Confessions

Question 1

Four Constitutional Bases to Challenging the Admissibility of Confessions

Answer 1

Include:

• The confession is coerced in violation of due process
• The confession violates the privilege against compelled self-incrimination and the Miranda Rule
• The confession violates the Sixth Amendment right to counsel; or
• The confession is fruit of a poisonous tree (usually an unlawful arrest)

Question 2

Due Process Voluntariness Standard

Answer 2

When police uses actual coercion to obtain a statement that is involuntary and inadmissible for any purpose.

Question 3

DP Standard: Coercion

Answer 3

-Coercion is government conduct that overbears the free will of a suspect. Based on a TOC test. For the exam look for police conduct during an interrogation that abuses or wears down the suspect, like threats of injury, use of physical force, or relentless psychological pressure.

Question 4

Important Factors for Finding Coercion

Answer 4

Include:

• The defendant’s age, health, education, intelligence, gender, and cultural background
• The location, duration, and physical conditions of interrogation
• The number and demeanor of police officers, and the suspect’s experience with the criminal justice system; and
• Any deception or trickery by the police

Question 5

Fifth Amendment Privilege Against Self-Incrimination (PASI)

Answer 5

No person shall be compelled in a criminal case to be a witness against themselves. Individuals have an absolute privilege to refuse to testify when:

• the individual is subjected to gov. questioning
• the defendant has a real and substantial fear that testimony will result in self-incrimination or contribute to the Ds criminal conviction; and
• the D asserted the privilege by refusing to testify

Question 6

PASI: Testimonial Evidence

Answer 6

PASI applies only to “testimonial” evidence and does not permit a witness to refuse to provide other evidence even if it is clearly incriminating (e.g. blood, hair, DNA, fingerprints, participation in a lineup, handwriting samples, etc.).

Question 7

PASI: Testimonial Evidence v. Real and Demonstrative Evidence

Answer 7

Real and demonstrative evidence such as records and documents are not protected by the Fifth Amendment privilege against self-incrimination. This is important for work product and billing records.

Question 8

PASI: “Person”

Answer 8

PASI only applies to natural persons. It does not apply to corporate entities.

Question 9

PASI: Immunity

Answer 9

Use and derivative use immunity, granted together, meet the minimum threshold for overcoming PSI, as a result they are usually granted together.

Question 10

Immunity: State Government v. Federal Government

Answer 10

If one testified under a state grant of immunity, federal authorities must show that they had an independent legal source for the disputed evidence.

Question 11

Miranda Rule

Answer 11

Statements obtained during custodial interrogation are inadmissible in the Ps case-in-chief in the absence of Miranda warnings and proof of a valid waiver.

Question 12

What are the Miranda Rights?

Answer 12

Include the rights:

• to remain silent
• that anything said can be used against them in court
• that they are entitled to the presence of an attorney; and
• that if they cannot afford an attorney, one will be provided

Question 13

When are Miranda Rights Triggered?

Answer 13

When there is custody + interrogation

Question 14

Custody

Answer 14

Formal arrest or a situation where an obj. reasonable person in the suspect’s position would believe that their freedom has been deprived to a degree analogous to formal arrest. The officer’s intent does not matter (unless they indicate an intent to arrest the suspect).

Question 15

Custody v. Seizure

Answer 15

Not every seizure is a custody, but any custody is a seizure.

Question 16

Custody: Traffic Stops and Terry Stops

Answer 16

The SC has held that traffic stop Qs and terry stops are not custody because they are by their nature very brief and do not indicate to a reasonable person “a trip to the station to get booked”

Question 17

Interrogation

Answer 17

Direct questioning or other words or actions that a reasonable officer would anticipate were likely to result in eliciting an incriminating response.

Question 18

Interrogation: Knowledge of Vulnerability

Answer 18

If police are aware of a suspect’s vulnerability and exploits that vulnerability, that fact is imputed to the “reasonable officer” used to assess whether the statements or conduct used by the actual police qualify as interrogation.

Question 19

Government Agent v. Informant

Answer 19

Questioning by an informant does not invoke the Miranda requirement. The suspect must know they are being questioned by a government agent.

Question 20

Miranda: Spontaneous or Volunteered Statements

Answer 20

Spontaneous or volunteered statements do not implicate the Miranda rule because they are not a product of questions.

Question 21

Miranda: Routine Booking

Answer 21

Routine booking questions are not considered interrogation and do not trigger Miranda.

