Confessions: 6A Right to Counsel & Pretrial Identifications Flashcards
What is required for a confession (self-incriminating statement) to be admissible under the Due Process Clause?
Confession must be voluntary
* Confession from person with mental illness is still voluntary
Confession is involuntary only if there is an official compulsion
* If involuntary confession admitted into evidence, harmless error test applies: conviction is not overturned if there is other overwhelming evidence of guilt
* If there isn’t other evidence, involuntary confession is suppressed
Voluntariness of confession based on totality of the circumstances test!
What does the 6th Amendment guarantee?
Right to assistance of counsel in critical stages of prosecution, after judicial (formal) proceedings have begun
Prevents police from deliberately eliciting incriminating statement from D without counsel, unless D has waived right to counsel
Critical stages of prosecution
* Charges have been formally filed
* Arraignment
* Post-indictment interrogation (custodial or not)
* Preliminary hearings to determine probable cause to prosecute
* Post-charge lineups
* Guilty plea and sentencing
* Felony trials
* Misdemeanor trials when imprisonment actually imposed/suspended jail sentence imposed
* Overnight recesses during trial
* Appeals as matter of right
* Appeals of guilty pleas
NOT applicable
* Arrested but not yet charged
* Precharge or investigative lineups
* Photo identifications
* Taking handwriting or voice exemplars
* Blood sampling
* Preliminary hearings to determine probable cause to detain
* Brief recesses during D’s testimony at trial
* Discretionary appeals
* Parole and probation revocation proceedings
* Post-conviction proceedings
Can 6A right to counsel be waived?
Yes - voluntary and knowing waiver required
Waiver doesn’t require presence of counsel IF counsel was appointed by the court (required if D requested counsel)
Is the 6th Amendment offense-specific?
Yes, 6A rights only attach to charge for which D is being held; D can be questioned regarding unrelated, uncharged offenses
Two offenses are “different” if each requires proof of an additional element that the other crime does not.
Ex. Arson v. Murder
What is remedy for 6A violation? How does it differ for nontrial vs. trial proceedings?
Nontrial proceeding (post-indictment interrogation): apply harmless error rule
Trial: If D not given counsel at trial, conviction is automatically reversed
* Erroneous disqualification of privately retained counsel at trial –> automatic reversal
Can a statement obtained in violation of 6A be used against D?
NOT admissible in prosecution’s case-in-chief BUT can be used to impeach D’s contrary trial testimony
Similar rule for Miranda violations
Pretrial Identification
Does 6th Amendment right to counsel apply to post-charge lineups or showups?
Yes, D has right to have counsel present for the entirety of a post-charge lineup or showup
* If counsel saw only a part of it, lineup evidence must be suppressed
6A does NOT apply for photo identifications or when police take physical evidence (fingerprints/handwriting samples)
Attorney must be present when accused is VISIBLE to the witnesses during lineup
Right to Counsel Review
Pretrial Identification
When can D attack pretrial identification as denying due process?
Identification violates due process IF (a) identification is unnecessarily suggestive and (b) there is substantial likelihood of misidentification
Ex. Victim says D is bald white man; in lineup, there’s only one bald white man.
Pretrial Identification
What is remedy for unconstitutional identifications (that violate due process)?
Exclude in-court identification
Pretrial Identification
What are the two exceptions to remedying unconstitutional identifications?
(a) Independent Source: Even if there was unconstitutional pretrial identification, witness can still make in-court identification if there’s an independent source (ex. witness saw D close-up for few minutes during crime)
(b) Hearing: Parties can request suppression hearing (w/o jury) to determine admissibility of identification evidence.
* To win, gov must prove (1) counsel was present, or (2) D waived counsel, or (3) there’s independent source for in-court identification.
* To win, D must prove due process violation
Excluding jury isn’t constitutionally required for suppression hearing
