Confessions

Question 1

What are the three constitutional provisions that could be used to exclude a confession?

Answer 1

14th Am. DP
6th Am. right to counsel
5th Am. Miranda doctrine

Question 2

What is the standard for a 14th Am. due process violation?

Answer 2

Involuntariness: confession is the product of police COERCION that overbears the suspect’s will.

Note: being psychotic but not “coerced” does not meet this standard.

Question 3

What are the basics of the 6th Am. right to counsel?

Answer 3

Attaches when D is formally charged (not at arrest), and applies to all critical stages of the prosecution thereafter.

It is offense specific,

Question 4

When is the 6th Am. right to counsel violated?

Answer 4

After a person has been formally charged - 6th Am violation occurs when police deliberately elicit statements from D and D has not knowingly, intelligently, and voluntarily waived his right to an attorney.

Question 5

What is NY’s indelible right to counsel?

Answer 5

Attaches whenever there has been significant judicial activity - even before charged - when D would benefit from counsel.
– issue of arrest or search warrant is enough.

If police are aware D is represented on the specific charge, they may not question D about that charge or any other matter without counsel present.

D cannot waive the right to counsel once invoked without counsel present at waiver.

Question 6

What are the four core Miranda rights?

Answer 6

1. right to remain silent
2. anything you say can/will be used against you in court
3. right to an attorney
4. an attorney will be appointed if you can’t afford one

Question 7

When must an officer read Miranda warnings?

Answer 7

When the suspect is under custodial interrogation (both in custody and interrogated).

Question 8

Define custody.

Answer 8

When (objectively) the atmosphere is characterized by police domination and coercion such that freedom of action is limited significantly.

Question 9

Define interrogation.

Answer 9

Police conduct that a reasonable officer would know is likely to elicit an incriminating response.

(Spontaneous confession ≠ interrogation)

Question 10

When can police question a suspect who is in custody?

Answer 10

After reading Miranda rights and obtaining a valid waiver.

Question 11

What constitutes a valid waiver of Miranda rights?

Answer 11

The waiver must be knowing and intelligent and voluntary.

Question 12

When is a waiver of Miranda knowing and intelligent?

Answer 12

The suspect understands the nature of the rights and the consequences of abandoning them.

Question 13

When is a waiver of Miranda voluntary?

Answer 13

when not product of police coercion.

IN NY: if police use deception or concealment to keep a parent away from an interrogated child - the child’s waiver is deemed involuntary.

Question 14

Must a Miranda waiver be express?

Answer 14

No - it can be implied by conduct that indicates a desire to speak to the investigators.

I.e. after hearing Miranda rights, the suspect voluntarily talking to the police is a waiver of the right to remain silent/have an attorney present.

Question 15

Who has the burden of proving a valid waiver of Miranda?

Answer 15

The prosecution by a preponderance of the evidence.

Question 16

How can a suspect invoke the right to remain silent?

Answer 16

By unambiguous invocation.

Question 17

Once a suspect has invoked the right to remain silent, what must police do?

Answer 17

The police must “scrupulously honor” the invocation: cannot badger the suspect into talking, and must wait a significant period of time before reinitiating contact - and must first obtain a valid waiver.

Question 18

How can a suspect invoke the right to counsel?

Answer 18

Request must be sufficiently clear that a reasonable officer hearing it would understand the statement to be a request for counsel.

Question 19

Once a suspect has invoked the right to counsel, what must police do?

Answer 19

Immediately stop the interrogation, and the police may not ask ANY question about ANYTHING outside presence of counsel (5th Amendment right to counsel is not offense specific).

Question 20

When does the invocation of a 5th amendment right to counsel expire?

Answer 20

14 days after suspect released from custody. Must make a knowing and intelligent waiver if statement obtained after this period without counsel.

Question 21

When can a prosecutor use statements taken in violation of Miranda?

Answer 21

Only on cross used to impeach the defendant’s testimony.

Question 22

Must the physical “fruits” of a Miranda violation be suppressed?

Answer 22

No - if the statements are voluntary (but in violation of Miranda), the prosecution can use the physical evidence found as a result of the statements.

Question 23

If the police take a statement in violation of Miranda, then Mirandize and ask more questions, are the post-Miranda statements admissible?

Answer 23

Yes - so long as the un-Mirandized statements were not obtained through inherently coercive police tactics that are offensive to due process.

Question 24

Can D ask for a mistrial if pre-Miranda statements were improperly introduced at trial.

Answer 24

Yes - but only if the error was not harmless.
If the prosecution can prove that D would have been convicted even without the tainted evidence, no new trial will be granted.