CONFESSIONS – WAIVER OF RIGHTS

Criminal Law & Procedure:Evidence:Confessions

A confession must be voluntary in order to be admitted into evidence in a criminal proceeding. When a person makes a confession, he or she is waiving his or her right against self-incrimination under the Fifth Amendment of the United States Constitution. The person may also be waiving his or her right to counsel under the Sixth Amendment of the United States Constitution.

If a person is in custody, is subject to police interrogation, and makes a confession, the prosecution must show that the person waived his or her self-incrimination rights and his or her right to counsel in order for the confession to be admitted at a trial. The prosecution must prove that the waiver was freely and voluntarily made and that it was knowingly and intelligently given.

A waiver with regard to a confession depends upon the facts and circumstances of each case and depends upon a person’s age, experience, mental capacity, and conduct. Although an express statement that the person is waiving his or her rights is not required, the waiver cannot be implied from the person’s silence or failure to act. Also, the person does not waive his or her rights by merely stating that he or she has been informed of his or her rights.

In order to make a valid waiver, a person must understand his or her rights. The person’s intelligence, mental capacity, and literacy must be taken into account. Although the fact that the person has a low intelligence does not necessarily mean that the waiver is involuntary, such a waiver is subject to more scrutiny by the courts.

A waiver is invalid is it is coerced, if it is obtained through deceit or trickery, if a person has been threatened, or if promises of leniency have been made. If the waiver is obtained as a result of these methods, it is involuntary and is inadmissible in a court of law.

Once a person makes a valid waiver of his or her rights, the waiver is not necessarily permanent. The person has a right to reassert his or her rights after the valid waiver. Whether the person has permanently waived his or her rights depends upon the length of time between initial questioning and additional questioning, whether the person was informed of his or her rights prior to the additional questioning, and whether the police honored the person’s initial invocation of his or her rights.

A person may also invoke his or her rights and later waive those rights. However, a waiver subsequent to a prior invocation of rights is subject to special scrutiny by the courts. The police cannot initiate contact with the person. The person must initiate the contact with the police. The person’s contact with the police must show a willingness and a desire on the part of the person to talk to the police about the offense with which he or she is charged. Questions that are unrelated to the offense do not constitute a subsequent waiver of the person’s rights. The person must make a valid waiver of his or her rights prior to any additional questioning.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.