Confessions

Question 1

3 Federal Constitutional Challenges to exclude a confession?

1 Additional NY Constitutional Challenge?

Answer 1

• 14th A Due Process Clause
• 6th A Right to Counsel
• 5th A Miranda Doctrine
• NY 6th A Indelible Right to Counsel

Question 2

What is the standard for excluding a confession under the Due Process Clause?

Answer 2

Involuntariness (meaning police coercion) that overbears the suspect’s will.

NY- has specifically ruled that the length of interrog. & custody are factors to consider in determining voluntariness of confessions

Question 3

Federal 6A Right to Counsel-

• when does it attach?
• what does it apply to?
• is it, or is it not, offense specific?

Answer 3

• attaches when the D is formally charged, NOT upon arrest!
• applies to all critical stages that take place after the filing of formal charges (arraignment, hearings, interrogation)
• Offense Specific- applies only to offenses with which a D has been formally charged; provides no protection for uncounseled interrogation for other uncharged criminal activity

Question 4

New York’s Indelible Right to Counsel

• greater or lesser protection than federal 6A?
• when does it attach?
• is it, or is it not, offense specific?

Answer 4

• Greater protection
• ** Attaches: (i) when the D is in custody, the police are engaging in “activity overwhelming to the layperson,” and the D requests counsel (ii) at arraignment; iii) upon the filing of an accusatory instrument; or (iv) when there has been any signif judicial activity **
• not offense specific– if a D is taken into custody for questioning on a charge AND police know he is repped by counsel on that charge, they may not question him about THAT charge OR ANY OTHER matter w/o his attorney present.

Question 5

How do you waive right to counsel? Indelible right to counsel?

Answer 5

• Knowingly, intelligently, voluntarily
• If a D is repped by counsel, indelible right in NY must be waived in attorney’s presence UNLESS released and later brought in on unrelated charge

Question 6

Four Core Miranda Warnings

Answer 6

1- right to remain silent
2- anything you say can and will be used against you in a ct of law
3- right to an attorney
4- if you cannot afford one, an attorney will be appointed for you

Question 7

When are Miranda warnings necessary?

Answer 7

CUSTODIAL INTERROGATION
-CUSTODY- a person is in custody for Miranda purposes if the atmosphere is objectively characterized by police domination and coercion such that his or her freedom of action is limited in a “significant way.”

-INTERROGATION- any conduct the police KNEW or SHOULD HAVE KNOWN was likely to elicit an incriminating response

Question 8

Public Safety Exception to Miranda

Answer 8

If a custodial interrogation is prompted by an immediate concern for public safety, Miranda warnings are unnecessary and any incriminating statements are admissible against the suspect.

ex- boston bombin suspect

Question 9

When is a Miranda waiver “knowing and intelligent” and “voluntary”??

Answer 9

• Knowing & Intelligent if the suspect understands (i) the nature of the rights; and (ii) the consequences of abandoning them.
• voluntary if not the product of police coercion

Question 10

NEW YORK Parent/Child Waiver Rule

Answer 10

if the police use deception or concealment to keep a parent away from a child being interrogated, the child’s waiver may be deemed invalid.

Question 11

Burden of Proof for Miranda Waiver

Answer 11

Prosecution bears the burden of proving a valid waiver of a suspect’s Miranda rights by a preponderance of the evidence.

Question 12

Invoking the Right to Remain Silent

Answer 12

• must invoke UNAMBIGUOUSLY
• police must SCRUPULOUSLY HONOR invocation, meaning they can’t badger and they must wait a significant period of time before reinitiating questioning and must obtain a valid waiver

Question 13

** Invoking the Right to Counsel

Answer 13

• once suspect makes a SUFFICIENTLY CLEAR request for counsel (one that a reasonable officer would understand) all interrogation must cease unless initiated by the suspect

Question 14

Is the 5th Amendment Miranda right to counsel offense specific?

Answer 14

NOOOO!!!
Unlike the 6A, the 5A right to counsel is not offense-specific. Therefore, interrogation following a Miranda request for counsel is prohibited as to ALL TOPICS outside the presence of the suspect’s attorney.

Question 15

When does a Miranda request for counsel expire?

Answer 15

• 14 days after suspect is released from custody

- a waiver obtained after this period is valid, provided it is knowing, intelligent and voluntary

Question 16

Can statements obtained in violation of Miranda ever be used?

Answer 16

• inadmissible in case-in-chief
• admissible to impeach Ds testimony
• not admissible to impeach the testimony of a third-party witness

Question 17

Miranda & Physical Fruits?

Answer 17

Failure to give a suspect Miranda warnings does NOT require the suppression of the PHYSICAL FRUITS of incriminating statements, provided the statements are voluntary.

Question 18

Post-Miranda statements after an inadmissible non-Mirandized statement?

Answer 18

Admissible provided the initial, non-Mirandized statement was not obtained through the use of inherently coercive police tactics, offensive to due process.

Question 19

Must miranda be given before physical tests?

Answer 19

Privilege against self-incrimination under miranda bars a state from compelling a person to provide evidence of a testimonial or communicative nature. Evidence is testimonial or communicative when it reveals a person’s subjective knowledge or thought process. Physical performance tests, or photos of tattos, do not do this.