July-August 2010

Upgrade on confessions law

John Stride

TDCAA Senior Appellate Attorney

You can’t have missed them. The Internet, TV, newspapers, case summaries, seminars, our colleagues, and appellate courts have all reported the changes to collecting and introducing confessions. If the law were sold like software, I suppose we would call the changes “upgrades.”

    Between them, the Supreme Court of the United States and the Court of Criminal Appeals have addressed the language of the Fifth Amendment Miranda warnings, the severance of the Fifth Amendment right to counsel, the invocation/waiver of the right to silence, the Siebert “safety valve,” the attachment of the Sixth Amendment right to counsel, the waiver of Miranda warning sufficing for a waiver of the Sixth Amendment right to counsel, the content of jury instructions, and when deception and trickery during interrogation overreaches. In so doing, they have made the law more pragmatic and crafted more precise rules where only broad, ill-defined concepts once existed. Law enforcement officers and practitioners alike will benefit not only from the ready ability to apply the law but also from a decline in the availability and number of appellate challenges. This largely newfound clarity in the law will assist prosecutors in working with confessions. So let’s gather up what we have been hearing and seeing, connect the dots, and look at the big picture.

Miranda ­warnings

Since the Supreme Court handed down Miranda in 1966, numerous decisions have looked at the language of the prophylactic warnings. To what extent must law enforcement officers follow a precise script when giving the Miranda warnings? The Supreme Court recently revisited this issue and reminded us that the words used are not as critical as the message conveyed. This is not novel law, but it is a timely restatement of important law.

    In Powell, the Supreme Court reviewed whether the warnings that a suspect has “the right to talk to a lawyer before answering any of [law enforcement officer’s] questions” and that he can invoke this right “at any time … during the interview” satisfied Miranda’s requirement that a suspect be advised of his right to counsel before and during the questioning.1 In a 7-2 decision the court held that although not manifestly clear, the two sentences sufficed. While the four warnings of Miranda are “invariable” and the FBI warnings “exemplary” and “admirably informative,” the court has never specified the particular words that must be used. The inquiry is simply whether the warnings reasonably convey to a suspect his rights under Miranda.

    But it takes more than an officer simply reading the warnings to demonstrate that a suspect has effectively waived his rights. In Joseph, which lacked an express waiver, the Court of Criminal Appeals reviewed the totality of the circumstances to decide that a suspect had knowingly, intelligently, and voluntarily waived his rights.2 More significant, though, is Judge Cochran’s concurring opinion in which she reminded that the better practice is for law enforcement officers to ask a suspect both whether he understands his rights and whether he waives those rights. She observed that there had been an unfortunate increase in officers failing to ask the second question. The failure to ask the waiver question specifically made Joseph a very close case and generally clutters the courts with litigation and risks exclusion of statements.

    Together these cases inform that in Texas, law enforcement officers should adopt the warnings of art. 38.22 of the Code of Criminal Procedure and always inquire whether a suspect (1) understands his rights and (2) waives them. If statements must be obtained during custodial interrogation rather than in the free world, these requirements are not arduous or otherwise so detrimental that they would constitute an impediment to the process, but they surely will prevent the exclusion of many statements.

Re-approaching a suspect

We know that the Fifth Amendment right to counsel attaches when sufficiently invoked, but when does it expire? Previously, under Edwards, once a suspect invoked the right to counsel, police could not re-initiate contact without counsel present and the presumption was that, if they did so, any waiver of rights was involuntary.3 Absent a break in custody, this presumption was temporally indefinite—even eternal—and much litigation developed around what constituted an adequate break in custody. But 30-plus years later, this radical presumption has been significantly tempered.

    Michael Shatzer was already incarcerated for other crimes when a detective approached him about allegations that he had also sexually assaulted his son. Shatzer invoked his right to counsel, said nothing else, was released from the interview, and the investigation was closed. Three years later, another detective reopened the investigation and Shatzer waived his rights before inculpating himself. He then sought to exclude his statement on grounds that when the police reinitiated contact with him, they had violated his right to counsel under Edwards. The Supreme Court disagreed.4 Although under Edwards there is a presumption that after a suspect has invoked his rights, any subsequent waiver in response to police questioning is involuntary, the passage of a 14-day break in custody is sufficient to allow the person to “reacclimatize” to their “accustomed surroundings and daily routine” and “regain the degree of control they had over their lives before interrogation,” even if the person was incarcerated the entire time.

