CJI2d[NY] Confession

NOTE: When properly raised at trial, the voluntariness of a defendant’s statement to law enforcement must be submitted to the jury upon the defendant’s request. ¹The question of whether a defendant’s statement was voluntary will turn on such factors as whether the defendant was in custody, if so, whether he/she was given and waived his/her Miranda rights ², and whether the statement was voluntary in the traditional Fifth Amendment sense. The question of whether the defendant’s expanded right to counsel under the New York State Constitution was violated need not be submitted.³ ³

No one jury instruction can apply to all situations given the varied circumstances surrounding the giving of statements, and the different instructions requested. What follows is a series of instructions on the most common issues from which the trial court can fashion a charge tailored to the facts and issues of an individual case.

Table of Contents

Introduction 2

Pedigree Statements 3

Custodial Statements 4

Miranda Rights 5

Traditional Involuntariness 7

Expanded Charge on Traditional Involuntariness 8

Failure to Record Statement 9

Promise by the Police 10

Successive Statements 11

Delay in Arraignment 14

Conclusion 15

ADDITIONAL CHARGES 16

I. Custodial but Spontaneous Statement 16

II. Issue as To Custody of Defendant 17

Introduction

I will now discuss the law as it relates to testimony concerning [a] statement(s) of the defendant made to a police officer [or assistant district attorney].

Our law does not require that a statement by a defendant be oral or written. It also does not require that questions and answers be electronically recorded [unless, as I shall explain, the statement was the product of custodial interrogation].

[A statement in written form need not have been (written or) signed by the defendant provided that the defendant adopted the statement. A defendant adopts a statement when he/she knowingly acknowledges the contents of the statement as his/her own. In deciding whether the statement was adopted, the presence or absence of the defendant’s signature may be considered.]

Pedigree Statements ⁴

There is testimony that, while the defendant was in custody, the police asked him/her ?pedigree” questions relating to: (specify, e.g., his/her name, address, date of birth, type and place of employment).

Under our law, a police officer may ask those questions of a person who is in custody, and the officer is not required to advise the defendant of his/her rights before doing so. Thus, if you find the defendant made such statements, you may consider them in your evaluation of the evidence. In determining whether the statement was made, you can apply the tests of truthfulness and accuracy that we have already discussed.

Custodial Statements

There is testimony that, while the defendant was in custody, he/she was questioned by the police and made certain [oral and/or written] statement(s). [There is (also) testimony that the defendant made a videotaped statement to an assistant district attorney.]

Under our law, before you may consider any such statement as evidence in the case, you must first be convinced that the statement attributed to the defendant was in fact made [or adopted] by him/her. In determining whether the defendant made [or adopted] the statement, you may apply the tests of believability and accuracy that we have already discussed.

Also, under our law, even if you find that the defendant made a statement, you still may not consider it as evidence in the case unless the People have proven beyond a reasonable doubt that the defendant made the statement voluntarily.⁵

How do you determine whether the People have proven beyond a reasonable doubt that the defendant made a statement voluntarily?

Miranda Rights ⁶

Initially, under our law, before a person in custody may be questioned by the police [or an assistant district attorney], that person first, must be advised of his/her rights; second, must understand those rights; and third, must voluntarily waive those rights and agree to speak to the police [or an assistant district attorney]. If any one of those three conditions is not met, a statement made in response to questioning is not voluntary and, therefore, you must not consider it.

[There is no particular point in time that the police [or assistant district attorney] are required to advise a defendant in custody of his/her rights, so long as they do so before questioning begins. A defendant in custody need be advised only once of the rights, regardless of how many times, or to whom, the defendant speaks after having been so advised; (provided the defendant is in continuous custody from the time he/she was advised of his/her rights to the time he/she was questioned and there was no reason to believe that the defendant had forgotten or no longer understood his/her rights. ⁷)]

While there are no particular words that the police [or assistant district attorney] are required to use in advising a defendant, in sum and substance, the defendant must be advised:

1. That he/she has the right to remain silent;

2. That anything he/she says may be used against him/ her in a court of law;

3. That he/she has the right to consult with a lawyer before answering any questions; and the right to the presence of a lawyer during any questioning; and

4. That if he/she cannot afford a lawyer, one will be

provided for him/her prior to any questioning if he/she so desires.

