protect the privilege against self-incrimination in that setting. The warnings required by Miranda are intended to ensure “that a suspect knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time.” Id. at 574.

Miranda was motivated by concerns “that the ‘interrogation environment’ created by the interplay of interrogation and custody would ‘subjugate the individual to the will of his examiner’ and thereby undermine the privilege against compulsory self-incrimination.” Rhode Island v. Innis, 446 U.S. 291, 299 (1980) (quoting Miranda, 384 U.S. at 457-58).

Once a suspect invokes his right to counsel under Miranda, officers must stop questioning him until counsel is present. Edwards v. Arizona, 451 U.S. 477, 482 (1981) (citing Miranda, 384 U.S. at 474). This allows the suspect to “control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation.” Michigan v. Mosley, 423 U.S. 96, 103-04 (1975).

Once a suspect in custody has invoked his right to counsel, all questioning must cease until counsel is present unless the suspect initiates further discussion. Edwards, 451 U.S. at 484-85.

The Miranda warnings assure that any inculpatory statement made by an individual held in custody is not simply the product of “ ‘the compulsion inherent in custodial surroundings.’ ” Yarborough v. Alvarado, 541 U.S. 652, 661 (2004) (quoting Miranda, 384 U.S. at 458). Miranda further holds that where an individual is subject to a custodial interrogation without the benefit of the prescribed warnings, the prosecution may not use that individual’s inculpatory or exculpatory statements at trial. Miranda, 384 U.S. at 492.

Statements obtained in violation of Miranda and its progeny are presumptively nonvoluntary. As such, they may not be admitted into evidence. People v. Schuning, 399 Ill. App. 3d 1073, 1082 (2010).

“Question First Warn Later”

In the seminal case of Missouri v. Seibert, 542 U.S. 600, 617 (2004), the United States Supreme Court condemned the “question first, warn later” interrogation technique and mandated the suppression of statements that resulted from use of that tactic.

Under the “question first, warn second” technique, an officer initially interrogates a suspect, obtains an incriminating statement, then provides the Miranda warnings, and repeats the question until the accused repeats the answer provided before the warnings.

Miranda warnings given after eliciting a confession would be ineffective in conveying to a defendant the nature of his rights, including the right to remain silent, and the consequences of abandoning those rights.

When Was He Arrested? (Custodial Interrogation)

“Custodial interrogation” means “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.” It consists of two elements:

(1) Whether an individual was subject to interrogation and
(2) Whether the interrogation occurred in a custodial situation.

People v. Tayborn, 2016 IL App (3d) 130594, ¶¶ 18-19. See additional confession cases.

Many times when a defendant is challenging improper missing Miranda Warnings the first question the court must answer is if the defendant was even under arrest?

This test is objective.

A person’s decision to voluntarily accompany police officers means that he or she has not been arrested. In considering whether an arrest has occurred, the court is to consider the following factors:

(1) The time, place, length, mood, and mode of the encounter between the defendant and the police;
(2) The number of police officers present;
(3) Any indicia of formal arrest or restraint, such as whether the officers used handcuffs or drew their guns;
(4) The officer’s’ intention;
(5) The defendant’s subjective belief or understanding;
(6) Whether the defendant was informed that he or she could refuse to accompany the officers;
(7) Whether the defendant was transported in a police car;
(8) Whether the defendant was informed that he or she was free to leave;
(9) Whether the defendant was informed that he or she was under arrest; and
(10) The language used by the officers.

► People v. Garza, 2018 IL App (3d) 170525 (December). Episode 570 (Duration 7:03) (Roadside Custodial Interrogation Required Miranda Warnings)

► No single factPeople v. Buschauer, 2016 IL App (1st) 142766 (February 2016). (Episode 143 Duration 4:27) (Reasonable Person Would Have Felt Free To Leave This Interrogation)

Waiver Must Be Knowing & Intelligent

The Court explained that the right to counsel embodied in Miranda is sufficiently important that, once a suspect invokes that right, it warrants the special protection of the knowing and intelligent waiver standard. As such, the Court held that a valid waiver of that right cannot be established by showing only that the suspect responded to further police-initiated custodial interrogation.

This is a rigid brightline rule. See Smith v. Illinois, 469 U.S. 91, 98 (1984). It exists to prevent police officers from “badgering” a suspect or engaging in conduct designed to wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance. However, the rigid bright-line rule of Edwards is applicable only if the suspect actually invokes his right to counsel. See Davis v. United States, 512 U.S. 452, 458 (1994).

