Confessions (14th DP voluntariness, 6th - right to counsel, 5th- Miranda)

Question 1

What analysis does the admissibility of a D’s confession require (4) ?

Answer 1

1. 4th amendment (unsure)
2. 5th amendment - Privilege against Self-Incrimination (Miranda)
3. 6th amendment - Right to Counsel
4. 14th amendment - Voluntariness (due process clause)

Question 2

What is the general rule with regards to 14th amendment DP clause and voluntariness?

Answer 2

• For a self-incriminating statement to be admissible under DP clause, it must be VOLUNTARY
• This is determined by “totality of circumstances”

Statement is INVOLUNTARY ONLY if –>
- there is OFFICIAL COMPULSION
EXAMPLE –> confession is not involuntary merely bc it’s a result of mental illness

NOTE –> harmless error test applies if involuntary admission is admitted.

Question 3

In general, what is 6th amendment right to counsel and how does it interact with confessions?

Answer 3

• 6th amendment GUARANTEES right to assistance of counsel in all criminal proceedings, which include ALL CRITICAL stages after FORMAL CHARGES have been filed
• prohibits police from DELIBERATELY eliciting a statement from D outside presence of counsel AFTER D has been charged UNLESS he has waived his right to counsel

NOTE –> there can be no 6th amendment right before charging. Thus, if he has been arrested but not yet charged, he will have a 5th amendment right but not 6th amendment

Question 4

What issues arise with regards to 6th amendment right to counsel and confessions?

Answer 4

1. stages at which applicable/ not applicable
2. Offense specific
3. Waiver
4. Remedies
5. Use in impeachment

Question 5

When is 6th amendment right to counsel applicable?

Answer 5

In general –> D has a right to be represented by privately retained counsel, or if indigent, have counsel appointed for him at ALL CRITICAL STAGES after being charged.

Critical –>

1. post-indictment interrogation, whether or not custodial
2. prelim hearings to determine PC to prosecute
3. arraignment
4. post-charge lineups
5. guilty plea and sentencing
6. felony trials
7. misdemeanor trials if imprisonment or suspended sentence is imposed;
8. overnight recess during trial;
9. appeals as a matter of right
10. appeals of guilty pleas

NOT applicable:

1. blood sampling
2. taking of handwriting/voice sample;
3. pre-charge or investigative lineups
4. photo id’s
5. prelim hearings to determine PC to detain
6. brief recess during D’s testimony at trial
7. discretionary appeals
8. parole and probation revocation hearings
9. post-conviction proceedings

Question 6

What is the rule with regards to the 6th amendment right to counsel being “offense specific”?

Answer 6

6th amendment is offense specific

THUS –> even if D’s 6th amendment rights have attached re: charge for which he is being held, he may be questioned regarding UNRELATED, UNCHARGED offenses without violating 6th amendment right to counsel (although it may violate 5th amendment Miranda rights)

TWO crimes are different IF:
-each requires proof of an element that the other does not

Question 7

What is the rule w regards to 6th amendment and waiver?

Answer 7

In general –> 6th amendment right to counsel MAY be waived

Waiver must be:

1. KNOWING; and
2. VOLUNTARY

HOWEVER –> waiver does NOT necessarily require presence of counsel (at least if counsel was not actually requested by D, but appointed by court)

Question 8

What are the remedies for violations of 6th amendment right to counsel?

Answer 8

If non-trial proceeding –> harmless error rule applies to deprivation of counsel

If trail —>

1. failure to provide counsel results in AUTOMATIC REVERSAL OF CONVICTION, even without a showing of unfairness in proceedings
2. same for erroneous disqualification of private counsel

Question 9

What is the rule with regards to 6th amendment violations and impeachment?

Answer 9

Case in chief –> statement obtained in violation of D’s 6th amendment right to counsel is excluded

HOWEVER –> may still be used to impeach D’s CONTRARY trial testimony

NOTE –> same rule applies to miranda violations

Question 10

What is the general rule w regards to 5th amendment privilege against self-incrimination and Miranda warnings?

Answer 10

Prior to custodial interrogation, failure to give Miranda warnings violates D’s privilege against self-incrimination under 5th amendment

Question 11

With regards to 5th amendment privilege against self-incrimination, what is the “custody requirement”?