Before you may consider as evidence a statement made by the defendant in response to questioning, you must find beyond a reasonable doubt that the defendant was advised of his/her rights, understood those rights, and voluntarily waived those rights and agreed to speak to the police [or an assistant district attorney]. If you do not make those findings, then you must disregard the statement and not consider it.

[NOTE: Add if the defendant's mental capacity to understand the warnings is in issue:

A person may validly waive [his/her] rights, regardless of whether or not [he/she] had a full understanding of the criminal law or procedures or, in particular, how what [he/she] says on waiving [his/her] rights may be used later in the criminal process.

What must be shown for a valid waiver is that the individual grasped the plain meaning of the warnings that [he/she] did not have to speak to the interrogator; that any statement might be used to [his/her] disadvantage; and that an attorney's assistance would be provided upon request, at any time, and before questioning is continued. ⁸]

Traditional Involuntariness ⁹

Under our law, a statement is not voluntary if it is obtained from the defendant by the use or threatened use of physical force [upon the defendant or another person].

In addition, a statement is not voluntary if it is obtained by means of any other improper conduct or undue pressure which impairs the defendant’s physical or mental condition to the extent of undermining his/her ability to make a choice of whether or not to make a statement. ¹⁰

Expanded Charge on Traditional Involuntariness

In addition to the foregoing charge on “Traditional Involuntariness,” the following expanded charge may be appropriate:

In considering whether a statement was obtained by means of any improper conduct or undue pressure which impaired the defendant’s physical or mental condition to the extent of undermining his/her ability to make a choice of whether or not to make a statement, you may consider such factors as:

The defendant’s age, intelligence, and physical and mental condition; and

The conduct of the police during their contact with the defendant, including, for example, the number of officers who questioned the defendant, the manner in which the defendant was questioned, what the police promised or said to the defendant ¹¹, the defendant’s treatment during the period of detention and questioning, and the length of time the defendant was questioned.

It is for you to evaluate and weigh the various factors to determine whether in the end a statement was obtained by means of any improper conduct or undue pressure which impaired the defendant’s physical or mental condition to the extent of undermining his/her ability to make a choice of whether or not to make a statement.

Failure to Record Statement

(Added June 2017 for a law effective April 1, 2018)

Note: Effective, April 1, 2018, CPL 60.45 requires the recording of a custodial interrogation taken by a “public servant” [Penal Law § 10.00(15)] in a “detention facility” when “the interrogation involves a class A-l felony, except one defined in article [220] of the Penal Law; felony offenses defined in section 130.95 and 130.96 of the Penal Law; or a felony offense defined in article [125] or [130] of such law that is defined as a class B violent felony offense in section 70.02 of the Penal Law.” A "detention facility" is defined to mean “a police station, correctional facility, holding facility for prisoners, prosecutor's office or other facility where persons are held in detention in connection with criminal charges that have been or may be filed against them.” If there is an issue as to whether the defendant was in custody and subject to custodial interrogation, see the “additional charges” section below: “

I. Custodial but Spontaneous Statement

II. Was Defendant in Police Custody?

Under our law, where a person is subject to custodial interrogation by a (specify e.g. detective) at a (specify “detention facility,” e.g. police station) the entire custodial interrogation, including the giving of any required advice of the rights of the individual being questioned, and the waiver of any rights by the individual, shall be recorded by an appropriate video recording device.

As you are aware the People did not do so. The People's failure to record the statements may be weighed by you as a factor, but not as the sole factor, in determining

Select either or both of the following alternatives:

whether such statements were made,

[and if so,] whether they were made voluntarily.

Promise by the Police¹²

A statement of the defendant may be involuntary for the reasons I have just explained to you, and it may also, or in the alternative, be deemed to have been made involuntarily if the statement was obtained from the defendant by a public servant engaged in law enforcement activity [or by a person then acting under his/her direction or in cooperation with him] by means of any promise or statement of fact, which promise or statement created a substantial risk that the defendant might falsely incriminate himself/herself.

Successive Statements

No Miranda Warnings Before Initial Statement

(Updated Sept 2026)

CAVEAT

Note to the Court: In the trial of Pedro Hernandez for the murder of Etan Patz, the jury, during deliberations, “requested the trial judge to ‘explain’ whether, ‘if’ the jury found that the pre-Miranda confession at [a prosecutor’s office] was involuntary, it ‘must disregard’ Hernandez's [subsequent] post-Miranda confessions." Hernandez v McIntosh, 146 F.4th 142, 158 [2d Cir 2025]. The trial judge’s answer was “No.”

