confessions

Question 1

what triggers the Miranda warnings

Answer 1

1) CUSTODIAL

2) INTERROGATION

Question 2

what are the Miranda warnings?

Answer 2

1) right to remain silent
2) anything say can and will be used against you
3) have right to attorney and
4) if cannot afford attorney, one will be appointed

Question 3

what is custodial under Miranda

Answer 3

you are in custody if at the time of the interrogation, A REASONABLE PERSON WOULD NOT feel free to leave

Question 4

what is the std to determine custodial?

Answer 4

reasonable person std. would a reasonable person feel not able to leave

Question 5

what is not considered custodial?

Answer 5

1) probation interviews and

2) routine traffic stops

Question 6

what is interrogation

Answer 6

any conduct where the police knew or should have known that they might ILLICIT INCRIMINATING RESPONSE from the suspect

Question 7

is any questioning considered interrogation?

Answer 7

NO. NEED ILLICIT INCRIMINATING RESPONSE

Question 8

what are miranda warnings not required before?

Answer 8

spontaneous statements

Question 9

how may a person waive their miranda rights?

Answer 9

waiver must be

1) KNOWINGLY AND
2) VOLUNTARY

Question 10

what is the test to determine if a person waived their miranda rights?

Answer 10

TOTALITY OF THE CIRCUMSTANCES

Question 11

how must a person invoke their right to remain silent?

Answer 11

must do so UNAMBIGUOUSLY

i wish to remain silent

Question 12

when may the cops reinitiate questioning after the D as invoked right to main silent?

Answer 12

if they

1) wait a significant amount of time,
2) D is read Miranda rights again,
3) and the questions are limited to a crime that was NOT SUBJECT OF EARLIER QUESTIONING

Question 13

how must a person invoke their right to counsel

Answer 13

UNAMBIGUOUSLY

Question 14

what happens when a person invokes their right to an attorney?

Answer 14

all questions MUST end until

1) the accused is given an attorney OR
2) the accused initiates further questioning

Question 15

when does a break in custody happen

Answer 15

14 days, police can come back and ask D to waive miranda rights

Question 16

when does 5th amendment right to counsel arise?

Answer 16

when person invokes Miranda rights and requests attorney

Question 17

when does 6th amendment right to counsel arise

Answer 17

when adverse proceeding against D

Question 18

is 5th amendment right to counsel offense specific?

Answer 18

NO thus applies entire process of custodial interrogation

Question 19

is 6th amendment right to counsel offense specific?

Answer 19

YES

Question 20

what is the significance if an attorney is merely appointed under 6th amendment?

Answer 20

if only APPOINTED

police can come back and ask D to waive 6th amendment right to counsel and talk about the crime which he was charged

Question 21

3 ways to attack confession

Answer 21

1) involuntary
2) miranda violations
3) right to counsel

Question 22

can involuntary confessions be used to impeach

Answer 22

no

Question 23

can miranda violations be used for impeachment

Answer 23

YES

Question 24

when does the right to counsel begin

Answer 24

once charged with a formal indictment

- can use for impeachment purposes

Question 25

burden of proof

Answer 25

1) state must prove each element beyond reasonable doubt
2) defense 1 of elements then no burden on the D
- all other defenses by preponderance of evidence

Question 26

6th amendment: can the P place informant in D’s cell after D has been indicted and deliberately elicits statements from D regarding the crime which was indicted for

Answer 26

NO. Violation of 6th amendment. Adversary proceeding has begun

Question 27

6th Amendment: is it a violation to place an informant in the D’s cell, and not take action behind mere listening?

Answer 27

NO. must take some action behind mere listening, must be designed deliberately to elicit incriminating remarks.

Question 28

is the 6th amendment right to counsel offensive specific

Answer 28

YES. thus if D charged for one crime can be questioned w/o counsel concerning an unrelated charge.

Question 29

can a statement obtained in violation of 6th amendment right to counsel be used for impeachment

Answer 29

YES, like the miranda violations

Question 30

are miranda warnings needed when an informant is placed in a cell with D

Answer 30

NO, b/c D does not know the person is a snitch, and not custodial interrogation.

Question 31

do the miranda requirements apply to a W testifying before a grand jury

Answer 31

NO

Question 32

are traffic stops generally custodial

Answer 32

NO.

Question 33

if a D says he wishes to remain silent can the police come back several hours later and ask about a different crime

Answer 33

YES.

1) if the police immediately stopped upon request and did not ask again for several hours AND
2) the detainee was REWARNED of his rights AND
3) questioning was LIMITED TO A CRIME THAT WAS NOT SUBJECT TO EARLIER questioning

Question 34

what if a detainee makes an unequivocal request to have a lawyer present during question?

Answer 34

all questioning must cease until detainee is provided with attorney OR

• initiates further questioning himself
• 5th amendment prevents ALL questioning

Question 35

What does the 5th Amendment freedom from self-incrimination only apply to?

Answer 35

testimonial evidence. does not apply to physical evidence

Question 36

Does 5th amendment freedom from self-incrimination apply to physical evidence

Answer 36

NO