# Law enforcement: Drugging during interrogation is prevented by what law(s)? **URL:** \ **Category:** Factual Questions\ **Created:** [March 25, 2014, 1:25am UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494 "2014-03-25T01:25:30Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 25, 2014, 7:17pm UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/21 "2014-03-25T19:17:13Z")
> [@Doctor\_Who](#): > > Seriously? Google 14th Amendment Voluntariness and start educating yourself. Hate to tell you this, but the Constitution regulates a lot of things that are not mentioned in the text. I’ll forego the usual example (abortion) and just ask you to point out where in the 5th Amendment I can find the Miranda warnings? All the 14th Amendment says on the subject is that the rights guaranteed in the Constitution apply to the states. There’s nothing in the 14th Amendment saying that there’s a right against involuntary confessions. That right is from the 5th Amendment. If there was no 5th Amendment to have as a source for this right then there would be no right for the 14th to apply to the states. ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [March 25, 2014, 7:23pm UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/22 "2014-03-25T19:23:57Z")
It’s been over ten years now, but I was taught that whenever I wrote about an incorporated right I should start with the 14th, usually with its Due Process clause. Maybe that’s what’s causing some of the confusion? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 25, 2014, 7:40pm UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/23 "2014-03-25T19:40:32Z")
> [@Rhythmdvl](#): > > It’s been over ten years now, but I was taught that whenever I wrote about an incorporated right I should start with the 14th, usually with its Due Process clause. Maybe that’s what’s causing some of the confusion? Maybe. Certainly Malloy v. Hogan is the case that incorporated the Fifth Amendment’s self-incrimination protection against the states via the Fourteenth Amendment. But the fact remains that the Fourteenth Amendment is the vehicle; the Fifth is the cargo. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [March 25, 2014, 7:51pm UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/24 "2014-03-25T19:51:57Z")
> [@Little\_Nemo](#): > > This wasn’t my experience. I often tried to arrange things so I could question an assault victim after he had been given some pain medication. I found they were a lot more likely to give up the identity of their assailant if they were feeling mellow. But that is voluntary like if I get drunk and confess a crime. The OP is about involuntary drugging. ---
**Author:** ![Doctor\_Who](https://avatars.discourse-cdn.com/v4/letter/d/ed8c4c/32.png) [@Doctor\_Who](https://boards.straightdope.com/u/Doctor_Who)\ **Post date:** [March 25, 2014, 8:55pm UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/25 "2014-03-25T20:55:19Z")
> [@Bricker](#): > > Maybe. Certainly Malloy v. Hogan is the case that incorporated the Fifth Amendment’s self-incrimination protection against the states via the Fourteenth Amendment. But the fact remains that the Fourteenth Amendment is the vehicle; the Fifth is the cargo. I appreciate you springing into action to represent Little Nemo. Do me a favor please counsellor… Let me know the constitutional amendment that supported the decision of the Court in Brown v Mississippi. Was it the cargo or the vehicle? I’m not (currently) talking about an incorporated 5A right. Although everybody wants me to. I’m talking about a 14A right. I have never disagreed with the fact that the 14A incorporates the 5A as against the states. And that, through that mechanism, we have a 5A right against self incrimination at a state level. I also agree there is an entirely different cross-section of law dealing with the 5A (yes as applied to the states by the 14A) in the specific area of interrogation while in police custody (Miranda et al). I’m talking about a confession made involuntarily in violation of due process. A due process that comes from the 14A. ---
**Author:** ![Doctor\_Who](https://avatars.discourse-cdn.com/v4/letter/d/ed8c4c/32.png) [@Doctor\_Who](https://boards.straightdope.com/u/Doctor_Who)\ **Post date:** [March 25, 2014, 9:04pm UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/26 "2014-03-25T21:04:50Z")
And as to your other point, I was told that the 14th doesn’t mention interviews or confessions… I was told this as if it was some great salient point that means anything whatsoever. Hence my Miranda example, which maybe you didn’t understand. So here goes… Miranda interprets the 5A. It says you must give several warnings before questioning in police custody. We all know them from TV… Right to be silent, the right to an attorney present during questioning, etc. As you know, if you do not advise those specific rights before questioning, any subsequent statement will be inadmissible. This all stems from the 5A privilege against self-incrimination. BUT THE 5TH NEVER MENTIONS THESE WARNINGS. These warnings are nowhere to be found in the body of the Constitution. So… my point is that the basic text of the Constitution is not always illustrative of what it means. Just because the text doesn’t say something doesn’t mean it’s not in there (as interpreted by the SCOTUS). ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [March 25, 2014, 9:08pm UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/27 "2014-03-25T21:08:14Z")
