Confessions and Privilege Against Self-Incrimination

Question 1

A confession may be excluded at trial under the

Answer 1

5th, 6th, and/or 14th Amendments of the U.S. Constitution.

Question 2

Due process clause (14th Amendment) – It’s a violation of D’s rights if a confession is

Answer 2

the product of police coercion that overbears the suspect’s free will.

Police MAY use coercive conduct (i.e. lying), as long as it doesn’t overcome D’s free will.

Question 3

Privilege Against Self-Incrimination (5th Amend.) –

Answer 3

protects the right to not incriminate oneself.

Question 4

When do Miranda rights attach?

Answer 4

when a suspect is in a custodial interrogation.

Question 5

Miranda warnings:

Answer 5

(1) right to remain silent,
(2) anything said can be used against suspect in court,
(3) right to talk to an attorney and have one present when they are questioned, and
(4) if cannot afford an attorney, one will be provided.

Question 6

Custody and interrogation

Answer 6

Custody = the person reasonably believes they are not free to leave.

Interrogation = police knew (or should have known) they were likely to elicit an incriminating
response.

Question 7

Miranda only protects statements and acts that are:

Answer 7

communicative or testimonial in nature.

Crying is NOT a testimonial communication.

Miranda rights DO NOT apply to spontaneous statements.

Question 8

Miranda - Public safety exception

Answer 8

a limited interrogation without Miranda warnings IS ALLOWED when police ask questions reasonably prompted by a public safety concern or safety of the officer (i.e. to secure a
weapon).

Question 9

To invoke Miranda rights:

Answer 9

it must be clear and unambiguous.

Question 10

Once Miranda is invoked:

Answer 10

Police must stop ANY questioning

Additionally, D’s silence CANNOT be commented on at trial.

Question 11

Once Miranda has been invoked, Police may reinitiate questioning if:

Answer 11

1) Suspect is re-advised of his Miranda rights;
2) Has provided a knowing and intelligent waiver; AND
3) Either:

(a) counsel is present;
(b) suspect initiates the communication; or
(c) 14-days have passed since the suspect was released from
custody.

Question 12

A valid Miranda waiver must be made:

Answer 12

knowingly, intelligently, AND voluntarily.

D must understand the nature of the right being waived and the consequence for waiving it.

Police failure to provide outside info DOES NOT invalidate a waiver (unless the info was essential to D’s ability to waive rights).

Question 13

Right to Counsel- 6th Amendment

Answer 13

the accused has the right to counsel in ALL criminal prosecutions (except State misdemeanor prosecutions that do not carry a risk of jail time).

Question 14

When does 6th AM right to counsel attach? What happens once it attaches?

Answer 14

Once formal adversarial judicial proceedings are commenced (formal charge, preliminary hearing, indictment, arraignment).

Once rights attach, a suspect CANNOT be questioned without a lawyer, and anything said is inadmissible (unless a valid waiver occurs).

This right is offense-specific.

Question 15

Waiver of 6th AM right to counsel

Answer 15

Same as 5th AM right against self-incrimination

Question 16

Effective Assistance of Counsel (6th Amend.)

Answer 16

D has the right to effective assistance of counsel.

Includes the effective aid in preparation and trial of a criminal case.

Question 17

Ineffective Assistance of Counsel - D must show:

Answer 17

1) Counsel’s performance was deficient; AND
2) But for the deficiency, the result would be different.

*If shown, the verdict MUST be reversed, and D is entitled to a new trial.