Confessions

Question 1

Voluntary - self-incriminating statement admissibility

Answer 1

For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances

Involuntary only if there is some official compulsion

Question 2

Harmless error test - involuntary

Answer 2

If an involuntary confession is admitted into evidence, the harmless error test applies

The conviction need not be overturned if there is other overwhelming evidence of guilt

Question 3

Sixth Amendment - when the right starts

Answer 3

Guarantees the right to the assistances of counsel in all criminal proceedings
- felony
- misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed

This includes all critical stages of a prosecution after judicial proceedings have begun - after formal charges has been filed
- arraignment
- post-charge lineups
- appeals as a matter of right
- appeals of guilty pleas

And ends for post-conviction proceedings

Question 4

What Sixth Amendment prohibits

Answer 4

The 6th amend prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged

Unless the defendant has waived their right to counsel

Question 5

Fifth vs Sixth Amend right to counsel

Answer 5

Sixth amendment only applies after formal proceedings have begun

So for a defendant who is arrested but not yet charged does not have a sixth amendment right to counsel, but does have a fifth amendment right under Miranda

Question 6

6th Amendment right and preliminary hearings

Answer 6

Sixth amendment right when it is a preliminary hearing to determine probable cause to prosecute

But does not apply to prelim hearings to determine PC to detain

Question 7

Sixth amendment right and trial recesses

Answer 7

Right applies to overnight recesses during trial, but not during brief recesses during the defendant’s testimony at trial

Question 8

Sixth amendment right and lineups

Answer 8

Right applies to post-charge line ups, but not to pre charge or investigative line ups

Question 9

Sixth amendment right and appeals

Answer 9

Applies to appeals as a matter of right and appeals of guilty pleas

But does not apply to discretionary appeals

Question 10

Sixth Amendment - offense specific

Answer 10

The Sixth Amendment is offense specific

So even if the rights have attached regarding the charge for which they are being held, the defendant may be questioned regarding unrelated, uncharged offenses without violating the sixth amendment right to counsel

Two offenses are considered different if each requires proof of an additional element that the other crime does not require

Question 11

Waive of Sixth Amendment

Answer 11

The sixth amendment right to counsel may be waived

Waiver must be knowing and voluntary

Waiver does not necessarily require the presence of counsel

Question 12

Remedy for depravation of counsel - 6th amendment

Answer 12

At nontrivial proceedings, the harmless error rule applies to deprivations of counsel

If the defendant was entitled to a lawyer at trial, the failure to provide counsel results in automatic reversal of the conviction, even without a showing of specific unfairness in the proceedings

Similarly, erroneous disqualification of privately retained counsel at trial results in automatic reversal

Question 13

Statement obtained in violation of 6th amend right - admissibility

Answer 13

A statement obtained in violation of a defendant’s sixth amendment right to counsel, while not admissible in the prosecution’s case in chief, may be used to impeach the defendant’s contrary trial testimony

Similar to rule that applies to Miranda violations

Question 14

Miranda warnings

Answer 14

Required when a suspect is in custodial interrogation

For an admission or confession to be admissible under the fifth amendment privilege against self-incrimination, a person in custody must, prior to interrogation, be informed that:
- right to remain silent
- anything said can be used against them
- right to presence of attorney, and
- if cannot afford an attorney, one will be appointed

Failure to give warnings violates a defendant’s fifth amendment right to be free from compelled self-incrimination

Question 15

When Miranda warnings are required

Answer 15

Anyone in the custody of the government and accused of a crime must be given Miranda warnings prior to the interrogation by the police

Generally, necessarily only if the detainee knows that they are being interrogated by a government agent
- not needed when the detainee is being interrogated by an informant whom defendant does not know is working for the police

Two core reqs - custody and interrogation

Question 16

Miranda and grand jury hearing

Answer 16

Miranda requirements do not apply to an uncharged witness testifying before a grand jury

Even if the witness was compelled by subpoena to be there

Question 17

Whether custody exists - Miranda

Answer 17

Two step process:

1) freedom of movement test: whether a reasonable person under the circumstances would feel that they were free to terminate the interrogation and leave
- All of circumstances surrounding the interrogation must be considered

