Until the Miranda rule was introduced, there was the wide definition of the compulsion that made the courts to start turning back to other optional tests in regard to the confession rule. There has been evidence in the cases that are known as the exception Miranda cases that had the trend to return to the very necessary process of the rule of involuntary confession. These cases were very contradictory to the Miranda in their establishment that the process of custodial interrogation by its real sense does not amount to self- incrimination violation clause.

            The first significant limitation that was in violation of Miranda right was realized in the major case of Harris v. New York in 1971. The court had introduced the exclusion rule for Miranda which had limited provisions. Therefore, it could only be used to the statements that weree Mirandized by the existing prosecution in the case. The prosecutors were allowed to use the voluntary but not the Mirandized statements in the event of impeaching the defendants that weree willing to testify. The possible underlying rationale in the argument wass that those individuals that were accused had no provision of their right to testify but they could have chosen to testify at any given point then they were denied the right to perjure for themselves.

            In case the suspects had given voluntary statements to the police, it was not important whether their Miranda warning was provided to them or not as the statement was enough to be used in their impeachment, like any other traditionally voluntary which holds that the prior statement could be very useful in the impeachment of any witness upon cross-examination. After the case of Harris v. New York, it became a confirmed law. In other words, the evidence that is not likely to be adduced to be part of the prosecution case, can be used in the cross-examination of a person accused whose testimonies are inconsistent with other elements in his confession or in very rebuttal of the earlier given testimony. In the Michigan v. Tucker’s case at the Supreme Court in 1974, it was considered that results of the statement of evidence of un-Mirandized was acceptable and admissible.

            In particular, according to the poisonous tree doctrine, the ordinary fruit which does not include the evidence earned indirectly in breach of a given constitutional right is not applicable to the breaches outlined in the Miranda warning. The equivalent exceptions in connection to the rule of the involuntary confessions are not there. The state of conviction of the accused, as it was in the Michigan v. Tucker, was obtained using the evidence from a witness when the police discovered his identity at the time of the un-Mirandized which was the defendant’s voluntary interrogation. According to the court, interrogation of the un-Miranda was characterized only as a prophylactic standard abandonment that was set down in Miranda. However, it never meant to be a violation of core privileges of a defendant against self incrimination.

            Mirandized statement was accepted as evidence by the Supreme Court in 1985 in the case of Oregon v. Elstad that marked the first fruit of un-Mirandized statement. Then the Court approved it by indicating that as long as the second statement was voluntary, it could be admitted. Therefore, the Court made it clear that despite the fact that police did not manage to make an inclusion in the Miranda warning, it gave the priority to the advice of the second statement. The latter implies that the first inadmissible statement did not by itself render the second statement to be involuntary. The 1984 case of New York v. Quarles was one where the public safety exception was adopted by the Supreme Court and added to the requirements of the Miranda warning. The exception is very effective when the police officers posses a rather alarming interest in the interrogation of a suspect so that the potential of the imminent danger to the public is diverted from both, general public and police themselves. Therefore, in the case of New York v. Quarles, the police were informed that an armed rapist was hiding in a grocery store. The rapist had no gun at the time he was arrested at the back of the store. At that time, police never gave him the Miranda warnings but only asked him to give the gun or its whereabouts. After that he pointed at the gun and so, the police discovered a loaded gun.

            During the Court admission, both the gun and the statement were considered to be a matter of public safety. There has been a recent case that dealt with Miranda’s exception, the case of Missouri v. Seibert. The Court assessed the situation where there was an intentional failure of the police to Mirandize a suspect with the main intention to make him confess and then later Mirandize the same suspect, so that they could get his earlier confession in a written form. When it came to Court, it refused to use Elstad in such situation and, thus, created a bad faith. 

Similarly, the Court recently addressed the issue of fruits in the case of United States v. Patane. In this case, the Court held that those fruits that are tangible have no difference as compared to other kind of the Miranda fruit. Moreover, the rule of Tucker-Elstad applies to admission of such fruits despite Mirandized failure.

            The reasoning of the Court is summarized as follows. The Miranda exceptions may be characterized by the constitutional rule that should fit most of the people having the need to maintain the clause that is self-incriminating and any other rule that is meant to protect it. In conclusion it was indicated that since the 5th amendment basically had no application to the evidence that was non-testimonial, the reason for adopting a prophylactic Miranda extension was not necessary, especially in the exclusion of non-testimonial evidence that was obtained pursuant to contradict a statement that was voluntary. It is clear that in the mentioned cases, particularly those when the warnings of Miranda had not been issued, in the first place the Court could examine the statement to establish if it was likely not to be reliable and also to know whether the misconduct of the police had a substantive violation process. If it proves not possible even without the Miranda warnings then it would be very likely that the there would be an admission of evidence in those cases.

