Interrogation and entrapment
Virtually every serious criminal case involves a seizure of a person, and most involve searches. In contrast, confessions resulting from interrogation—police questioning of suspects—are probably crucial in no more than 20 percent of criminal cases.1 Nonetheless, in a significant minority of investigations, confessions are very important, either because they help solve the confessor’s case or because they help clear other cases.
The principal constitutional provision governing interrogation is the Fifth Amendment, which states in pertinent part that “[n]o person shall be compelled in any criminal case to be a witness against himself.” That clause forms the basis for the Supreme Court’s famous decision in Miranda v. Arizona,2 requiring warnings about the right to silence and the right to counsel during interrogation of people who have been arrested. Interrogations are also regulated by the Sixth Amendment, which provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defense.” This language has been construed to provide a basis for legal assistance separate from the Fifth Amendment, but one that is triggered only after formal criminal proceedings have begun, which is usually not until a day or two after arrest. Finally, the Due Process Clause in the Fifth and Fourteenth amendments also places some limitations on interrogation, in particular when it is directed at someone who is not in custody or subject to criminal prosecution.
By far the dominant source of law regulating interrogation,...
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.