I was under the impression that the rights embodied in the 14th’s due process differed from those of the 5th. That, among other things, the due process guaranteed by the 14th meant applying the rights and processes due from the Bill of Rights–that the 5th’s right against self incrimination is partly how due process is defined, and the 14th meant you have that right. Consider whether the right against self incrimination preexisted the 14th (irrespective of whether it had been recognized by the courts of the time). Also consider whether the 14th would even be in question if the OP had been limited to the FBI or other Federal agency. Then again, I’m the guy who went to his law professor’s office a week into school and said “I’m having trouble understanding what due process is—do you have a few minutes to explain it to me?” :smack: ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 25, 2014, 10:02pm UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/28 "2014-03-25T22:02:41Z")
> [@Doctor\_Who](#): > > I appreciate you springing into action to represent Little Nemo. Do me a favor please counsellor… Let me know the constitutional amendment that supported the decision of the Court in Brown v Mississippi. Was it the cargo or the vehicle? > > I’m not (currently) talking about an incorporated 5A right. Although everybody wants me to. I’m talking about a 14A right. Yes, no doubt about it: Brown rested on the Fourteenth Amendment and held that a confession extracted by whipping the accused violated the due process clause of the Fourteenth Amendment. But Brown is not often offered up these days in motions to exclude confessions. Why is that? You said: > [@Doctor\_Who](#): > > The applicable law is the 14th Amendment. Under that, a confession must be voluntary in order to be admissible. Voluntariness is determined through a totality of the circumstances test. Do you believe that’s the best, most current rationale insofar as the thread’s hypothetical of extracting a confession via drugging – a 1930s era case that rests on the 14th Amendment? ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [March 26, 2014, 3:57am UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/29 "2014-03-26T03:57:58Z")
> [@Donnerwetter](#): > > What if the police officer just happens to be a compassionate human being and offers the suspect a drink to loosen up a little bit? > [@Saint\_Cad](#): > > But that is voluntary like if I get drunk and confess a crime. The OP is about involuntary drugging. The defense lawyer would promptly ask for this to be ruled inadmissible due to the officer “getting the defendant drunk” prior to questioning. And if the Judge did admit it, he would challenge it strongly in front of the jury, like asking them if they think everything they have heard from a drunk guy would hold up in court. A good defense lawyer should be able to make such a confession pretty suspect in court. ---
**Author:** ![Doctor\_Who](https://avatars.discourse-cdn.com/v4/letter/d/ed8c4c/32.png) [@Doctor\_Who](https://boards.straightdope.com/u/Doctor_Who)\ **Post date:** [March 26, 2014, 5:04am UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/30 "2014-03-26T05:04:25Z")
> [@Bricker](#): > > Yes, no doubt about it: Brown rested on the Fourteenth Amendment and held that a confession extracted by whipping the accused violated the due process clause of the Fourteenth Amendment. Thanks for that. > [@](#): > > But Brown is not often offered up these days in motions to exclude confessions. Why is that? I’ll get to that in a sec… > [@](#): > > Do you believe that’s the best, most current rationale insofar as the thread’s hypothetical of extracting a confession via drugging – a 1930s era case that rests on the 14th Amendment? Yes, absolutely. This is a voluntariness issue. Now I know the courts have mostly dealt with Miranda when it comes to confessions (and you astutely questioned why that’s so). Basically I think it comes down to the increased professionalism of both our law enforcement community and our prosecutors. A police officer nowadays would never use force to elicit a confession. He knows if he did he just killed the case. And a prosecutor who was handed a case where force was used to extract a confession would drop it faster than a hot potato. So… These voluntariness cases are not only not making it to the SCOTUS. They aren’t even making it to court. Doesn’t mean they’re not still the applicable law. It just means the borderline cases that ARE going up are Miranda cases. Let me throw a hypo at you: A suspect is validly arrested for a state-law charge of murder. In a police interrogation room, he is read his Miranda rights (as required by the 5A as applied to the states through the 14th A). He waives his rights voluntarily, knowingly, and intelligently. He then denies committing the murder. The questioning detective doses him up with truth serum. At no time during this doping process does the suspect invoke any of his rights. Once the serum kicks in and the altered state begins, the suspect cannot refuse to talk and he must tell the truth. During subsequent questioning, he confesses to the murder. Now I would absolutely argue to suppress this confession as involuntary, especially seeing as Miranda was complied with. What would you argue? ---