The test for voluntariness is whether the defendant made the decision freely, without compulsion or inducement, or whether the defendant’s will was overborne at the relevant time.

To implement this test, we consider the totality of the circumstances surrounding the statements, including –

The duration of the interrogation had been relatively brief.

► See also People v. Mandoline, 2017 IL App (2d) 150511 (February). Episode 316 (Duration 12:31) (Defendant knowingly waived his rights and agreed to talk to police even though he originally may have refused to talk to them.)

Ambiguous Or Equivocal Invocation Does Not Count

To do so, a suspect must express his desire for the presence of counsel sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the suspect’s statement is ambiguous or equivocal in light of the circumstances, the Edwards rule does not apply, and the officers may continue questioning the suspect. 

Whether a suspect has unambiguously invoked his right to counsel is an objective inquiry. 

The Equivocal Invocation Rule

The Supreme Court clarified that, after an accused has invoked this right, the police cannot show a valid waiver of that right simply by demonstrating only that he responded to further police-initiated custodial interrogation; an individual who has indicated that he wishes to deal with the police only through counsel is not subject to further interrogation by the police until after counsel has been made available to him, unless the accused himself initiates further discussion with the police.

Police will violate this rule if they approach the accused for further questioning without first making counsel available.

The upshot is that any waiver of the right to counsel given in a discussion initiated by the police will be presumed to be invalid, and any statements obtained pursuant to the presumptively invalid waiver will be inadmissible in the State’s case-in-chief.

Attenuation Doctrine

After a confession is ruled unconstitutional the state gets a chance to argue that it nonetheless be admitted. If the confession is sufficiently attenuated then it may be admissible.

Attenuation analysis under the fourth amendment is distinct from the threshold question of voluntariness under the due process clause. The absence of physical abuse or coercion, and the voluntariness of the statement, are merely threshold requirements for its admissibility.

As a result, the fact that a trial court found no physical abuse or coercion does not resolve the issue of attenuation.

To satisfy its burden, the State must prove by clear and convincing evidence that the challenged evidence was obtained by means sufficiently distinguishable to be purged of the primary taint. Clear and convincing evidence means evidence greater than a preponderance of the evidence but less than proof beyond a reasonable doubt.

To determine whether a statement is attenuated from an illegal arrest, courts generally consider the following factors:

Of these four factors, the presence of intervening circumstances and the flagrancy of the police conduct are the most important.

No Attenuation

Evidence tending to show that the defendant committed the crime can be an intervening circumstance in one of two ways:

See More Attenuation Cases

► People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 273 (Duration 9:35) (Multiple Officers In Your Bedroom In The Dead of Night Leads To Custodial Interrogation)

► People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 274 (Duration 12:33) (Part 2: Is The Confession Sufficiently Attenuated To Be Allowed Into Evidence?)

► People v. Hernandez, 2017 IL App (1st) 150575  (March). Episode 332 (Duration 11:51) (Attenuation Doctrine Is Used To Admit A Confession That Was Obtained Illegally)

► People v. Gempel, 2016 IL App (3d) 140833 (January). Episode 161 (Duration 5:55) (Arrested Without Probable Cause And Defendant Held For 37 Hours With No Significant Attenuation)

► See also People v. Soto, 2017 IL App (1st) 140893 (January). Episode 291 (Duration 11:45) (Miranda-less confession was cured of the taint of the constitutional violation.)

In re Jarrell C., 2017 IL App (1st) 170932 (December). Episode 447 (Duration 14:47) (State Argued For Application Of The Attenuation Doctrine In The Face Of This Obvious 4th Amendment Violation)

Voluntary Confession

A confession must be voluntary or risk being suppressed. See People v. Willis, 215 Ill 2d 517. 535 (2005) (holding that a trial court facing a Gerstein/McLaughlin violation asks the question whether the confession was voluntary).

“It is *** axiomatic that the defendant’s constitutional rights have been violated if his conviction is based, in whole or in part, on an involuntary confession, regardless of its truth or falsity. [Citations.] This is so even if there is ample evidence aside from the confession to support the conviction [citations].” Miranda v. Arizona, 384 U.S. 436, 464 n.33 (1966).