2) if individuals freedom of movement was curtailed, next consider whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda
- more a setting resembles a traditional arrest, more likely to be considered custody

Question 18

Interrogation requirement - Miranda

Answer 18

Any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee

So, not required before spontaneous statements made by the detainee

Routine booking questions do not constitute interrogation

Question 19

Options after receiving Miranda warnings

Answer 19

Detainee can
- do nothing
- waive their Miranda rights
- assert the right to remain silent, or
- assert the right to consult with an attorney

Question 20

Detainee does not respond to Miranda warnings

Answer 20

Court will not presume a waiver, but neither will the court presume that the detainee has asserted a right to remain silent or to consult with an attorney

Question 21

Waive miranda rights

Answer 21

To be a valid waiver, the gov must show by a preponderance of the evidence that the waiver was knowing and voluntary

Look at totality of the circumstances in determining whether knowing and voluntary

If gov can show that detainee received Miranda warnings and then chose to answer questions, probably sufficient that waived

Question 22

Invoking right to remain silent

Answer 22

To be effective, the detainee’s indication that they wish to remain silent must be explicit, unambiguous, and unequivocal
- failure to answer does not constitute an invocation of right to remain silent

If indicates that they wish to remain silent, police must honor and not badger the detainee

Question 23

Invoke right to remain silent and reinitiate questioning

Answer 23

Police can reinitiate questioning when the police waited a significant amount of time after the detainee invoked right to remain silent, the detainee was re-mirandized, and the questions were limited to a crime that was not the subject of the earlier questioning

Question 24

Invocation of right to counsel - Miranda

Answer 24

If the detainee unambiguously indicates that they wish to speak to counsel, all questioning must cease until counsel has been provided
- must be specific

Unless the detainee
- then waives their right to counsel (by reinitiating questioning), or
- is released from the custodial interrogation back to their normal life and 14 days have passed since release

Question 25

Counsel’s presence - Miranda warnings

Answer 25

Allowing detainee to consult and then resume interrogation after counsel left generally does not satisfy right

Counsel must be present during the interrogation unless the detainee has waived the right

Question 26

Effect of Miranda violation generally

Answer 26

Generally, evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule

Statements obtained in violation of the Miranda rules may be used to impeach the defendant’s trial testimony, but may not be used as evidence of guilt

Question 27

Question first, warn later nature of questioning - Miranda

Answer 27

If police obtain a confession without giving Miranda, and then give Miranda and obtain a subsequent confession:

Subsequent confession will be inadmissible if the question first, warn later nature of the questioning was intentional
- that it was used as a scheme to get around Miranda reqs

However, a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent

Question 28

Miranda violation and non testimonial evidence found from it

Answer 28

If the police fail to give Miranda warnings and during interrogation a detainee gives the police information that leads to non testimonial evidence, the evidence will be suppressed if the failure was purposeful

But if the failure was not purposeful, the evidence probably will not be suppressed

Question 29

Public safety exception to Miranda warnings

Answer 29

Interrogation without Miranda warnings are allowed when it is reasonably promoted by a concern for public safety

Question 30

Sixth Amendment right to counsel pre trial

Answer 30

Right to counsel before trial is very limited and does not cover procedures where the defendant is not personally confronted by the witness against them

Does not have a right to counsel at photo IDs or when police take physical evidence

Question 31

Pretrial Identification and due process

Answer 31

A defendant can attack an identification as denying due process if the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification

But cannot refuse to participate in a lineup on the basis of fifth amendment right against compelled self-incrimination because does not involve compulsion to give testimonial evidence

Question 32

Remedy for unconstitutional identifications

Answer 32

Remedy for unconstitutional identifications is exclusion of the in-court identification

But witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if the in-court identification has an independent source
- like an opportunity to observe at the time of the crime

Question 33

Admissibility of identification evidence - hearing

Answer 33

Should be determined at a suppression hearing in the absence of the jury, but expulsion of the jury is not constitutionally required

Government bears burden of proving that
- counsel was present
- accused waived counsel, or
- there is an independent source for the in-court identification

Defendant must prove an alleged due process violation