**Author:** ![dstarfire](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dstarfire/32/5762_2.png) [@dstarfire](https://boards.straightdope.com/u/dstarfire)\ **Post date:** [March 26, 2014, 5:05am UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/31 "2014-03-26T05:05:00Z")
If you’re going to write about police interrogation, you should understand the ‘fruit of a poisoned tree’ doctrine. You can look it up, but in short, if some bit of evidence is illegally obtained, anything discovered as a result of that (i.e. anything not proven to be obtained independently) is inadmissible in court. So, a minor slip in an interrogation could ruin the case against somebody. ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [March 26, 2014, 5:59am UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/32 "2014-03-26T05:59:27Z")
> [@Doctor\_Who](#): > > The questioning detective doses him up with truth serum. There are key details missing: was the suspect aware that the detective was dosing him with the truth serum? If the suspect was aware, did he give informed consent (i.e. was he fully aware of the effects of the serum)? I dare say that someone who knowingly and voluntarily takes a truth serum, with no hidden shenanigans, would not be able to make a 14th, 5th or even 4th (they illegally searched my brain!) claim. Also, see post #13 Somewhat related: Given that the police can permissibly lie in an interrogation, if they convince a suspect that what he had just ingested was a very powerful truth serum, could that give rise to an evidenciary challenge? What if they gave him a mildly intoxicating substance (say they knew he had just quit smoking so put a high concentration of nicotine in his drink) so that he felt physical–but no objectively discernable mental–effects? Lastly, there may be a pair of interrelated issues in play. First, there is the reliability of a serum-induced confession (exemplified by t-bonham’s drunken Chewbacca defense). Then there’s the more prevalent admissibility question–whether the confession or evidence obtained by it would ever make it to the fact finder. ---
**Author:** ![Doctor\_Who](https://avatars.discourse-cdn.com/v4/letter/d/ed8c4c/32.png) [@Doctor\_Who](https://boards.straightdope.com/u/Doctor_Who)\ **Post date:** [March 26, 2014, 6:24am UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/33 "2014-03-26T06:24:02Z")
> [@Rhythmdvl](#): > > There are key details missing: was the suspect aware that the detective was dosing him with the truth serum? If the suspect was aware, did he give informed consent (i.e. was he fully aware of the effects of the serum) Okay, I’ll flesh it out for you: Suspect: “What are you doing with that needle?” Detective: “Injecting you with a truth serum so you’ll stop lying.” Detective injects serum into Suspect’s arm. Detective: “So you did it, right?” Suspect: “Yes, it was me. With the candlestick. In the conservatory.” ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [March 26, 2014, 6:47am UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/34 "2014-03-26T06:47:56Z")
Don’t forget: > [@](#): > > If the suspect was aware, \*\*did he give informed consent \*\*(i.e. was he fully aware of the effects of the serum)? ---
**Author:** ![Doctor\_Who](https://avatars.discourse-cdn.com/v4/letter/d/ed8c4c/32.png) [@Doctor\_Who](https://boards.straightdope.com/u/Doctor_Who)\ **Post date:** [March 26, 2014, 6:53am UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/35 "2014-03-26T06:53:55Z")
Let’s start with no. Happened just like I described above. Suspect did not object but did not consent other than sitting there and allowing the needle to go in his arm. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 26, 2014, 7:04am UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/36 "2014-03-26T07:04:49Z")
> [@Doctor\_Who](#): > > I’m not (currently) talking about an incorporated 5A right. Although everybody wants me to. I’m talking about a 14A right. Okay then. As a hypothetical, say there’s no Fifth Amendment and therefore no rights that are created by the Fifth Amendment. Show me in the text of the Fourteenth Amendment where you find that “a confession must be voluntary in order to be admissible”. ---
**Author:** ![Doctor\_Who](https://avatars.discourse-cdn.com/v4/letter/d/ed8c4c/32.png) [@Doctor\_Who](https://boards.straightdope.com/u/Doctor_Who)\ **Post date:** [March 26, 2014, 7:27am UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/37 "2014-03-26T07:27:54Z")
> [@Little\_Nemo](#): > > Okay then. As a hypothetical, say there’s no Fifth Amendment and therefore no rights that are created by the Fifth Amendment. > > Show me in the text of the Fourteenth Amendment where you find that “a confession must be voluntary in order to be admissible”. It comes from the due process clause… You know what? Maybe I’ll let Bricker or someone else explain this to you in a way that won’t make you say “Huh?” If you read my whole post above about not finding the Miranda warnings in the text of the 5th Amendment, but rather in the cases that interpret the 5th amendment, and didn’t get the larger point, then I doubt I’ll be able to communicate it to you. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 26, 2014, 8:00am UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/38 "2014-03-26T08:00:08Z")