    As a result of Shatzer, there are now four levels of questioning: two custodial and two non-custodial. Naturally, greatest protection is afforded those in custody. Where a suspect has been arrested for a particular crime, has invoked his right to counsel, and is held in uninterrupted pretrial custody while the crime is actively investigated, the Edwards presumption survives. Any police re-initiation without the presence of counsel renders any statement involuntary.5 If, however, a suspect has been arrested, has invoked his right to counsel, and has been released from pre-trial custody so that he can return to his normal life—whether in the free world or as an inmate—police can re-attempt custodial interrogation after 14 days.6 In either situation, the suspect can choose to reinitiate questioning.7

    When a person is released from custody after invoking his right to counsel, police can question him thereafter so long as the questioning is conducted in a non-custodial setting and the person has had a reasonable time to contact an attorney.8 Finally, by avoiding any custody during the entire questioning process, the Fifth Amendment right to counsel is not implicated at all.9

    The bright-line rule of Shatzer is unusual for the Supreme Court, but the court felt compelled, “in a country that harbors a large number of repeat offenders,” to provide law enforcement officers guidance “with certainty and beforehand, when renewed interrogation is lawful.” This decision is a boon to officers and prosecutors seeking statements in custody.

Invoking and waiving the right to silence

In the past, the standard for invoking the right to silence has been amorphous in comparison to that for invoking the right to counsel; a suspect must unambiguously assert the latter. But nearly at the end of this term, a closely divided Supreme Court finally equated the measure required to invoke the two rights.

    In Thompkins, the suspect had been advised of his Miranda warnings but declined to sign a written waiver of his rights.10 Over the next three hours while in a straight-backed chair, the police questioned him.11 Although Thompkins remained silent for the greatest part of the interrogation, he briefly and infrequently responded to a few questions before making an admission almost at the end. On direct appeal, his conviction was affirmed but on a federal writ, the Sixth Circuit held that the state court was wrong to have found an implied waiver of the right to silence.

    In a 5-4 decision, the Supreme Court reversed the lower court. The majority held that the right to silence needs to be unambiguously asserted—just like the right to counsel. And Thompkins had never done that. In fact, by speaking he had evinced an implied waiver of his right to counsel. If he had wished to obtain the protection of the right to silence, he should have remained mute or affirmatively invoked it during questioning. Law enforcement officers are not required to end an interrogation if a suspect unambiguously or equivocally invokes his right to silence. Also, they need not seek clarification of whether the suspect wants to invoke his rights, but the record should reflect that the suspect understood his right to silence.12  Thus, if the prosecution can show that the right to silence was administered and the suspect understood it, the suspect’s uncoerced statement establishes an implied waiver of the right to remain silent.

    This case is not only important for the significant change in the law, but also for understanding how extremely close the relationship is between invoking the right to silence and waiving it. As the majority and dissenting opinions amply demonstrate, the ball—as in Woody Allen’s movie Match Point—could have landed on either side of the net in this one.

The Siebert “safety valve”

In Siebert, the Supreme Court put an end to the “question first, warn later” practice adopted by some officers to obtain confessions.13 This practice was designed by officers as an end-run around the perceived strictures of Miranda. But in crafting Siebert, the court carefully allowed for inadvertent situations where the police mistakenly questioned someone before warning them, i.e., where the officer did not deliberately plan to give warnings after asking questions.

    The Court of Criminal Appeals reached the Siebert exception in Carter.14 There, the officer arrested a driver and was transporting him when he simply asked the suspect if he knew he was under arrest and whether the product seized was cocaine or crack cocaine. The suspect acknowledged knowing he was under arrest, told the officer the substance was cocaine, and affirmed that it was cocaine. The colloquy lasted about 10 seconds before the officer stopped to give the warnings and secure a waiver. Relying on the trial court’s favorable findings, the court did not identify the deliberate gamesmanship so evident in Siebert and upheld the lower tribunal’s finding that the officer’s initial failure to warn was an “oversight” and went on to hold that the post-warning statements were voluntary.

