All guides ยท Texas Peace Officer Prep
Confessions and custodial interrogation
Summary of the topic
Two layers govern a suspect's statement. The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself, and Miranda v. Arizona turns that guarantee into warnings that must come before custodial interrogation. Article 38.22 of the Code of Criminal Procedure then adds a stricter Texas structure. Nothing in either layer applies until a statement stems from custodial interrogation, so custody is the first question.
Custodial interrogation means questioning started by law enforcement officers after a person has been taken into custody or deprived of freedom of action in a significant way. Under Berkemer v. McCarty, warnings are required for a felony or a misdemeanor alike, and an ordinary traffic stop is not custody because it is temporary, public and brief. A waiver must be knowing, intelligent and voluntary, and the state must prove it. Under Edwards v. Arizona, once an accused in custody has asked to deal with the police only through counsel, interrogation must stop until counsel is available, unless the accused starts further communication.
For a written statement, article 38.22, section 2 requires the face of the statement to show that the accused first received the magistrate's warning under article 15.17 or a warning from the person taking the statement. The five warnings are the right to remain silent, that a statement may be used against the accused, the right to a lawyer present before and during questioning, the right to an appointed lawyer, and the right to end the interview at any time. The statement must also show a knowing, intelligent and voluntary waiver.
For an oral statement, section 3(a) requires an electronic recording. The warning and waiver must be on the recording, the device must be capable of an accurate recording, all voices must be identified, and the defense attorney must receive a copy of the recordings not later than the 20th day before the proceeding. Section 3(c) exempts a statement containing facts later found to be true that tend to establish guilt, such as the location of stolen property.
Section 5 lists statements the article does not preclude, including a statement that does not stem from custodial interrogation and a voluntary statement that bears on the accused's credibility as a witness. Sections 6 and 7 deal with voluntariness. The court makes an independent finding outside the jury's presence, and the jury is then told that unless it believes beyond a reasonable doubt that the statement was voluntary, it must not consider it.
Section 9 and article 2B.0202 require a complete electronic recording of a custodial interrogation in a place of detention for listed serious offenses, such as murder, capital murder, kidnapping and sexual assault, unless good cause makes recording infeasible. A statement from such an interrogation is inadmissible unless it was recorded as required or the state shows good cause.
Provisions this topic covers
- Tex. Code Crim. Proc. arts. 38.22 and 2B.0202
- United States Constitution, Amendment 5
Study this topic
Four topics can be studied in full for free. Open the free topics or get access to all 44 topics for $19 a month.