If an individual’s “will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973) (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)).

The test for determining whether a confession was voluntary is whether the defendant made the statement freely, voluntarily, and without compulsion or inducement of any sort, or whether the defendant’s will was overcome at the time he or she confessed.

General Factors

To determine whether a defendant’s confession is voluntary, we consider the totality of the circumstances and the following factors:

(1) Age
(2) Intelligence
(3) Education
(4) Experience
(5) Physical condition at the time of the detention and interrogation
(6) The duration of the interrogation
(6) The presence of Miranda warnings
(7) The presence of any physical or mental abuse and
(8) The legality and duration of the detention.

Defendant’s statement was voluntary unless his will was overcome by the police at the time he confessed. People v. Gilliam, 172 Ill. 2d 484, 500 (1996).

Delayed Detention (The 48 Hour Rule)

Sometimes a defendant may allege that he was held for more than 48 hours after his arrest without seeing a judge. This is a violation of the 48 hour rule and is considered a factor weighing in favor of an involuntary statement.

See Gerstein v. Pugh, 420 U.S. 103 (1975) (holding that a defendant arrested without a warrant and charged by an information must be promptly presented to a neutral magistrate for a determination whether probable cause to arrest exists).

Also, an accused in custody must, generally, be taken before a neutral magistrate for a probable cause hearing within 48 hours of arrest. See County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).

See More Voluntary Confession Cases

► People v. Phillips, 2018 IL App (3d) 130270 (February). Episode 479 (Duration 13:35) (Murder Confession Crossed The Line When They Called Him A “Baby Killer”)

► See also People v. Suggs, 2016 IL App (2d) 140040 (June). Episode 199 (Duration 9:35) (Defendant held for 98 hours before his probable cause hearing)

► People v. Hardimon, 2017 IL App (3d) 120772 (May). Episode 378 (Duration 9:56) (When Can Aggressive Interrogation Go Too Far?)

► People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (Duration 18:22) (Involuntary confession when the state wouldn’t let defendant call his mom.)

Juvenile Confessions

Illinois courts have long recognized that receiving a confession from a juvenile is a “sensitive concern.”

As a consequence, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.

Thus, in determining whether a juvenile’s confession was voluntarily given, relevant considerations include

(1) The juvenile’s age, intelligence, background, experience, education, mental capacity, and physical condition at the time of questioning;
(2) The duration of the detention, including whether the police physically or mentally abused the juvenile or employed trickery or deceit in obtaining the confession; and
(3) Whether the juvenile had an opportunity to speak with a parent or other concerned adult prior to or during the interrogation, including 13 whether the police prevented or frustrated such opportunities.

No single factor is dispositive; rather, the courts must consider the totality of the circumstances surrounding the confession.

The “Juvenile Confession” Statute – Miranda Requirement

In Illinois the Juvenile Code in Subsection (a-5) of section 5-401.5 was added to the Act by an amendment effective January 1, 2017. Pub. Act 99-882, § 10 (eff. Jan. 1, 2017) (amending 705 ILCS 405/5-401.5).

Section 5-401.5(a-5) of the Act provides as follows:

“An oral, written, or sign language statement of a minor, who at the time of the commission of the offense was under 18 years of age, is presumed to be inadmissible when the statement is obtained from the minor while the minor is subject to custodial interrogation by a law enforcement officer, State’s Attorney, juvenile officer, or other public official or employee prior to the officer, State’s Attorney, public official, or employee:

(1) continuously reads to the minor, in its entirety and without stopping for purposes of a response from the minor or verifying comprehension, the following statement: ‘You have the right to remain silent. That means you do not have to say anything. Anything you do say can be used against you in court. You have the right to get help from a lawyer. If you cannot pay for a lawyer, the court will get you one for free. You can ask for a lawyer at any time. You have the right to stop this interview at any time.’; and
(2) after reading the statement required by paragraph (1) of this subsection (a-5), the public official or employee shall ask the minor the following questions and wait for the minor’s response to each question:

(A) ‘Do you want to have a lawyer?’
(B) ‘Do you want to talk to me?’ ”

705 ILCS 405/5-401.5(a-5), 705 ILCS 405/5-401.5(b).

Overcoming The Presumption

Subsection (f) of section 5-401.5 allows for the presumption of inadmissibility to be overcome “by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.”