    Carter is a necessary and useful exception to Siebert worth remembering, just like the forfeiture by wrongdoing exception to Crawford.15 Both narrow exceptions may permit introduction of statements otherwise excluded by the better known general rule.

Sixth Amendment right to counsel

The issue of just when the Sixth Amendment right to counsel attaches under Texas criminal procedure has been an issue eluding definition for decades. If the right is triggered before an indictment or information is issued, when does that occur? Specifically addressing Texas procedure, the Supreme Court identified a pre-indictment/pre-information trigger and, the same year, the Court of Criminal Appeals also acknowledged it.

    The Supreme Court had long instructed that the Sixth Amendment right to counsel attached at the initiation of “adversary judicial proceedings—whether by formal charge, preliminary hearing, indictment, information, or arraign-ment.”16 Of course, the court was attempting to answer the question of the triggering event for the various procedures in all jurisdictions. In Texas, while we all understood what was meant by formally charging a person by indictment or information, it was less clear what a intended by the terms “preliminary hearing” and “arraignment” and to what extent the right to counsel could be triggered before an indictment or information issued. Another 30-odd years, thousands of criminal cases, and not a few changes in the court’s membership later, we have an answer.

    In Rothgery, the Supreme Court instructed that in our state, the right to counsel attaches when magistration occurs under art. 15.17 of the Code of Criminal Procedure, i.e., when a person is taken before a magistrate, learns of the charge against him, and his liberty is restricted.17 This represents the point in time when a person transforms from a Fifth Amendment “suspect” to a Sixth Amendment “accused”18 and he “is faced with the prosecutorial forces of an organized society and immersed in the intricacies of substantive and procedural criminal law that define his capacity and control his actual ability to defend himself against a formal accusation that he is a criminal.”19 Moreover, because bringing a person before a magistrate signals a sufficient commitment to prosecute, a prosecutor’s involvement in the proceedings is immaterial.20

    While, under Rothgery, counsel must be appointed within a reasonable time, courts in future cases will have to divine what time that is. Of course, upon the request of an indigent defendant, state law requires counsel be appointed either within 48 hours if a county has a population under 250,000 or 24 hours.21 Given the statutory mandate, it seems possible that failure to comply with these rules might be considered unreasonable in Texas—not least because the states are free to provide greater protection than the constitution requires, and our legislature has already addressed the issue.

    The Court of Criminal Appeals followed Rothgery in Pecina.22 Even if we don’t necessarily like or agree with this expansion of the law, it does afford a greater degree of certainty than before. One more unanswered question has been eliminated and a significant amount of litigation pre-empted.

Questioning after the Sixth Amendment right to counsel is triggered

For more than two decades, the law has been that once an accused is protected by the Sixth Amendment right to counsel, police could not question an accused who has counsel or has requested counsel.23 In Jackson, the Supreme Court adopted a presumption that any subsequent waiver of the right to counsel was involuntary, but this often insurmountable barrier has been toppled.  

    In Montejo, the Supreme Court realized Jackson’s harsh rule prevented police from obtaining reliable confessions where the accused had never personally elected to exercise the right to counsel.24 As a result, the court decided that if an accused waives his rights under Miranda, the waiver permits law enforcement to question him under the Sixth Amendment. This retreat from overprotective prophylaxis is a considerable relaxation of the law and should allow the admission of more voluntary confessions. The Court of Criminal Appeals followed Montejo in Hughen.25

Deception versus fabrication

Law enforcement officers frequently employ deception and trickery during interrogation. The law recognizes that not all suspects are enthusiastic to share their misdeeds and need a little encouragement to have their catharsis, albeit momentary, and has been tolerant of various ploys. But when does deception go too far? As a matter of state law, the Court of Criminal Appeals has drawn a line between acceptable and unacceptable interrogation techniques.

