12. Confessions and Right to Counsel

Question 1

when is a confession truly involuntary?

Answer 1

only if there is some official compulsion (torture, etc)

Question 2

if an involuntary confession is admitted, what test is applied on appeal?

Answer 2

harmless error test (conviction need not be overturned if there is other overwhelming evidence of guilt)

Question 3

when does a defendant’s 6th amendment rights attach?

Answer 3

upon indictment (charged)

Question 4

at what stages does a defendant NOT have a 6th amendment right to counsel?

Answer 4

blood sampling
taking handwriting/voice exemplars
precharge/investigation lineups
photo IDs
prelim hearings to determine PC to detain
brief recesses during defendant’s testimony at trial
discretionary appeals
parole and prob revocation hearings
post conviction proceedings

Question 5

may a defendant be questioned regarding unrelated and uncharged offenses without violating the 6th amendment?

Answer 5

yes (6th amendment right to counsel is offense specific)
**NOTE = defendant WILL have a 5th amendment right to counsel (Miranda)

Question 6

when may a defendant validly waive his 6th amendment right to counsel?

Answer 6

when such a waiver is knowing and voluntary

Question 7

what remedy is applied on appeal if 6th amendment right to counsel was violated at NON-trial proceedings?

Answer 7

reversal unless harmless error

Question 8

what remedy is applied on appeal if 6th amendment right to counsel was violated at TRIAL?

Answer 8

automatic reversal of conviction

Question 9

when may a statement obtained in violation of defendant’s 6th amendment right to counsel be used at trial

Answer 9

only when used to impeach the defendant’s contrary trial testimony (may NOT be used in state’s case in chief)

Question 10

what is the Miranda rule?

Answer 10

a person in custody must, prior to interrogation, be informed that:
1) person has right to remain silent
2) anything they say can be used against them in court
3) person has a right to attorney, and
4) if they can’t afford an attorney, one will be provided if they so desire

Question 11

do Miranda warnings need to be ver batim?

Answer 11

no, so long as the substance of the 4 warnings are conveyed

Question 12

what must a defendant know in order for Miranda warnings to be required?

Answer 12

that they are being interrogated by police
**NOTE = statements to informants/ppl defendant doesn’t know are cops do NOT require Miranda warnings

Question 13

when is a defendant in custody? (2 part test)

Answer 13

1) a reasonable person would not feel free to leave/terminate the interrogation
2) the environment presents the same inherently coercive pressures as a traditional station house questioning (the more similar to trad arrest – the more likely court will find custody)

Question 14

what is an “interrogation”?

Answer 14

any words or conduct by the police that they should know would likely ELICIT an incriminating response from the detainee

Question 15

are routine booking questions considered an interrogation?

Answer 15

no

Question 16

are Miranda warnings required before spontaneous statements made by detainee?

Answer 16

no

Question 17

what is the effect of a defendant’s silence in response to questioning?

Answer 17

has not waived right to remain silent BUT has not yet invoked that right! (so police can continue to question them)

Question 18

what must the govt prove in order to show waiver of 5th amendment right to remain silent?

Answer 18

that waiver was knowing and voluntary
**NOTE = proved by preponderance of the evidence and based on totality of the circumstances

Question 19

what must a defendant do to properly invoke their right to remain silent?

Answer 19

must communicate their wish to remain silent EXPLICITLY and UNAMBIGUOUSLY

Question 20

if defendant invokes right to remain silent, what must police do?

Answer 20

must scrupulously honor the request by immediately stopping questioning of detainee