705 ILCS 405/5-401.5(f).

See Also Other Juvenile Confession Cases

► In re Jose A., 2018 IL App (2d) 180170 (October). Episode 557 (Duration 22:10) (Making Sense Of The Illinois Juvenile Interrogation Statute)

► People v. Edwards, 2017 IL App (3d) 130190-B (January). Episode 300 (Duration 5:42) (17 Year Old With 5th Grade Reading Level And Mental Disorders Gives A Voluntary Statement)

► People v. McArthur, 2018 IL App (1st) 150626 (June). Episode 515 (Duration 8:15) (17 year old held for 73 hours before a probable cause hearing nonetheless gave a voluntary confession.)

► In re S.W.N., 2016 IL App (3d) 160080 (July). Episode 210 (Duration 11:57) (This Voluntary Confession is Suppressed, Minor With IQ 70)

► People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (involuntary confession in part because 17 year old defendant not allowed to call his mom)

Recorded Interrogations

In Illinois only interrogations in a murder case must be recorded. 725 ILCS 5/103-2.1(b) requires strict compliance with the recording of murder interrogations.

This law specifically says that:

An oral, written, or sign language statement of an accused made as a result of a custodial interrogation conducted at a police station or other place of detention shall be presumed to be inadmissible as evidence against the accused in any criminal proceeding brought under [the murder sections of the code] unless:

(1) an electronic recording is made of the custodial
interrogation; and
(2) the recording is substantially accurate and not intentionally altered.

Lower down in the code, Section 103-2.1(d) of the Code provides:

“If the court finds, by a preponderance of the evidence, that the defendant was subjected to a custodial interrogation in violation of this Section, then any statements made by the defendant during or following that nonrecorded custodial interrogation, even if otherwise in compliance with this Section, are presumed to be inadmissible in any criminal proceeding against the defendant except for the purposes of impeachment.”  725 ILCS 5/103-2.1(d).

So, regardless of the fact that the subsequent statements were recorded.

All the statements are out, unless an attenuation hearing cures the presumption of inadmissibility.

What Happens When The Interrogation Is Not Recorded?

The code further states that:

“The presumption of inadmissibility of a statement made by a suspect at a custodial interrogation at a police station or other place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.”

725 ILCS 5/ 103-2.1(f). 

So when a murder interrogation is not recorded, there is a presumption of inadmissibility as evidence  of that statement.

However, if the prosecution can establish that the statements made in the interrogation were still voluntary then the statements can be admitted in evidence despite the fact that they were not recorded.

► People v. Green, 2014 IL App (3d) 120522 (August). Episode 021 (Duration 13:11) (What Happens When The Equipment Malfunctions And A Confession Is Not Recorded?)

► See also People v. Little, 2016 IL App (3d) 140124 (March). Episode 158 (Duration 8:10) (Police Fail To Record A Murder Confession And The Taint From The Bad Confession Still Stunk Up The Place)

See More Criminal Confession Cases

• Episode 538 (Duration 16:32) (3 Illinois Confession Cases Where Defendants Ask For Their Mom: A Memory Formula Application)
• People v. Boston, 2018 IL App (1st) 140369 (December). Episode 580 (Duration 9:54) (In Illinois Post Arrest Silence Even Before Miranda Generally May Not Be Commented On)
• People v. Firestine, 2019 IL App (5th) 180264 (July). Episode 682 (Duration 8:51) (Defendant says he doesn’t want to answer “that” question, is that invoking his right to remain silent?)
• People v. Spicer, 2019 IL App (3d) 170814 (March). Episode 602 (Duration 11:56) (Police can’t compel you to give up your cell phone pass code.)
• People v. Burgund, 2016 IL App (5th) 130119 (November). Episode 265 (Duration 22:49) (Super weird case were crazy wife and mother-in-law coerce a false confession.)
• People v. Tayborn, 2016 IL App (3d) 130594 (March). Episode 159 (Duration 4:42) (Question Intended To Illicit An Incriminating Statement Are Almost Always An Interrogation)
• People v. Wright, 2016 IL App (5th) 120310 (January). Episode 128 (Duration: 5:20) (Confession is Suppressed After Functional Equivalent of an Interrogation)
• People v. Flores, 2014 IL App (1st) 121786 (November). Episode 030 (Duration 19:46). (Right to remain silent must be scrupulously honored by the police.)