Answer 11

Totality of circumstances suggests that a reasonable person would not feel free to leave or terminate the interrogation

Question 12

With regards to 5th amendment privilege against self-incrimination, what is the “interrogation requirement”?

Answer 12

• interrogation includes any WORDS or CONDUCT by police that they SHOULD KNOW would be LIKELY TO ELICIT A RESPONSE

THUS –> spontaneous statements made by D are not protected by miranda

NOTE –> routine booking questions do NOT constitute an interrogation

Question 13

Under 5th amendment right against self-incrimination, what are the required Miranda warnings (4)?

Answer 13

1. right to remain silent
2. anything he says CAN be used against him in court
3. right to an attorney
4. if he can’t afford attorney, one will be appointed for him

Question 14

What is the rule w regards to Miranda warnings and knowledge of gov conduct?

Answer 14

Miranda warnings are only required if D KNOWS he is being interrogated by Gov agent

NOTE –> they do NOT apply to uncharged witness testifying before grand jury, even if they are compelled to be there

Question 15

What are the ways in which detainee may respond to Miranda warnings (4)?

Answer 15

1. Do nothing
2. Waive rights
3. Assert right to remain silent
4. Assert right to counsel

Question 16

With regards to miranda, what is the effect if detainee does nothing?

Answer 16

• Court will NOT presume waiver
• NOR will court presume that detainee has asserted right to remain silent or right to attorney

THUS –> police may continue to interrogate

Question 17

With regards to miranda, how may detainee waive rights?

Answer 17

Government must show by a “preponderance of evidence” that waiver was:

1. KNOWING; and
2. VOLUNTARY

Court will look to totality of circumstances, but if gov can show that they were read rights and then proceeded to answer Q’s - this is probably sufficient.

Question 18

With regards to miranda, what is the effect if detainee invokes right to remain silent?

What is needed for invocation to be effective?

Answer 18

To be Effective –> invocation of right to silence must be:

1. EXPLICIT;
2. UNAMBIGUOUS; and
3. UNEQUIVOCAL
   (ie. . simply remaining silent does NOT invoke right to remain silent)

EFFECT–> Police must SCRUPULOUSLY honor his request by NOT BADGERING the detainee

NOTE –> SCOTUS has allowed LATER QUESTIONING to occur on UNRELATED crime

Question 19

With regards to miranda, what is the effect if detainee invokes right to counsel ?

What is needed for invocation to be effective?

Answer 19

To be effective –> detainee must UNAMBIGUOUSLY indicate wish to speak to counsel

• request for counsel must be specific (indicate that he wants help)
• allowing detainee to consult w counsel, and then resuming questioning is NOT OK. Counsel must be present unless he waived that right.

EFFECT –> ALL questioning MUST cease until counsel has been provided UNLESS detainee:

1. then waives his right to counsel (could be by reinitiating questioning); OR
2. is released from custodial interrogation, and 14 days have passed since release

Question 20

With regards to Miranda rights, what is exam tip with regards to difference in effect btwn invocation of right to silence versus right to an attorney?

Answer 20

if wishes to remain silent –> police probably may requisition him about different Crime after break if fresh warnings are given

If wishes to retain attorney –> police can’t interrogate about ANY crime until:

1. counsel is provided OR
2. detainee waives right to Atty initiates the questioning; OR
3. is released from custodial interrogation and 14 days have passed since release

Question 21

What is the effect of a miranda violation?

Answer 21

In general –> evidence obtained in violation of miranda is INADMISSIBLE under the “exclusionary rule”

EXCEPTIONS:

1. may be used to impeach D’s trial testimony
2. if there is a failure to give Miranda rights for first confession, but then 2nd confession is given properly, 2nd confession is OK if it was not done purposely/unlawfully. If done on purpose, 2nd confession is inadmissible.

Question 22

What is the rule w regards to non-testimonial fruits of an unwarned confession?

Answer 22

If police fail to give Miranda warnings, and during interrogation a detainee gives info that leads to NON-testimonial evidence:

Evidence will be suppressed –> if failure was PURPOSEFUL

If failure WAS NOT purposeful –> probably won’t be suppressed

Question 23

What is the public safety exception to Miranda?

Answer 23

SCOTUS has allowed interrogation without Miranda warnings where it was REASONABLY PROMPTED by a CONCERN for public safety

EXAMPLE —> to locate hidden gun that could injure innocent bystander