The Appellate Division, First Department, affirmed the judgment of conviction and held:

"Given the precise wording of the note, the court's brief response was correct. Even assuming, without deciding, that the court should have added instructions on the circumstances whereby a statement may or may not be attenuated from a prior statement found to be involuntary, there is no reasonable possibility that the verdict would have been different had those instructions been given . . ., in light of the strong evidence that defendant's confession to the Assistant District Attorney was fully attenuated from all of his confessions to the police, as well as being corroborated by defendant's various confessions to civilians." People v Hernandez, 181 AD3d 530, 533 [1st Dept 2020].

The Second Circuit Court of Appeals granted the defendant a writ of habeas corpus on the ground that the trial court’s answer failed to explain the law of successive statements and accordingly denied the defendant due process. Hernandez, 146 F.4th at 157.

The United States Supreme Court reversed the Second Circuit, holding that the Court had exceeded the scope of habeas corpus review authorized by the Antiterrorism and Effective Death Penalty Act of 1996 given that: "No clearly established federal law required the trial court to instruct the jury" beyond the instruction the trial court gave. McCarthy v Hernandez, 608 U.S. _, 146 S.Ct. 1873, 1876 and 1881 [2026].

In its opinion, the Supreme Court added that: “New York law does not require a trial court to instruct a jury on whether an initial involuntary confession taints later confessions and thus imposes an obligation to disregard them.” Hernandez, 146 S.Ct. at 1877, citing People v. Smith, 209 App.Div.2d 1005, 1006, 619 N.Y.S.2d 990, 991 (1994); People v. Rabady, 28 App.Div.3d 794, 795, 812 N.Y.S.2d 884, 884–885 (2006); People v. Martinez, 63 App.Div.3d 859, 860, 880 N.Y.S.2d 492, 493 (2009); People v. Medina, 146 App.Div.2d 344, 350–351, 541 N.Y.S.2d 355, 358–359 (1989).

Smith (at 1005-1006) affirmed the trial court’s ruling denying suppression of a defendant’s statement, finding that there was no Miranda violation in the initial or subsequent statement and summarily held that the trial court “did not err” in denying defendant's request to instruct the jury on attenuation.

Rabady (at 795) held that the trial court “did not err in refusing to instruct the jury on attenuation. . . .Additionally, . . . the charge as a whole adequately conveyed the legal standards the jury was to apply in its evaluation of the defendant's statements.”

Martinez (at 860) summarily held that “the court did not err in rejecting his proffered jury instruction on the issue of attenuation, and the court's charge adequately conveyed to the jury the appropriate legal standard to be applied in evaluating the voluntariness of the defendant's statements.”

Medina held that the trial court was correct in not submitting a right to counsel issue to the jury as it was a question of law, not fact. See People v Woods, 290 AD2d 346 [1st Dept 2002].

Compare People v Isaac, 64 AD2d 718 [2d Dept 1978] where the defendant’s “earlier” confession had been obtained “without Miranda warnings first being given,” the Appellate Division held that the trial court erred in refusing defense counsel’s request that it instruct the jury that, “in determining the voluntariness of the defendant's confession to a police detective after receiving the Miranda warning, the jury must consider whether a prior confession to another police officer who had not given the defendant any Miranda warnings, had affected the voluntary nature of the later confession.”

The New York Court of Appeals has held that the submission to the jury for its consideration of the voluntariness of a confession includes the submission to the jury of whether the defendant received proper Miranda warnings. People v Graham, 55 NY2d 144, 146 [1982].

And the New York Court of Appeals has held that a suppression court must, when placed in issue, consider whether a defendant’s post-Miranda statement(s) made to a police officer should be suppressed because the defendant had previously made a statement not preceded by a proper Miranda warning. See People v Bethea, 67 NY2d 364 [1986]; People v Paulman, 5 NY3d 122 [2005]; cf. People v White, 10 NY3d 286 [2008]; and the cases summarized in the endnote.

