Confessions

Question 1

Confessions

Answer 1

• Admissibility of D’s confession (or other incriminating admission) involves analysis under 4th, 5th, 6th, & 14th ams.

Question 2

FOURTEENTH AMENDMENT—
VOLUNTARINESS

Answer 2

• For self-incriminating statement to be admissible under DPC, it must be voluntary, as determined by TOC
• Statement will be involuntary only if there is some official compulsion (ex. confession is not involuntary merely b/c it is product of mental illness).

Question 3

Harmless Error Test Applies
.

Answer 3

• If involuntary confession is admitted into evidence, harmless error test applies; this means conviction need not be overturned if there is other overwhelming evidence of guilt

Question 4

SIXTH AMENDMENT RIGHT TO COUNSEL

Answer 4

• 6th Am guarantees right to assistance of counsel in all criminal proceedings, including all critical stages of prosecution after judicial proceedings have begun (ex. formal charges have been filed).
• Prohibits police from deliberately eliciting an incriminating statement from D outside presence of counsel after D has been charged unless D has waived right to counsel.

Question 5

tip

Answer 5

• There can be no violation of 6th am right to counsel b/f formal proceedings have begun.
• Thus, D who is arrested but not yet charged does not have 6th am right to counsel but does have 5th am right to counsel (see below) under Miranda.

Question 6

Stages at Which Applicable

Answer 6

• D has a right to be represented by privately retained counsel, or to have counsel appointed for them by the state if D is indigent, at following stages:
  (1) Post-indictment interrogation, whether/not custodial
  (2) Prelim hearings to determine PC to prosecute
  (3) Arraignment
  (4) Post-charge lineups
  (5) Guilty plea & sentencing
  (6) Felony trials
  (7) Misdemeanor trials when imprisonment is actually imposed/when a suspended jail sentence is imposed
  (8) Overnight recesses during trial
  (9) Appeals as a matter of right
  (10) Appeals of guilty pleas

Question 7

Stages at Which Not Applicable

Answer 7

• Blood sampling
• Taking of handwriting/voice exemplars
• Precharge/investigative lineups
• Photo IDs
• Prelim hearings to determine PC to detain
• Brief recesses during D’s testimony at trial
• Discretionary appeals
• Parole & probation revocation proceedings
• Post-conviction proceedings

Question 8

Offense Specific

Answer 8

• 6th am is offense specific.
• Even though D’s 6th am rights have attached regarding charge for which they are being held, D may be questioned regarding unrelated, uncharged offenses w/o violating 6th am right to counsel (although interrogation might violate D’s 5th am right to counsel under Miranda; see below).
• 2 offenses will be considered different if each requires proof of an additional element that the other crime does not require.

Question 9

Waiver

Answer 9

• 6th am right to counsel may be waived.
• Waiver must be knowing & voluntary.
• However, waiver does not necessarily require presence of counsel, at least if counsel has not actually been requested by D but rather was appointed by ct.

Question 10

Remedy

Answer 10

• At nontrial proceedings (like post-indictment interrogations), harmless error rule applies to deprivations of counsel.
• But if D was entitled to a lawyer at trial, failure to provide counsel results in automatic reversal of conviction, even w/o a showing of specific unfairness in proceedings.
• Similarly, erroneous disqualification of privately retained counsel at trial results in automatic reversal.

Question 11

Impeachment

Answer 11

• A statement obtained in violation of D’s 6th am right to counsel, while not admissible in prosecution’s case-in-chief, may be used to impeach D’s contrary trial testimony.
• Rule is similar to rule that applies to Miranda violations.

Question 12

FIFTH AMENDMENT PRIVILEGE AGAINST
COMPELLED SELF-INCRIMINATION

Answer 12

• Miranda warnings are required when suspect is in custodial interrogation.
• For an admission/confession to be admissible
  under 5th am privilege against self-incrimination, a person in custody must, prior to interrogation, be informed, in substance, that:
  (1) Person has right to remain silent
  (2) Anything person says can be used against them in ct
  (3) Person has the right to presence of an attorney; and
  (4) If person cannot afford an attorney, one will be appointed for them if they so desire
• Note that warnings need not be verbatim so long as substance of warnings is conveyed.

Question 13

tip

Answer 13

Despite the fact that the Miranda warnings mention
a right to counsel, failure to give warnings violates a D’s 5th am right to be free from compelled self-incrimination, not 6th am right to counsel. Thus, do not be fooled by an answer choice that states such failure is a violation of D’s 6th am rights.

Question 14

When Required

Answer 14

• Anyone in gov’s custody & accused of a crime must be given Miranda warnings prior to police interrogation

Question 15

Governmental Conduct

Answer 15

• Generally, Miranda warnings are necessary only if detainee knows they are being interrogated by a gov agent.
• Warnings are not necessary when detainee is being interrogated by informant whom D does not know is working for police.

Question 16

Inapplicable at Grand Jury Hearing

Answer 16

• Miranda requirements do not apply to an uncharged witness testifying b/f grand jury, even if witness was compelled by subpoena to be there.

Question 17

Custody Requirement

Answer 17

• Determining whether custody exists is a 2-step process:
  (1) Sometimes called “freedom of movement
  test”: whether a reasonable person under the circumstances would feel they were free to terminate interrogation & leave.
• All circumstances surrounding interrogation must be considered.
• If individual’s freedom of movement was limited in this way, next step:
  (2) “Whether the relevant environment presents same inherently coercive pressures as type of station house questioning.”
• Therefore, the more a setting resembles a traditional arrest (more constrained suspect feels), the more likely Ct will consider it to be custody.

