The 5th Amendment is a part of the U.S. constitution.

The Rights of the Fifth Amendment

The Fifth Amendment to the United States Constitution establishes several rights for criminal defendants or those who stand accused of committing a crime.

The two big ones are the

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

Actually, much more litigation results from the right against self incrimination. But let’s look at the actual words of the 5th amendment.

What does the fifth amendment actually say?

US Constitution Amendment V.

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 Come From Case Law

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).

See Also

• People v. Hicks, 132 Ill.2d 488 (1989) (he properly invokes)
• People v. Villalobos, 193 Ill.2d 229 (2000) (the standard for invoking right to counsel)
• People v. Wheeler, 226 Ill.App.3d 1092 (2nd Dist. 1992) (“my atty will be made at me” is that invoking right to counsel?)
• People v. Howerton, 270 Ill.Dec. 383, 782 N.E.2d 94 (3rd Dist. 2003) (this guy clearly invoked right to counsel)

“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)

See Also These Cases That Ask When Is A Defendant In Custody?

• People v. Slater, 228 Ill.2d 137 (2008) (custody determination is a threshold issue, this defendant had mental challenges that had to be taken into account)
• People v. Dalton, 91 Ill.2d 22 (1982) (defendant told them his age and birthday at booking and Miranda was not required to make this admissible)
• People v. Carroll, 318 Ill.App.3d 135 (3rd Dist. 2001) (when is defendant in custody?)
• People v. DeSantis, 319 Ill.App.3d 795 (1st Dist. 2000) (court takes an objective view and asks what a reasonably innocent person would think about the question of being in custody)
• People v. Rivera, 304 Ill.App.3d 124 (3rdDist. 1999) (was defendant in custody?)
• People v. Schoening, 333 Ill.App.3d 28 (2nd Dist. 2002) (was defendant in custody?)
• People v. Maltbia, 373 Ill.App.3d 622 (3rd Dist. 1995) (defendant in hospital but was he in custody?)
• People v. Ripplinger, 316 Ill.App.3d 1261 (5th Dist. 2000) (defendant not in custody while in the hospital)
• People v. Bates, 169 Ill.App.3d 218 (5th Dist. 1988) (Defendant in the hospital so not in custody)
• People v. Croom, 379 Ill.App.3d 341 (4th Dist.2008) (Defendant was 16 in a van and not in custody)

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.)

• People v. Garcia, 165 Ill.2d 409 (1995) (a defendant can be too drunk wo waive his Miranda rights)
• People v. Glass, 232 Ill.App.3d 136 (1st Dist. 1992) (involves an intoxicated defendant)
• People v. Silas, 278 Ill.App.3d 400 (2nd Dist. 1996) (involves another intoxicated defendant)
• People v. Kincaid, 87 Ill.2d 107 (1981) (confession induced after defendant was administered medication)

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)

• Dunaway v. New York, 442 US 200 (1979) (statements are out unless there is sufficient attenuation)
• Brown v. Illinois, 422 US 590 (1975) (confession is excluded no attenuation)
• People v. Gabbard, 78 Ill.2d 88 (1979) (confession is in – sufficient attenuation existed)
• People v. Hopkins, 382 Ill.App3d 935 (1st Dist. 2008) (problem defendant’s confession allowed because it was prompted by a do-defendant statement so attenuation was sufficient)
• People v. Bell, 105 Ill.App.3d 208 (1982 2nd Dist) (eye witness testimony attenuated)
• People v. Clay, 349 Ill.App.3d 517 (1st Dist. 2004) (Police can’t use other illegal info to claim attenuation)
• People v. Berry, 314 Ill.App.3d 1 (1st Dist. 2000) (lays out standard for attenuation of statements)
• People v. Jennings, 296 Ill.App.3d 761 (1st Dist. 1998) (not sufficiently attenuated even though used lawfully seized gun)
• People v. Murry, 312 Ill.App.3d 685 (1st. Dist. 2000) (statements in because defend held on a warrant)
• People v. Harris, 297 Ill.App.3d 1073 (1st Dist 1998) (outlines independent source standard)
• People v. Estrada (police hunch was main purpose so no attenuation – defendant ran)
• People v. Kruegar, 175 Ill.2d 60 (1996) (IL has its own exclusionary rule)
• People v. Smith 232 Ill.App.3d 121 (1st Dist. 1992) (results are out due to fruit of the poisonous tree)

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).

See Also

• People v. Carrero,345 Ill.App.3d 1 (2nd Dist.2003) (it’s a problem if defendant sustained injuries after he was detained and arrested)
• People v. Richardson, 2009 IL 105530 (defendant received a black-eye while in police custody)
• People v. Traylor, 331 Ill.App.3d 464 (3rd Dist. 2002) (injuries to defendant caused while he was in police custody)
• People v. Rogers, 246 Ill.App.3d 1993 (2nd Dist. 1993) (defendant suffering from anxiety and depression)

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 Also

• County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (being held for 48 hours without seeing a judge is presumptively constitutional but the true test is always voluntariness)
• People v. Willis, 215 Ill.2d 517 (2005) (held 73 hours but confession was still voluntary – what’s a Gerstein hearing?)
• People v. Nicholas, 218 Ill.2d 104 (2006) (held for 40 hours confession not coercive)
• People v. Macias, 371 Ill.App.3d 632 (1st Dist. 2007) (held for 57 hours and voluntary statement)

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).