Question 22

Invocation of Miranda Rights

Answer 22

In order to cut off questioning, a suspect must make an unambiguous and unequivocal statement invoking either the right to silence or the right to counsel (e.g. “I don’t want to talk” or “I want a lawyer”). Remaining silent after questions is not enough. However, to use any statements in response to questions will require that D made valid waiver.

Question 23

Waiver of Miranda Rights

Answer 23

Waiver must be knowing and voluntary (P burden).

Question 24

Waiver: Knowing

Answer 24

P must show that suspect understood his rights (given orally or written). The suspect does not need to be warned of possible charges.

Question 25

Waiver by Silence?

Answer 25

Waiver cannot be presumed from silence: However:

• a suspect’s prolonged silence after being advised of rights can establish knowledge and
• if the suspect then answers questions that can be proof of a voluntary relinquishment of rights

Question 26

Miranda Waivers When One is Intoxicated?

Answer 26

Generally, one cannot say that their waiver was not knowing or intelligent because they were intoxicated or under the influence.

Question 27

Public Safety Exception

Answer 27

When the purpose of police questioning is to protect the police or the public from imminent danger or serious harm, the police may question a suspect in custody without a Miranda warning or waiver.

Question 28

Effect of Miranda Violation on the Admissibility of a Subsequent Confessions

Answer 28

A statement made in violation of Miranda normally does not taint a subsequent statement made after a valid Miranda waiver, even if it repeats the same confession. However, if the facts indicate that police deliberately violated Miranda to get a confession and then gave a “mid-stream” warning, any waiver will be considered invalid.

Question 29

Re-Initiating Q After a Suspect Previously Invoked Miranda Rights

Answer 29

The validity of a waiver obtained by police who re-initiate questioning after a suspect previously cut off questioning with an unambiguous Miranda invocation depends on what Miranda right the suspect invoked.

Question 30

Re-Initiating Q After Invocation of Right to Remain Silent

Answer 30

To resume Q, the police must allow for a significant amount of time to elapse, and then obtain a new Miranda waiver.

Question 31

Re-Initiating Q After Invocation of Right to Counsel

Answer 31

Police may not resume questioning until counsel is present unless the suspect re-initiates contact with police and executes a new waiver, or at least two weeks have passed after the suspect was returned to their normal environment before police obtain a new waiver.

Question 32

Miranda: Offense Specific?

Answer 32

The invocation of the Miranda rights is not offense specific. The re-initiation rules apply to any offense that the police seek to question the suspect about, even if it is a different officer from a different jurisdiction (this makes Miranda right more protective than Sixth Amendment Right to Counsel).

Question 33

Remedy for Miranda Violation

Answer 33

Miranda violation will only prevent the P from presenting the statement in their case in chief. A Miranda violation does not result in the exclusion of other evidence derived from the inadmissible statement because it does not trigger the fruit of the poisonous tree doctrine.

Question 34

Police Questioning in Violation of the Sixth Amendment Right to Counsel

Answer 34

It is a Sixth Amendment violation for the government to do any “critical stage” event without the presence of the Ds counsel absent a voluntary and intelligent waiver.

Question 35

What is a Critical Stage Invoking the Sixth Amendment Right to Counsel?

Answer 35

Includes:

• The deliberate elicitation of statements
• A physical identification proceeding
• The preliminary hearing
• Trial

Question 36

Sixth Amendment: Suspect v. Defendant

Answer 36

The Sixth Amendment right to counsel only applies when a “suspect” becomes a “defendant” (when there is a formal charge/arraignment). This protection only applies in relation to the crime that he or she is charged with (therefore, the right is more limited than Miranda).

Question 37

Sixth Amendment: Informants

Answer 37

The D does not have to know that he is being questioned by a government agent. Therefore, this rule applies to the use of informants and undercover agents to elicit statements.

Question 38

Sixth Amendment: Waiver

Answer 38

Government agents may initiate contact with a defendant to elicit a voluntary and intelligent waiver of the Sixth Amendment assistance of counsel during questioning, even if they know he is represented by counsel.

Question 39

Confessions that are Fruit of the Poisonous Tree

Answer 39

If a statement is a “but for” consequence of a prior constitutional violation (normally, an arrest in violation of the Fourth Amendment), the statement may be inadmissible fruit of a poisonous tree unless the government can prove an exception.

Question 40

Confessions that are Fruit of Poisonous Tree: Attenuation

Answer 40

Effective attenuation will depend on how “potent” the poison was: the more flagrant the constitutional violation, the harder it is to attenuate.