Question 18

Interrogation Requirement

Answer 18

• “Interrogation” includes any words/conduct by police that they should know would likely elicit an incriminating response from detainee.
• Miranda warnings are not required b/f spontaneous statements by detainee.
• Routine booking questions do not constitute interrogation.

Question 19

Right to Waive Rights or Terminate Interrogation

Answer 19

• After receiving Miranda warnings, detainee has several options: do nothing, waive Miranda rights, assert right to remain silent, or assert right to consult w/ an attorney.

Question 20

Do Nothing

Answer 20

• If detainee does not respond at all to Miranda
  warnings, Ct will not presume a waiver, but
  neither will Ct presume that detainee has asserted a right to remain silent/to consult with attorney.
• Therefore, police may continue to question detainee.

Question 21

Waive Rights

Answer 21

• Detainee may waive rights under Miranda.
• To be valid, gov must show by preponderance of evidence that waiver was knowing & voluntary.
• Ct will look at TOC in determining whether standard was met.
• If gov shows detainee received Miranda warnings & chose to answer questions, that is likely sufficient.

Question 22

Invocation of Right to Remain Silent

Answer 22

• Detainee’s indication that they wish to remain silent must be explicit, unambiguous, & unequivocal
• If detainee indicates they wish to remain silent, police must scrupulously honor request by not badgering detainee.
• SC has allowed police to reinitiate questioning when police waited a significant amount of time, person was re-Mirandized, & questions were limited to crime that was not the subject of earlier questioning.

Question 23

Invocation of Right to Counsel

Answer 23

• If detainee unambiguously indicates that they wish to speak to counsel, all questioning must cease until counsel has been provided unless detainee
  (1) then waives their right to counsel (ex. by reinitiating questioning) or
  (2) is released from custodial interrogation back to their normal life & 14 days have passed since release.
• A request for counsel must be specific (ex. indicate that detainee desires assistance in dealingw/ interrogation).
• Allowing detainee to consult w/ counsel & then resuming interrogation after counsel has left generally does not satisfy right to counsel—counsel must be present during interrogation unless detainee has waived the right.

Question 24

tip

Answer 24

Note the difference here depending on what detainee asks: If detainee indicates they wish to remain silent, police probably may requestion them about a different crime after a break if fresh warnings are given. If detainee requests counsel, police may not resume interrogating detainee until counsel is provided/detainee initiates questioning.

Question 25

Effect of Violation

Answer 25

• Generally, evidence obtained in violation of Miranda is inadmissible at trial under exclusionary rule.

Question 26

Use of Confession for Impeachment

Answer 26

• Statements obtained in violation of Miranda may be used to impeach D’s trial testimony, but may not be used as evidence of guilt.

Question 27

Warnings After Questioning and Confession

Answer 27

• If police obtain confession from detainee w/o giving Miranda warnings & then give detainee Miranda warnings & obtain a subsequent confession, subsequent confession will be inadmissible if police’s initial failure to warn was intentional (facts make it seem like police used this as a scheme to get around Miranda).
• However, a subsequent valid confession may be admissible if original unwarned questioning seemed unplanned & failure to give Miranda warnings seemed unintentional.

Question 28

Nontestimonial Fruits of an Unwarned Confession

Answer 28

• If police fail to give Miranda warnings & during interrogation detainee gives police info that leads to nontestimonial evidence, evidence will be suppressed if failure was purposeful, but if failure was not purposeful, evidence probably will not be suppressed.

Question 29

Public Safety Exception

Answer 29

• SC has allowed interrogation w/o Miranda warnings when reasonably prompted by concern for public safety (ex. to locate hidden gun that could cause injury to innocent persons).

Question 30

PRETRIAL IDENTIFICATION: Sixth Amendment Right to Counsel

Answer 30

• Suspect has right to presence of attorney at any post-charge lineup/showup.
• No right to counsel at photo IDs/ when police take physical evidence like handwriting exemplars /fingerprints.

Question 31

Tip

Answer 31

Recall that right to counsel b/f trial is very limited & does not cover procedures where D is not personally confronted by witness against them (as in photo ID).

Question 32

Due Process Standard

Answer 32

• D can attack ID as DP violation if ID is unnecessarily suggestive & there is substantial likelihood of misID

Question 33

Tip

Answer 33

B/c a lineup does not involve compulsion to give “testimonial” evidence, a suspect’s 5th am right against compelled self-incrimination does not apply. Thus, D may not refuse to participate in a lineup on this basis.

Question 34

The Remedy

Answer 34

• Remedy for unconstitutional IDs is exclusion of in-ct ID

Question 35

Independent Source

Answer 35

• Witness may make in-ct ID despite existence of an unconstitutional pretrial ID if in-ct ID has independent source.
• Most common independent source is opportunity to observe at time of crime (ex. witness viewed D close up for several minutes during commission of crime).

Question 36

Hearing

Answer 36

• Admissibility of ID evidence should be determined
  at suppression hearing in absence of jury, but exclusion of jury is not constitutionally required.
• The gov bears burden of proving:
  (1) counsel was present;
  (2) waived counsel; or
  (3) independent source for in-ct ID
• D must prove due process violation.