The Court of Appeals has not passed on whether that successive statements’ issue, if placed in issue, must also be submitted to the jury on the consideration of the voluntariness of a defendant’s successive statement. Without a Court of Appeals ruling, a trial court will be bound by an Appellate Division decision that applies directly to the case on trial.

Thus, while a trial court may decide that the following instruction is not required to be given to a jury, its content (and endnotes) may at least provide a suppression court with guidance in deciding a motion to suppress where a successive statement is in issue.

Introduction to Instruction

If, after considering the CAVEAT, the trial court decides to provide the following instruction, note that the circumstances surrounding the omission of, or the giving of inadequate, Miranda warnings before questioning and obtaining a statement from a defendant followed by a subsequent statement preceded by proper Miranda warnings are sufficiently varied to require the trial court to adapt the following instruction to fit the circumstances of the particular case — particularly with respect to the factors the jury must examine in determining whether they may consider the subsequent statement.

Examples of those circumstances are: [1] the multiple statements are introduced by the People and the defendant places in issue whether the initial statement was preceded by proper Miranda warnings; [2] the People were precluded from introducing the initial statement because of a failure to advise the defendant of the Miranda warnings but the defendant chooses to place the initial interrogation in issue in order to argue that the successive statement(s) was not voluntary and the jury must accordingly not consider the subsequent statement(s).

This instruction assumes the court has previously instructed the jury on the requirement of, and what constitutes the Miranda warnings.

Further, the successive statement may be involuntary in the traditional sense even given the Miranda warnings. Thus, if placed in issue by the defendant, an instruction on traditional voluntariness will also be required and the references to voluntariness in brackets in this instruction should be included.

Instruction

Members of the jury, you have heard testimony that on (specify the number of) occasions, the defendant [purportedly] made statements related to the crime(s) charged.

If you find that the [purported] initial statement of (specify the date/time) [was made and] that the defendant was in custody at that time and the person questioning the defendant failed to

Select as appropriate:

Inform the defendant of the warnings required before questioning the defendant,

properly inform the defendant of the warnings required before questioning the defendant,

then you must consider whether that failure rendered the warnings given before the successive statement on (specify the date/time) ineffective; that is, would a reasonable person in the suspect’s shoes have understood that the warnings before the successive statement conveyed the message that the suspect retained a choice about continuing to talk¹³; [and whether the successive statement was otherwise voluntary¹⁴].

If you find that the warnings given before the successive statement (specify the dates/times) were not effective to convey that message, then in determining your verdict, you must not consider the statements of (specify the dates/times).

That the warnings were given before the successive statement [of (specify the date/time)] and that the defendant proceeded to answer questions does not alone suffice to warrant a finding that the warnings were effective.

You must in addition consider whether the multiple interrogations were in reality, a single continuous chain of events¹⁵; or instead, whether there was a pronounced break in the time and sequence of the interrogations such that at the time of the successive interrogation and statement [on (specify the date/time)], the defendant was no longer under the sway of the prior questioning [on (specify the date/time)], and the warnings before the successive statement [on (specify date/time)] were accordingly effective.¹⁶

The extent and effectiveness of a pronounced break, if any, may vary depending upon the circumstances. In making that determination, you may consider, for example:

Whether there was a significant passage of time between the initial statement [of (specify the date/time)] and the successive interrogation(s) and statement(s) [of (specify the date(s)/time(s))].

Whether the successive interrogation(s) and statement(s) took place at a different location than the initial interrogation and statement.

Whether the successive interrogation(s) and statement(s) were conducted by different [officers / specify)] from those who conducted the initial interrogation and statement.

Whether at all times the defendant appeared willing to speak to the police.

Whether the initial statement was inculpatory.

Whether the defendant was told that the initial statement could not be used against the defendant.

Whether the manner and extent of the initial interrogation affected whether the subsequent warnings [on (specify the date/time)] conveyed the message that the suspect retained a choice about continuing to talk.

Whether during the period of time between the interrogations and statements the defendant was treated fairly.¹⁷

No one factor is determinative. The question is whether on the totality of the circumstances there was a sufficient break between the interrogations to ensure that the warnings which preceded the statement [of (specify the date/time)] were effective to convey the message that the defendant retained a choice about continuing to talk.¹⁸

Again, if you find that the successive statement [of (specify the date/time)] was involuntary because of the failure to properly advise the defendant of the warnings before the initial interrogation [of (specify the date/time)] [or is otherwise involuntary], you must not consider that successive statement [of (specify the date/time)] [or the initial statement [of (specify the date/time)] in reaching your verdict.