    In Wilson, an officer altered an existing forensic laboratory report so that it purported to state that the suspect’s fingerprints were found on a weapon’s magazine, which they were not.26 Because of this information, the suspect confessed. At the suppression hearing, the officer was candid about the fabrication and the trial court—informed by federal constitutional law—denied the defense motion. But both appellate courts ruled the use of false documents violated art. 38.23 of the Code of Criminal Procedure. Essentially, the Court of Criminal Appeals recognized the broader application of the state exclusionary rule over its federal counterpart and held that, under Texas Penal Code §37.09, “[n]either police nor private citizens have a license to fabricate documents or other evidence and then use them to affect a criminal investigation or other official proceeding.” The specter motivating the result was that fabricated evidence has an “enduring life of its own,” could be mistaken for the genuine article, then find its way into the courtroom. Thus, although a confession may be “voluntary” under federal constitutional standards, admission is barred under art. 38.23. In so ruling, the court supported its position with Fred Inbau’s leading manual on criminal interrogations. As interrogator-friendly as Inbau is, he has warned against employing “false, incriminating documents” to obtain confessions.24

    Wilson will require Texas law enforcement officers to reconsider the tactics they use to obtain a confession. Verbal trickery—even outright lies—concerning the existence of evidence is sanctioned by both federal law and Inbau. But traditionally, Texas has been suspicious of a confession used as evidence in a criminal trial. Wilson confirms this, so fabricated documents are out. Given the different mediums of writing and speech—the one memorializing, the other vaporizing—it seems something of a reach, but even verbal deception that engages the same concerns as false documentation could also render a confession inadmissible under Texas law.25 Officers should remember that the state law on confessions is not as tolerant as the federal law. Federal law is the floor (not the ceiling) of protection afforded those suspected or accused of crimes. (Read more on the Wilson case in “As the Judges Saw It” on page 29.)

Jury instructions

Over the last decade, jury instructions have increasingly attracted the discretionary attention of the Court of Criminal Appeals, which has twice in as many years addressed jury instructions on confessions. When must they be given and how? The court has provided some instruction in Oursbourn and Vasquez.26 But fair warning: As many of you have probably discovered already, it is not always a simple task to grasp and apply the law, at least not without a summary or chart handy. Thus, it is best to anticipate instructions before trial begins rather than rushing to find the right language in the heat of things. Distilled, these two cases establish a three-step program for submitting instructions.


Identify the theory of involuntariness. First, in deciding what instruction might be required, we must identify which theory of law has been triggered: (1) general voluntariness under art. 38.22, §6; (2) the warnings and waiver language, i.e., Miranda as expanded by art. 38.22, §§2 and 3 or possibly art. 15.17; or (3) the due process clause. While an art. 38.22, §6, claim can be based on any circumstances including the defendant’s state of mind, due process and Miranda claims require police misconduct and involve an objective assessment of police behavior. Also, although custody is required for a §7 warnings instruction, it is not required for §6 and art. 38.23 instructions.


Ask if evidence raises the issue or if there’s a factual dispute. If voluntariness is raised, a §6 instruction must be submitted; no request or objection is needed because the instruction is law applicable to the case. For an instruction under §7 (addressing warnings and waiver), there must be custodial interrogation and a factual dispute. For an instruction under art. 38.23, the evidence must raise an issue of fact, the evidence must be affirmatively contested, and the contested evidence must be material to the lawfulness of the police conduct in obtaining the statement. If these criteria for art. 38.23 are met, again, an instruction is applicable to the case.


Submit the appropriate instruction. The three types are: (1) a general voluntariness instruction under §6, e.g., “Do you believe beyond a reasonable doubt that the defendant’s statement was voluntarily made?”; (2) a general instruction under §7 setting out the requirements of §§2 and 3 and inquiring whether the requirements have been met; and (3) a specific exclusionary instruction under 38.23(a) asking a fact-based question, e.g., “Do you believe that Officer Obie held a gun to the defendant’s head to extract his statement? If so, do not consider the confession.” Statutory claims require only a general instruction, but due process and Miranda claims may warrant both general and specific instructions.