Restatement in Dickerson

            In 2000 there was a need during the case of Dickerson for Unite States Supreme Court to be provided with an opportunity for clarification of the confessions law, and also clarify the confusion that emanated from existing post-Miranda case law. In this case Dickerson was considered to be a prime suspect in armed robbery and before being questioned by the police he confessed to that accusation and other offences that were similar to that. During a preliminary hearing, there had been a ruling from the District Court holding that all the confessions in this case had been affected and Dickerson was aware of his Miranda rights as he had already been informed. The main concern of the Supreme Court was to be aware if there was overturning of Miranda in the federal cases by the legislation of the Congress known as 18 USC & 3501. It then made provision that the admissibility of a confession in evidence shall be so only if it is purely voluntary and circumstances completely reflect circumstances that the test can be relevant to determine the admissibility of a confession. In this case the Court was responsible to provide the answer to the question of whether in Miranda’s announcement was a constitutional rule or was just a mere exercise of its responsibility and authority to supervise and to regulate the evidence when the congressional direction was not present.

The Supreme Court in the Dickerson held that Miranda warning decision components were in the sense of the intention to act as a constitutional ruling. Therefore, there was the acknowledgement by the Court that other subsequent cases had caused a very drastic reduction on the impact of rule of Miranda on the enforcement of its legitimate law, thus, making the reaffirmation of the core ruling of the decision that the statements were unwarned and could not be admissible as evidence in regard to the case of prosecution in chief. The description of the Miranda warning by the Chief Justice included the information that it had become part of the United States national culture, and then made a conclusion that the traditional voluntariness, as stipulated in the due process clause, was a substitute that was very ineffective as it had more difficulties for the police to operate within it, and also for the court to have consistent application of the same clause.

Various Theories in the Law of Confessions

            There are different theories or rationales that have been developed over time. The confessions theories include the theory of protection of an individual against self-incrimination and one having a right to remain silent, the theory that the confession must be convincingly reliable, the theory of abusive interrogative practices to be deterred or prevented and then the rights of the suspects protection in making autonomous decisions.

a)      Privilege against Self-Incrimination

            This is the theory behind the rule of confession and the test of voluntariness. It is based on the privilege that is against the self-discrimination. According to it, every person is entitled to a free choice regardless of his choice to confess or not. Moreover, no one can be forced to, tricked into or otherwise pressured to confess. There was an agreement in the European Court on Human Rights about a policy justifying the elimination of confession through its holding that the main objective is determined in the privilege against self-incrimination. In particular, it offers protection to the accused person for his free choice to speak voluntary or remain silent. The European Court established that the existing right to fair trial as envisaged in the 6th article of the European Convention on human rights provides that an accused person has absolute privilege against self-incrimination. Pattenden puts it so powerfully that there are several rationales underpinning the privileges. Therefore, there is need to ensure discouragement of improper physical or even the psychological pressure, avoid the miscarriages of human dignity, respect and justice and the autonomy.

            The above statement indicates how various rationales are interrelated, and displays the convolution of those theories surrounding the confession law. There is variation in the implementation and the interpretation of the existing privileges against self-incrimination depending on a given jurisdiction. For instance, the jurisdiction in the United States provides that no one shall witness against himself in any criminal case under any kind of influence. However, it only offers a standard in regard to compulsion. This focuses on the behavior and the main aim of the interrogator. It is in the perspective of Gosey, where he noted that such kind of an objective test is quite different than it is in the voluntariness test that takes a lot focus on the subjective mind of the suspect. This in actual sense would mean that much focus is on the compelled confessions but not the one for the involuntary. Such interpretation is followed by some of the American jurisprudence when the involuntary confessions are held inadmissible. This does not mean that the made confessions are not likely to be true, but as a result of the extraction methods used that create an offence on an underlying principle during the enforcement of the criminal law. It is the accusatorial and not the system of inquisitorial, i.e. a system where the state is obligated to establish guilt through independent evidence and secured freely.

b)     Ensuring Reliability of the Confession

            The simple stated involuntary statements need to be inadmissible under the rationale that is often presented for the law of confessions. This is explained by the fact that it has an intention to weed out the statements that are potentially unreliable. When the case of Warickshall in 1783 was in reference, the Court established that the involuntary statements in the case were inherently not reliable. There are others that wrote on the inherent in regard to the coerced confessions.

The rule of confessions has prohibited some conduct in respect to the authorities through its interpretation. This is explained by the fact that it may result in the evidence that is very unreliable. The use of some inducements, oppressive circumstances and sometimes threats, all have been considered to some extent in this jurisdiction as the possible influence to the suspect to incriminate themselves falsely. The basic of this rule of tradition is that the voluntary confessions must have very reliable indications of substantive guilt.

