Confessions

Question 1

Confessions (14th amendment DPC)

Answer 1

A confession must be voluntary, as determined by the totality of the circumstances
-A statement is involuntary only if there is some official compulsion
-Apply harmless error test to involuntary confessions

Question 2

Harmless error test

Answer 2

A conviction need not be overturned if there is other overwhelming evidence of guilt
-Applies when illegal evidence is admitted unless the error was denial of the 6A right to counsel at trial

Question 3

Sixth amendment right to counsel

Answer 3

Prohibits police from purposefully eliciting incriminating statements from a defendant outside the presence of counsel in a criminal proceeding AFTER formal charges are filed
-OFFENSE SPECIFIC meaning the police can ask questions unrelated to charges
-Right can be waived if knowing and voluntary (does not require presence of counsel)
-Statement in violation of right is inadmissible, but can be used for impeachment purposes
-Violation at non-trial proceeding = harmless error test
-Violation at trial proceeding = automatic reversal

Question 4

Fifth amendment privilege against compelled self-incrimination

Answer 4

The right to silence and to consult an attorney (Miranda/5A rights)
-Miranda warnings are required when a suspect is in custodial interrogation
-Not required at grand jury hearing, even if witness is compelled by subpoena
-Statement in violation of Miranda right is inadmissible, but can be used for impeachment purposes
-If police mistakenly fail to get Miranda warning, information derived from a confession may be admissible
-Public safety exception: interrogation without Miranda when it was reasonably prompted by a concern for public safety
>i.e., “where is the gun?”

Custody requirement:
(1) Determine whether a reasonable person under the circumstances would feel that they were free to terminate the interrogation and leave;
(2) Determine whether the relevant environment presents the same inherently coercive pressures as traditional arrest

Interrogation requirement:
(1) Any police conduct or statement that would likely elicit an incriminating response from the detainee
-Miranda must be given before detainee is interrogated
-Miranda not required before spontaneous statements (“blurting out”)

Question 5

Miranda warning

Answer 5

1. The person has the right to remain silent
2. Anything the person says can be used against them in court
3. The person has the right to presence of an attorney; and
4. If the person cannot afford an attorney, one will be appointed for them if they so desire

*Does not need to be said verbatim so long as substance is conveyed

Question 6

Detainee options after Miranda warning

Answer 6

1. Not respond and allow the police to continue questioning
   -Neither a waiver or assertion of right to remain silent/consult attorney
2. Waive Miranda rights
   -Gov must show by preponderance of evidence that waiver was knowing and voluntary
3. Assert right to remain silent
   -Must be unambiguous
   -Police must scrupulously honor this request, but police can wait a significant amount of time, re-Mirandize, and then ask questions about something else
4. Assert right to counsel
   -Must be unambiguous
   -Police must cease all questioning until counsel is provided, D waives the right to counsel, or D is released from custodial interrogation and 14 days have passed since release

Question 7

Pretrial identification

Answer 7

No 6th amendment right to counsel at photo identifications or when police take physical evidence (i.e., handwriting or fingerprinting)
-D is not personally confronted by witness and before charges
-D can attack photo lineup for due process violations if its unnecessarily suggestive and there is a substantial likelihood of misidentification
>Remedy is exclusion unless there is an independent source outside of the suggestive lineup (most likely a witness during the crime)

Yes 6th amendment right to counsel at post-charge lineup