    To date, Oursbourn is the most useful direction the Court of Criminal Appeals has given on jury instructions in confession issues. If this summary doesn’t do it for you, Oursbourn is a must-read to thoroughly familiarize yourself with the law before trial on a confession case. Jury instructions on confessions are a trap for the unwary and ill-prepared.

    Thus, we have the courts’ recent contributions to confession law. These changes signal a relaxation of federal confession law but a tightening of state confession law. These upgrades and more are incorporated in the third edition of TDCAA’s Confessions manual to be published in July. Purchase a copy of this new edition by going online at www .tdcaa.com or e-mailing books@ tdcaa.com.

1 Florida v. Powell, 175 L.Ed.2d 1009 (2010). In the interest of avoiding a list of endnotes longer than the article itself, citations are kept to the raw minimum.
2 Joseph v. State, No. PD-1111-08, 2010 Tex. Crim. App. LEXIS 15 (Tex. Crim. App. del. Feb. 24, 2010).
3 Edwards v.  Arizona, 451 U.S. 477 (1988).
4 Maryland v. Shatzer, 175 L.Ed.2d 1045 (2010).
5 See Shatzer; Minnick v. Mississippi, 498 U.S. 146 (1990); Arizona v. Roberson, 486 U.S. 675 (1988); Edwards.
6 See Shatzer.
7 See Cross v. State, 144 S.W.3d 521 (Tex. Crim. App. 2004).
8 See People v. Storm, 52 P.3d 52 (Cal. 2002). Be aware, however, that no Texas appellate court has yet followed Storm but, also, no state law appears to bar its adoption.
9 See McNeil v. Wisconsin, 501 U.S. 171 (1991); Miranda v. Arizona, 384 U.S. 436 (1966).
10  Berghuis v. Thompkins, No. 08-1470, ___ U.S. ___ (del. June 1, 2010).
11  The chair design was given importance by Justice Kennedy.
12  Confusingly, Justice Kennedy repeatedly uses the term “accused” for a person who has not yet been charged. See endnote 18 below.
13 Missouri v. Siebert, 542 U.S. 600 (2004).
14 Carter v. State, No. PD-0606-09, 2010 Tex. Crim. App. LEXIS 101 (Tex. Crim. App. del. March 24, 2010).  
15 Giles v. California, 128 S.Ct. 2678 (2008); Crawford v. Washington, 541 U.S. 36 (2004); Gonzalez v. State, 195 S.W.2d 114 (Tex. Crim. App. 2006).
16 See Kirby v. Illinois, 406 U.S. 682 (1972).
17 Rothgery v. Gillespie County, 128 S.Ct. 2578 (2008).
18 Former Presiding Judge McCormick adopted this useful distinction for purposes of Fifth and Sixth Amendment analyses. See Holloway v. State, 780 S.W.2d 787 (Tex. Crim. App. 1989). Another distinction you may find helpful to employ is using the term “interrogation” only when a suspect or accused is questioned in custody. Outside of custody, a person is simply questioned.
19 See Rothgery.
20 Id.
21 See Tex. Code Crim. Proc. art. 1.051(c).
22 Pecina v. State, 268 S.W.3d 564 (Tex. Crim. App. 2008).
23 Michigan v. Jackson, 475 U.S. 625 (1986).
24 Montejo v. Louisiana, 129 S.Ct. 2079 (2009).
25 Hughen v. State, 297 S.W.3d 330, 335 (Tex. Crim. App. 2009).
26 Wilson v. State, No. PD-0307-09, 2010 Tex. Crim. App. LEXIS 20 (Tex. Crim. App. del. March 3, 2010) (a 5-4 decision).
27 Fred E. Inbau et al., Criminal Interrogation and Confessions 217 (4th ed. 2001).
28 For instance, conduct that constitutes perjury, aggravated perjury, or a false report under Texas Penal Code §§37.02, 37.03, or even 37.08. See Tex. Code Crim. Proc. art. 38.22, §4.
29 Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008); Vasquez v. State, 225 S.W.3d 541 (Tex. Crim. App. 2007).