Delay in Arraignment ¹⁹

Under our law, when a person is arrested, the police must bring him or her to court for arraignment without unnecessary delay. Before bringing an arrested defendant to court, the police may perform [a lineup], fingerprinting and photographing and may complete the paperwork associated with the processing of the arrest, and may question the defendant.

It is not for the jury to determine precisely when the defendant should have been arraigned; however, you may consider whether the police unnecessarily delayed the defendant’s arraignment; and, if so, whether that delay, along with other relevant factors, affected the defendant’s ability to make a choice about whether to make a statement.

A statement is not involuntary solely because of the length of time before a defendant is arraigned. That length of time is only one of the factors that you may consider in determining whether a statement was voluntary.

Conclusion

If the People have not proven beyond a reasonable doubt that a statement of the defendant was voluntarily made, then you must disregard that statement and not consider it.

If the People have proven beyond a reasonable doubt that a statement of the defendant was voluntarily made, then you may consider that statement as evidence and evaluate it as you would any other evidence for truthfulness and accuracy.²⁰

ADDITIONAL CHARGES

I. Custodial but Spontaneous Statement

Under our law, before a person in custody may be questioned by the police [or an assistant district attorney], that person first, must be advised of his/her rights; second, must understand those rights; and third, must voluntarily waive those rights and agree to speak to the police [or an assistant district attorney].

If, however, a defendant in custody spontaneously volunteers a statement, that statement may be considered by the jury, regardless of whether or not the defendant was advised of his/her rights or waived them.

[In this case, the People concede that at the time of the statement, the defendant was in police custody (and had not been advised of his/her rights). The People, however, contend that the defendant spontaneously volunteered a statement.]

For a statement to be spontaneously volunteered, the spontaneity must be genuine and not the result of any questioning, inducement, provocation, or encouragement by the police.²¹

Under our law, questioning includes words or actions by the police [or assistant district attorneys], which they should know are reasonably likely to elicit an incriminating statement.

If you find that the People have proven beyond a reasonable doubt that the statement was spontaneously volunteered, you may then consider that statement as evidence and evaluate it as you would any other evidence for truthfulness and accuracy. ²²

If you find that the People have not proven beyond a reasonable doubt that the statement was spontaneously volunteered, then you must disregard the statement and not consider it.

II. Issue as To Custody of Defendant

Under our law, before a person in custody may be questioned by the police [or an assistant district attorney], that person first, must be advised of his/her rights; second, must understand those rights; and third, must voluntarily waive those rights and agree to speak to the police [or an assistant district attorney].

On the other hand, a defendant who is not in custody when questioned by the police [or assistant district attorney], need not be advised of his/her rights, and any voluntary statement may be considered by the jury.

Under our law, a person is in custody when he/she is physically deprived of his/her freedom of action in any significant way.²³

The fact that the defendant was being questioned by police [or that the questioning took place inside a police station] does not necessarily mean the defendant was in custody.

Whether the defendant was in custody at the time of the questioning is not determined by what the defendant himself/herself believed or what the police believed.²⁴ In other words, the test is not whether the defendant believed he/she was in custody or the police believed he/she was in custody. The test is what a reasonable person, innocent of any crime, in the defendant’s position, would have believed. If that reasonable person would have believed that he/she was in custody, then the defendant was in custody. If that reasonable person would have believed that he/she was not in custody, then the defendant was not in custody.²⁵

To decide whether a reasonable person, innocent of any crime, in the defendant’s position, would have believed that he/she was in custody, you must examine all the surrounding circumstances, including but not limited to:

Select as appropriate: ²⁶ ²¹

the reason the defendant was speaking to the police or being questioned by the police;

where the questioning took place; [whether the defendant appeared at the police station voluntarily;]

how many police officers took part in the questioning;

whether the questioning was investigative or accusatory; whether the questioning took place in a coercive atmosphere; whether the defendant was handcuffed or physically restrained;

whether the police treated the defendant as if he/she were in custody;

whether the defendant was offered food or drink;

whether the defendant had been allowed to leave after the questioning.