Other Things To Remember About Juvenile Confessions

The biggest difference between adult and juvenile confessions is that a court is more skeptical of police and will closely scrutinize police conduct when a juvenile confesses to a crime.

Thus, the record has to be clear that a juvenile confession is voluntary.

A court will consider the totality of the circumstances including but not limited to:

• Age
• Background
• Experience
• Criminal History
• School Performance
• Mental Capacity
• Physical Condition or Infirmity
• Mental or Physical Abuse
• Promises Made
• Rights Read
• Duration of Detention

Length of Detention

The Juvenile Court Act in section 405 ILCS 5/410(c) says that a minor can be held for up to 12 hours after an arrest or up to 24 hours for violent crimes.

This is one factor a court will consider when judging the voluntariness of a juvenile confession. The court will also consider the…

• Type of room
• How big it was
• Did minor use the bathroom?
• Use phone?
• Eat anything?

Formality of Arrest

Any indicia of formal arrest will also be considered, including:

• Use of handcuffs
• Guns drawn
• Booked
• Told under arrest
• Read rights
• Restrained

Presence of Parent or Juvenile Youth Officer

The Juvenile Court Act requires that an officer make a reasonable attempt to inform a parent or guardian. What is considered a reasonable effort? A phone call notifying them that an arrest was made and where the minor is being held is sufficient.

In re G.O. says presence of a parent is not required although it’s a major factor.

Youth Officers are there to see to it that

• A minor is not mistreated
• They understand their rights
• That protocols are followed.

Typically, then a Youth Officer must not ask questions nor be actively involved in the interrogation.

See People v. Daniels, 326 Ill.App.3d 771 for a case saying that when parents show up and request to see or talk to the minor authorities must let them.

The Use of Deception

Generally, speaking police may use deception when interrogating a minor. However, a court will closely scrutinize the behavior when determining if the deception overcame the will of the minor.

All the above factors play into this calculus including the

• Number of times he denies things and
• Invokation of any rights.

These thigs show a minor understood their rights, was not afraid to, and knew how to utilize his rights.

Minors who misrepresent their age can’t then complain to a court about not receiving all the juvenile protections afforded them by the Juvenile Court Act.

Always remember, a technical violation of the Juvenile Court Act doesn’t mean the statement will be automatically barred.

See also People v. Rubio, 911 N.E.2d 1216, 331 Ill.Dec. 986 (2nd Dist.2009) (this 17 year old was lied to by police but it had little coercive effect)

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)

See More Juvenile Confession Cases

• People v. Westmoreland, 372 Ill.App.3d 868 (2007) (17 year old made an involuntary statement because he was intimidated by officer)
• People v. Minniti, (dad there but police deception upheld – this trickery and deception did not induce the confession)
• People v. Plumber, 306 Ill.App.3d 574 (JCA does not apply to automatic transfer cases like murder)
• People v. Johnson, 368 Ill.App.3d 1073 (mother present)
• People v. Gonzalez, (low IQ and no parents there)

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. Moore, 368 Ill.App. 549 (3rd Dist. 2006) (what happens when the tape malfunctions?)

► 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.)

Even More Illinois Cases On The Right To Remain Silent

• People v. Willis, 215 Ill.2d 517 (2005) (4th amendment violation not necessarily a 5th amendment violation)
• People v. Snow, 403 Ill.App.3d 734 (4th Dist. 2010) (when and where can the right to remain silent be invoked?)
• People v. Escalante, 309 Ill.App.3d 994 (the standard)
• People v. Edgeston, 157 Ill.2d 201 (1993) (when and where can the right to remain silent be invoked?)
• People v. Slater, 228 Ill.2d 137 (2008) (defendant was not in custody even though he was interrogated at the CAC)
• People v. Strong, 316 Ill.App.3d 807 (3rd Dist. 2000) (“i don’t want to say anymore.” is an invocation of the right to remain silent)
• Berghuis v. Thompkins, 560 U.S. 370 (2010) (remaining silent does nto invoke the right to remain silent)
• People v. Easley, 148 Ill.2d 281 (1992) (telling defendant he was subject to the death penalty was questionable but even worse was telling defendant they were obtaining information in behalf of defendant’s attorney)
• People v. Makes, 103 Ill.App.3d 232 (2nd Dist. 1981) (telling defendant things my go easier for him if he talks is not coercive)
• People v. Koesterer, 44 Ill.App.3d 468 (5th Dist. 1976) (telling her she could get a recognizance bond is one factor -this was a statement of leniency- in the test for voluntariness)
• People v. Overturf, 67 Ill.App.3d 741 (3rd Dist. 1979) (defendant was promised 1to 3 years if he talked and helped them with other burglaries this was properly suppressed)
• People v. Stone, 61 Ill.App.3d 654 (5th Dist. 1978) (defendant told it would be in his best interest to speak was held to be coercive)
• Illinois v. Lloyd Perkins, 496 U.S. 292, 110 S.Ct. 2394 (undercover officer does not need to read Miranda warnings when the defendant is unaware he is speaking to an officer)
• People v. Latona, 218 Ill.App.3d 1093 (2nd Dist. 1991) (no Miranda required when officer is working undercover)
• People v. Lashmet, 372 Ill.App.3d 1037 (4th Dist. 2007) (no Miranda required when officer is working undercover)
• Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246 (1991) (coerced because informant told defendant that he’d be protected from physical violence)
• People v. Shaw, 180 Ill.App.3d 1091 (officer took it upon himself to become interpreter of the law – improperly told defendant he possibly wouldn’t get help)
• People v. Sickley, 114 Ill.App.3d 167 (3rd Dist. 1983) (this guy was promised he wouldn’t lose his job and that was considered coersive)
• People v. Ruegger, 32 Ill.App.3d 765 (4th Dist. 1975) (offering to go to bat for the defendant is considered an offer of leniency and is considered coercive)
• People v. Rhoads, 73 Ill.App.3d 288 (1st Dist. 1979 ) (telling defendant they’d see to it that he got some help is considered coercive)
• People v. Johnson, 285 Ill.App.3d 802 (1st Dist. 1996) (leniency is defined here but this guy told that judge would give it some consideration was not considered coercive)

