5th And 6th Amendment Flashcards
What is the FL equivalent of the 5th amendment?
Article 1, section 9
What is the FL equivalent of the 6th amendment
Article 1, section 16
Traylor v State holding
Primacy to state constitution—start there then go to US constitution
Does compelling phone password trigger the 5th amendment?
Split amongst DCAs—2nd DCA said non-testimonial; 4th said it is testimonial; 1st DCA said testimonial but forgone conclusion exception might apply
What makes something testimony for the 5th amendment?
Where government compels the person to use contents of his own mind to communicate a statement of fact
What is the foregone conclusion exception to the 5th amendment
If the government knows of the existence of the information already, the testimonial value is inconsequential and permissible
Dickerson v state and the 5th amendment
Miranda is constitutional and can’t be overruled by congress
NY v Quarles
Miranda rights not themselves protected by constitution—prophylactic—aid in making an informed decision
Florida rule on pre-arrest, pre-Miranda silence—State v Horowitz
Can’t use it as consciousness of guilt—violation of self incrimination
Impeaching with silence in Florida
No—Miller v State—can’t impeach with post Miranda silence like you can with statements
Do police need to readminster Miranda once taken into custody?
No—not if given prior—just need to be done prior to custodial interrogation (Day v State)
What are the Miranda warnings?
Right to remain silent
Statements can be used against you
Right to an attorney
Can’t afford one, will be appointed
How to know if warnings are close enough to count?
Considering suspect’s circumstances, do the warnings impart clear understanding of all rights? Context matters!
When do Miranda warnings have to be given again?
If defendant reinitiates after invoking right to remain silent
Do Miranda warnings have to be given again after invoking right to counsel if D reinitiates communications?
No—should be but not required
How to determine custody for Miranda—definition and standard
Deprived of freedom in a significant way
OBJECTIVE STANDARD: reasonable person would consider unable to leave
What factors to determine reasonable person for custody for Miranda
-Manner in which summoned for questioning
-Purpose, place, and manner of interrogation
-Extent to which confronted with evidence of guilt
-Whether informed free to leave
What is the main thing to look for in determining custody for Miranda?
Location!! BUT STILL TOTALITY OF CIRCUMSTANCES
Police station not automatic but more likely custodial (saying free to leave not necessarily dispositive)
At the scene, not usually in custody
In your house, likely not custody
Traffic stops and custody
Not usually custody—temporary detention
What is interrogation?
Express questioning or the functional equivalent of
What is the key factor for determining if it was interrogation?
Should the officer have known that it was reasonably likely to result in an incriminating response?
What is the standard for interrogation?
Objective standard: different from 6th amendment context!!
Reasonable man test from Traylor
Police should know reasonably likely to elicit incriminating response but focus on perception of the suspect rather than actual intention of police
(Talking to girlfriend or officer having dad ask questions)
Is it interrogation for officers to demand suspect identify self?
No—required detainees to provide identification
Does confronting with evidence or telling charges and penalty count as interrogation?
Usually yes!
What things are considered background questions for booking exception?
Name, address, date of birth, height, weight etc
Sometimes address could be incriminatory because of elements
What is the standard for Public Safety Exception to Interrogation?
3 prong tests from People v Riddle:
1. Urgency of need and no other course promises relief
2. Possibility of saving life
3. Rescues as primary purpose of interrogators
If no true emergency, statements not admissible!!!
Admissibility of interrogation by undercover of snitch
Not required to give Miranda in these circumstances
May implicate 14th amendment (Voltaire—undercover in jail cell after previously refusing to speak with LEO but not 5th amendment!!)
What is required for a Miranda waiver?
Knowing, voluntary, and intelligent waiver
What does rule 3.111 of criminal procedure say about how a Miranda warning should be?
Writing and 2 witnesses BUT doesn’t require reversal unless prejudice and fundamental rights implicated
Moran v. State holding
External events (like attorneys attempts to see him) irrelevant for Miranda waiver
Don’t need to be given all info that might affect decision to confess
Burden and standard for Miranda waiver
State must prove by preponderance of the evidence that it was a valid waiver
5 Ramirez factors for waiving Miranda
-Manner Miranda rights were administered (trickery)
-Age, experience, background, intelligence
-If juvenile, were parents called
-If it took place at a police station
-Written waiver or verbal
What are things to consider with voluntariness of Miranda?
-Intimidation, coercion or deception are not ok
-Can’t be misstated or down played
Promises for Miranda waivers
-Can offer vague things like make the cooperation known
-Can’t promise “in return for”
Garrett v NJ holding
Public employees can’t be coerced into waiving Miranda when required to cooperate or risk losing job would require duress IF told about this
(Threatening to demote police officer akin to Garrity)
Duxbury not the same because didn’t know he had to comply so not threatened or coerced
What is required for an intelligent waiver?
Full awareness of the nature of the right AND consequences of the decision to abandon it
How to invoke right to remain silent?
Must affirmatively invoke—silence is not enough!!
When do police need to stop questioning?
An UNEQUIVOCAL invocation of silence or counsel
Tanner v State holding re: Miranda
“I’m done” was an invocation combined with other things indicating silence like I don’t got nothing else to say and I have nothing to say
Allmeida holding re: ambiguity
If suspect asks clear question about rights, must stop questioning and give a straightforward answer
(Ex: What good is an attorney going to do?)
What happens if ambiguous assertion?
Nothing! Police not required in Florida to clarify.
How to waive after invocation of rights?
-Suspect reinitiates
-Reread rights
-Validly waive
5 considerations when police reinitiates after invocation of right to remain silent?
-Immediately stopped when invoked
-Reasonable lapse of time
-Different location?
-Were they released from custody and return to normal life?
-Different crimes
Can police ask clarifying “harmless” questions about assertion of right to counsel?
DCA split—some say if it’s a nontestimonial question like do you want to talk to us is fine, others say if it’s clear invocation, they must stop immediately
In Florida, when does the right to counsel under the 6th amendment attach
Info is filed, as soon as possible after arrest OR at FAH
Federally, when does 6th amendment right to counsel attach
Initiation of formal adversarial proceedings—IA or filing of Indictment or Info (Not filing of a complaint)
What types of cases does the 6th amendment attach to?
Where actual imprisonment may be imposed
6th amendment right to counsel: is it offense specific?
YES! Lawyer for one case is not lawyer for all cases
If attorney is trying to reach suspect, do police have to tell him?
Florida: yes Federal: no
When can defendants statements in violation of Miranda be used against him?
Impeachment if he testifies
Due Process and waiver of rights
Per se (threats, force, deprivation of food, sleep or water) and totality of the circumstances (other violations)
Where does the confrontation clause come from?
6th amendment, article 1 section 16, and rule 3.116
What two things does the confrontation clause protect?
Right to physically face those who testify against him and the right to cross-examination
What 4 things does the confrontation clause require?
-in person examination
-under oath
-cross examination
-In front of fact finder for demeanor
Live virtual testimony and the confrontation clause
-Generally not ok—case specific findings that it is necessary for an important public policy and the reliability of the testimony is otherwise assured
