The ability (or inability) to memorize the content of the form is
immaterial. This way, the government's case is made a lot simpler and a lot
cleaner. The prosecutor will thank you and, when you are done testifying, you
will thank yourself.
7. Sometimes, of course, the suspect will refuse to sign the DA Form 3881, or
anything else indicating that he has been advised of his rights and has waived
them. He may be perfectly willing to talk to the police, but will not sign the
form. In Connecticut v. Barrett, 479 US 523 93LEd2d920 107SCt828 (1987), the
suspect was advised of his rights prior to being questioned about a sexual
assault. He said he understood his rights and was willing to talk about the
incident, but said that he would not give a written statement unless his
attorney was present. He was again advised of his rights and repeated that he
was willing to talk to the police about the incident verbally, but did not want
to put anything in writing until his attorney came.
The police, therefore,
proceeded to take an oral statement.
8. The Supreme Court held that the suspect "made clear to the police his
willingness to talk about the crime for which he was a suspect." The suspect
had said that he wanted an attorney before a "written statement." The police
did not, however, attempt to subsequently obtain a written statement from him.
Indeed, they could not properly have done so. His limited request for counsel
was accompanied "by affirmative announcements of his willingness to speak with
His request for an attorney prior to making a written
statement had been honored by the police.
His decision may have been
illogical, but that was not the point. The confession was admissible, and the
conviction was upheld.
PART K - INTERROGATION OF CIVILIAN SUSPECTS
If a civilian is suspected of an offense, agents and investigators should
be familiar with Title 18 U.S.C. section 3501 which deals with admissibility
of confessions in any criminal prosecution in federal court. A confession is
defined as "... any confession of guilt of any criminal offense or any self-
incriminating statement made or given orally or in writing." 18 U.S.C. section
3501(e). The federal judge must determine if this confession was voluntarily
given before it can be considered by the jury.
In a hearing out of the
presence of the jury, the judge will make this determination based upon the
totality of the circumstances surrounding the taking of the confession
including the following factors set out at 18 U.S.C. section 3501(b):
a. the time elapsing between arrest and arraignment of the defendant
making the confession, if it was made after arrest and before arraignment,
b. whether such defendant knew the nature of the offense with which he was
charged or of which he was suspected at the time of making the confession,
c. whether or not such defendant was advised or knew he was not required
to make any statement and that any such statement could be used against him,