The Law of Confessions

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


Karen Cioffi said...

Faye, what detailed information on the legality of confessions. Those with stories involving confessions should definitely save this as a reference.

Debbie A Byrne said...

I like reading mysteries. All those people being murdered and other crimes being committed. Who did it? Lots of details. And yes, I realize you can't put everything in a book, but sometimes my mind wanders and wonders.

Faye Tollison said...

Thanks, Karen. I thought it would make a good reference. I really didn't know myself how complicated the legalities of a confession were until I researched it. I'm definitely keeping the information for future reference (I have a great big notebook full of nothing but research).

Faye Tollison said...

Debbie, you are a good reader. That's what writers want...for you to read, let your mind take what you read and imagine the story like a play, and yes, wonder about certain parts of it. Some things you wonder about you can answer through your own imagination. Keep up the good work!

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