Second-Bite Role of the Jury in the Admissibility of Confessions in New York

• NCJ Number: 82805
• Journal: Brooklyn Law Review Volume: 48 Issue: 1 Dated: (Fall 1981) Pages: 1-42
• Author(s): N R Sobel
• Date Published: 1981
• Length: 42 pages
• Sale Source: National Institute of Justice/
• Language: English
• Country: United States of America

Annotation

The paper provides an introductory commentary on a series of charges to the jury on the admissibility of confessions, with emphasis on issues related to their voluntariness.

Abstract

Under New York law, even when a pretrial motion to suppress a confession has been denied by a motion judge, a defendant may later require the trial judge to submit to the jury the issue of the admissibility of the confession. This is the 'second-bite' rule. When submitting the issue to the jury, the trial judge must instruct the jury to disregard the statement unless the prosecution established that it was voluntarily made beyond a reasonable doubt. The trial judge is required to change on a specific issue of voluntariness only when either direct or cross-examination has adduced evidence sufficient to raise a factual dispute. The factual issue must be specific in that it must involve failure to give the Miranda warnings, failure to honor a request for counsel, or the defendant's representation by counsel in the same or another proceeding. Such an issue of fact may be raised by the testimony of the defendant of another defense witness or by cross-examination of a prosecution witness. The New York law defining when a statement is involuntarily made encompasses some two dozen potential factual issues which the trial judge may be required to submit to the jury. Among these are whether the defendant was in custody when interrogated, whether the warnings given to the defendant were adequate, and whether the defendant's statement was spontaneously volunteered. Judicial decisions relating to each of these factual issues are discussed. Footnotes are provided.