            Research has been done as a result of the great concern in terms of false confessions and it has been evident from the research that some individuals caught up in certain situations may be extremely vulnerable to make statements that are false, and these people at risk are the young, those deprived of sleep, the ones disabled intellectually and those in withdrawal are the most probable victims. When reliability becomes a major consideration to exclude confessions in some situations, it is prudent that the judges are aware of the evidence of social science that can cast doubt on the substance of the confessions so that their discretion can be used to exclude the unreliable statements.

c)      Preventing abuse Interrogation Practices (Deterrence)

            Those confessions that are obtained through oppression are sometimes excluded even when there is reasonable evidence that they are true. Commentators have particularly cited this kind of rationale as the abusive police interrogation that is so deterring when there is an exclusion of such confessions by the Court. Such kind of practice depicts the intended enforcement of the minimal standards on the behavior of police as the aim of the misconduct by police is in most cases to contain a confession. In the British House of Lords, there was the description of the control of police misconduct as part of the efficient rationale when excluding the improper confessions obtained. There was deliberation on the recent English case law by the Lords.

            It was established that rejecting a confession that is improperly obtained is not in any case only dependent on a possible lack of reliability, but also upon the existing principle that a person cannot be influenced or compelled to his own incrimination. Moreover, upon the major factors that are relevant in a society that is civilized, the police should follow suit or have proper behavior to those suspects in their custody.

            Other written materials have the concern of the normative with different interrogation methods and then how the methods would work in the true sense of justice. This is outlined on the ground that police have no option but to observe the law as they enforce it. As it is the case in the American’s Spano v. New York, it was held that liberty and life in the end can be much endangered especially from those methods that are illegal and that are used in the conviction of those termed as the criminals from the real criminals themselves. The Supreme Court in Canada is in the acknowledgement of the reasons that underlie the rule of confessions.

            The conduct of the authorities should be vigorously repressed as part of it shocks the community, there is also a clear indication that as the oppression doctrines and inducements are concerned primarily with reliability, the rule of confession also goes an extra mile in the protection of a broader voluntariness concept that it is typically focused on protecting the rights of the accused person and ensure almost fairness in the criminal process. The whole idea for this requirement as it is in the Supreme Court of Canada is in ensuring control of the state conduct’s coerciveness. This holds the threshold of higher improper conduct in regard to the police than in the case of Miranda in the early American times where there was interrogations held in Court that were inherently very coercive. The early expectation of the court was that Miranda warnings would reduce so significantly the potential brutality and the rampant oppression always witnessed in the interrogation room. The courts should have it that primary concern in the regulation of the practices of interrogation that might have an effect on the reliability or even in the deterring of the police misconduct and so they should be able to examine the vulnerability that are seen from the police action related factors. 

d)     Protecting the Rights of Suspects to Make Autonomous Decisions

            People by nature are autonomous and free actors that have a natural instinct for their self preservation. When there is overborne on the individual’s instinct by the authority, the autonomy of that individual is violated. This is a situation where questioning by the police to an individual becomes overbearing in the omission and exclusion of some confessions and this is a test that is very subjective. It has been widely argued that any confession that is obtained through an interrogation at the time when an individual is in custody is truly not voluntary. If at the time of interrogation the defense counsel of the suspects were allowed to be present in those rooms of interrogation, then this would be the perfect solution to address the overborne will of an individual during interrogation. There is also need for a suspect to remain firm and be self-determined in order to be able to choose whether to reveal any incriminating information to self or state.

Investigations Conducted Abroad

            Several states and countries have different perspectives and confession laws. For instance, in the case of United States v. Bin Laden, there was suppression of the statements by a federal district court on the statements made internationally according to the investigation about the 1998 United States embassies bombing in Kenya and Tanzania. It had speculations that the suspects could have been given the warnings of Miranda. Basically, in this case, it was to establish whether the non-mirandized statements of nonresident defendants were admissible during the trial that was held in the Unites States. The speculated statements came from the interrogations that were conducted abroad by the law enforcement officials of the United States.

            The court made a conclusion that the amendment of the clause on the right against self-incrimination is applicable to the extent that the suspect who is an alien is in the United States on trial, again the agents on the law enforcement in America carrying out investigations overseas need to still use the known framework of the Miranda warnings, although the interrogation is done completely abroad but by the U.S. agents and also the physical custody is the foreign authority. A principled but very realistic, Judge Sands held an application of a familiar warning of Miranda that it is appropriate and necessary as stipulated under the 5th amendment.

            Miranda is very necessary as the police interrogation is inherently coercive that is clearly no less disturbing when it is done beyond the American borders under the control of a foreign station house. This posses a great threat in terms of compulsion as the United States have no total authority over the suspect. The court was also able to establish that the suspects would be predisposed unduly and talk to the authority of the United States with the intention of relocating to the U.S. where the protection could be much greater on the defendants. It was the responsibility of the American law enforcement agents to apply the Miranda warning for the safeguard and privilege against the act of self-incrimination.

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