Interrogations-and-Confessions-Handbook

The American Law on Confessions 293
The court commented, ‘Requiring law enforcement officials engaged in criminal
investigations at mental hospitals to take extra steps to protect the rights of
patients with mental disabilities does not create an unnecessary burden’. 35 The
court’s unusually detailed analysis of the totality of circumstances illustrates
how mental disability and police conduct may combine to make a confession
involuntary.
CHALLENGING A CONFESSION IN COURT
The Legal Procedures
As already noted, when the prosecution proposes to use a defendant’s confession
against him at trial, the defendant is entitled to a pre-trial suppression
hearing before a judge where the prosecution must show that the defendant
made a knowing, intelligent and voluntary waiver of his Miranda
rights and that neither the waiver nor the confession itself was extracted by
coercion. In contrast to a trial, the issue before the suppression court is limited
to the voluntariness, not the reliability of the confession. Thus, a finding
that Miranda rights were not properly given should result in the suppression
of the resulting confession, without consideration of the defendant’s guilt or
innocence.
At the suppression hearing, the defendant may argue that the Miranda
rights were not properly administered, that he did not understand them, that
his attempts to assert his rights were ignored or that he was induced to waive
them by improper means, such as threats, promises or lengthy interrogation
without food or sleep. The interrogating officers, on the other hand, will usually
testify that the defendant’s rights were honored in every respect, or that
the defendant was neither ‘in custody’ nor being ‘interrogated’ when he made
the incriminating statement. In practice, a suppression hearing often amounts
to a swearing contest between the two sides because it is impossible to prove
police impropriety where in most states interrogations are not mandatorily audio
or video recorded (McMahon, 1993). In several of the American cases one
of us (GHG) has worked on, the interrogations were not contemporaneously
recorded throughout and an audio or video recording was only obtained after
the suspect’s resistance had been broken down during a previous interrogation.
Therefore, even if the police had acted coercively in any of these cases it would
have been impossible to prove in court.
If the confession is suppressed, the prosecution may not use it in its direct
case and if it is the only evidence connecting the defendant to the crime, the
prosecution’s case will collapse. The prosecution may, however, appeal the hearing
court’s decision to suppress. On the other hand, if suppression is denied,
the defendant cannot appeal until after he has been convicted. If the appellate
court finds that the confession was improperly admitted, the court will apply
the ‘harmless error rule’. This means that the conviction will be struck down unless
the prosecution can show that the error was harmless beyond a reasonable
35 United States v. Zerbo at ∗ 13.