Confessions & Privileges Against Self-Incrimination & Right to Counsel

Question 1

confession exclusions

Answer 1

a confession may be excluded at trial under 5A, 6A, and/or 14A of the US Constitution

Question 2

due process clause (14A)

Answer 2

it’s a violation of D’s rights if a confession is the product of police coercion that overbears the suspect’s free will
- police MAY use coercive conduct (ie, lying) as long as it does NOT overcome D’s free will

Question 3

privileges against self-incrimination (5A)

Answer 3

protects the right to NOT incriminate oneself

Question 4

miranda rights

Answer 4

attach when a suspect is in a custodial interrogation
- police MUST give Miranda warning

NOTE: statements made in violation of a suspect’s Miranda rights are subject to the exclusionary rule

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

custodial 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

statements / acts protected

Answer 7

ONLY protects statements and acts that are communicative or testimonial in nature
- crying is NOT a testimonial communication
- miranda rights DO NOT apply to spontaneous statements

Question 8

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 (ie, to secure a weapon)

Question 9

invoking miranda rights

Answer 9

it MUST be clear and unambiguous
- once invoked, police MUST stop ANY questioning
- Additionally, D’s silence CANNOT be commented on @ trial

Question 10

reinitiating questioning

Answer 10

police may reinitiate questioning if:
1. suspect is re-advised of his miranda rights,
2. has provided a knowing and intelligent waiver, AND
3. either:
- counsel is present,
- suspect initates the communication, OR
- 14 days have passed since the suspect was released from custody

Question 11

waiver of miranda rights

Answer 11

a valid waiver MUST be made 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 12

right to counsel (6A)

Answer 12

the accused has the right to counsel in ALL criminal prosecutions (except state misdemeanor prosecutions that do NOT carry a risk of jail time)
- Attaches: once formal adversarial judicial proceedings are commenced (formal charge, preliminary hearing, indictment, arraignment)
- once right attaches, a suspect CANNOT be questioned WITHOUT a lawyer and anything said is inadmissible (unless a valid waiver occurs)
- the right is offense-specific

Waiver of rights: same as waiver under 5A

Question 13

right to counsel (5A)

Answer 13

SEE RULE IN ABOVE SECTION
- attaches when a suspect is in a custodial interrogation (Miranda Rights)
- suspect has the right to consult w/ an attorney and have one present during questioning

Question 14

effective assistance of counsel (6A)

Answer 14

D has the right to effective assistance of counsel
- includes the effective aid in preparation AND trial of a criminal case

Question 15

ineffective assistance of counsel

Answer 15

D MUST show:
1. counsel’s performance was deficient, AND
2. but for the deficiency, the result would be different

NOTE: if shown, the verdict MUST be reversed, and D is entitled to a new trial