See The Following Cases For Examples Of Improper Inducements

• People v. Oaks, 169 Ill.2d 409 (1996)(state wins even after told judge would look favorably on him)
• People v. Bowman, 335 Ill.App.3d 1142
• People v. Shaw, 180 Ill.App.3d 1091 (psychiatric help through court)
• People v. Rhoads, 73 Ill.App.3d 288 (police would get him help)
• People v. Peck, 18 Ill.App.112 (told he could go home)
• People v. Ruegger, 32 Ill.App.3d 765 (promises of leniency made before confession)
• People v. Lashmet, 311 Ill.Dec. 368 (snitch informer case)
• People v. Moore, 306 Ill.Dec. 350 (promise that tape was recording interview violated westmoore)
• People v. Johnson, 307 Ill.Dec 153 (police trickery case)
• People v. Ragese, 346 Ill.App.3d 176 (interesting case – was defendant bargaining for a reduced charge?)
• People v. Kellerman, 342 Ill.App.3d 1019 (lied about deal)
• People v. Gorgis, 337 Ill.App.3d 960 (false deal case but state wins)
• People v. Peck, 86 Ill.App.3d 762 (promises of leniency but state wins)
• People v. Dozier, 67 Ill.App.3d 611 (told it would be in his favor to tell the truth but state wins)
• People v. Sickley, 114 Ill.App.3d 167 (defendant must have subjective belief in the promise)
• People v. Johnson, 285 Ill.App.3d 80 (voluntary even though toldthat judge may not look on him favorably)
• People v. Bowen, 87 Ill.App.3d 221 (promises to tell the truth)
• People v. Makes,103 Ill.App.3d 232 (promises to tell the truth)
• People v. Rubio, 392 Ill.App.3d 914 (modern case on trickery)
• People v. Stone, 61 Ill.App.3d 654 (pressure from probation officer lead to involuntary confession)
• People v. Perkins, 496 U.S. 292 (Miranda case involving cop posing as jail inmate)
• People v. Latona, 218 Ill.App.3d 1093 (cop working undercover)
• People v. Lashmet, 372 Ill.App.3d 1093 (cop working undercover)
• People v. Easley, 148 Ill.2d 281 (undercover cop said he was working for defendant’s attorney – big no no)
• People v. Prim, 53 Ill.2d 62 (precise nature of Miranda rights explained)
• People v. Arkebaur, 198 Ill.App.3d 470 (promise of leincy involidated confession)
• People v. McGuire, 39 Ill.2d 244 (promises of going better for defendant in court)
• People v. Hartramer, 31 Ill.2d 375 (promises of going better for defendant in court)
• People v. Strong, 316 Ill.App.3d 807 (threatened with DCFS)
• People v. Styles, 75 Ill.App.2d 48 (fear not good in an interrogation)

Cases Where Consent Was Involuntary Because The Police Lied

• People v. Kratovil, 351 Ill.App.3d 1023 (we can get a search warrant is not coerecive for valid consent to stand)
• People v. Bumper v. N.C., 391 U.S. 543 (cops can’ falsey claim they have a search warrant)
• People v. Goraf, 265 Ill.App.3d 746 (told them they could keep them up all night)
• People v. Cardenas, 237 Ill.App.3d 584 (initial refuas important)
• People v. Jones, 184 Ill.App.3d 412 (another fake warrant case)
• People v. Daugherty, 161 Ill.App.3d 394 (pretence leads to coercion)
• People v. Bailey, 273 Ill.App.3d 431 (search invalidated because police lied)
• People v. Walters, 187 Ill.App.3d 661 (another lie with bad search warrant)
  People v. Prinzing, 389 Ill.App.3d 923

We apply the Case Law Memory Formula to 3 confession cases. Episode 538 (Duration 16:32)

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