> [@Doctor\_Who](#): > > It comes from the due process clause… You know what? Maybe I’ll let Bricker or someone else explain this to you in a way that won’t make you say “Huh?” If you read my whole post above about not finding the Miranda warnings in the text of the 5th Amendment, but rather in the cases that interpret the 5th amendment, and didn’t get the larger point, then I doubt I’ll be able to communicate it to you. No, you’re the only one eliciting that reaction from me. The Fifth Amendment protects due process and actually talks about people being compelled to be a witness against themselves. The Miranda warnings are a pretty direct extrapolation of that explicit right. Even if you can’t see it. But the Fourteenth Amendment just says people are entitled to due process without in any way defining what due process consists of. I do agree with your doubts about your ability to communicate to me (or anyone else) the connection between the text of the Fourteenth Amendment and what you imagine it says. I could, for example, assert that the Third Amendment guarantees me the right to free cable television. And when people ask me for my reasoning on this, I could simply declare that the words “in a manner” clearly means this and loftily refuse to explain it any further. But I doubt I’d convince anyone. ---
**Author:** ![Doctor\_Who](https://avatars.discourse-cdn.com/v4/letter/d/ed8c4c/32.png) [@Doctor\_Who](https://boards.straightdope.com/u/Doctor_Who)\ **Post date:** [March 26, 2014, 9:23am UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/39 "2014-03-26T09:23:39Z")
Lol. Okay, I give up. I am clearly making all this stuff up about the 14th Amendment. No support for it whatsoever. I wish you would read Brown v. Mississippi or at least read its Wikipedia page. It might blow your mind. ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [March 26, 2014, 10:51am UTC](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494/40 "2014-03-26T10:51:02Z")
It strikes me that the root of contention is the subtle distinction between procedural and substantive due process. I believe that \*Brown \*found a significant procedural due process error, one prohibited by the 14th. [Consider](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=297&page=278): > [@](#): > > That complaint is not of the commission of mere error, but of a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void. First, the vicious beatings offend procedural due process because the confessions they elicit do not necessarily relate to the actual event or the interests of justice. In contrast, they subvert the trial process guaranteed by the 14th. Consider: > [@](#): > > Coercing the supposed state’s criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief iniquity, the crowning infamy of the Star Chamber, and the Inquisition, and other similar institutions. The Constitution recognized the evils that lay behind these practices and prohibited them in this country. … The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure, and wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective.’ (quoting Fisher v. State, 145 Miss. 116, 134, 110 So. 361, 365) and > [@](#): > > Nor may a state, through the action of its officers, contrive a conviction through the pretense of a trial which in truth is ‘but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured.’ Mooney v. Holohan, 294 U.S. 103, 112 , 55 S.Ct. 340, 342, 98 A.L.R. 406. And t e trial equally is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence. and finally > [@](#): > > The due process clause requires ‘that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.’ Hebert v. Louisiana, 272 U.S. 312, 316 , 47 S. Ct. 103, 104, 48 A.L.R. 1102. It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process. But taking the OP hypothetical as a given does not run afoul of _Brown’s_ analysis. A pinprick is not torture. A key premise of the OP is that it is a functional truth serum–that utterances made under its influence are indeed the truth. Further, there are many ways in which the right against self-incrimination can be waived (e.g. voluntarily taking the witness stand). Lastly, in the years since _Brown_ the law has evolved such that the presumed basis for your claim of inadmissibility would be much stronger were it were grounded in the 5th (by way of the 14th) than resting solely on the 14th. Consider [Malloy v. Hogan,](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=378&page=1) a 1964 case (there are probably much better cases out there, but this was the first one that sparked memory). It’s primarily known (er, to me that is) for its role in the Incorporation Doctrine. But note: > [@](#): > > Brown v. Mississippi, 297 U.S. 278 , was the first case in which the Court held that the Due Process Clause prohibited the States from using the accused’s coerced confessions against him. The Court in Brown felt impelled, in light of Twining, to say that its conclusion did not involve the privilege against self-incrimination. “Compulsion by torture to extort a confession is a different matter.” 297 U.S., at 285 . **But this distinction was soon abandoned** , and today the admissibility of a confession in a state criminal prosecution is tested … in Bram v. United States the Court that “\*n criminal trials … wherever a question arises whether a confession is incompetent because not voluntary, **the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person `shall be compelled in any criminal case to be a witness against himself.'** ” (emphasis added and internal citations removed for readability) [Previous page](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494.md?page=1) [Next page](https://boards.straightdope.com/t/law-enforcement-drugging-during-interrogation-is-prevented-by-what-law-s/684494.md?page=3)