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VA Criminal Procedure > Confessions & Self-Incrimination > Flashcards

Confessions & Self-Incrimination Flashcards

1
Q

What does the privilege against self-incrimination hold?

A

Authorities cannot compel a person to engage in self-incriminating “testimonial” behavior.

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2
Q

What is testimonial behavior?

A

An intentional communication of one’s thoughts.

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3
Q

What removes the privilege against self-incrimination?

A

Immunity. If a person is granted effective immunity, the privilege no longer applies and the person can be compelled to answer.

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4
Q

What are the two types of immunity?

A

Use immunity and transactional immunity.

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5
Q

What is use immunity?

A

a prosecutor cannot use anything you tell them against you, but they can use things others say against you.

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6
Q

What is transactional immunity?

A

A prosecutor cannot use anything you tell them against you, nor can they prosecute you for anything arising from your testimony.

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7
Q

Transactional immunity is usually only given when…

A

D pleads guilty to something.

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8
Q

Transactional immunity is at he discretion of who?

A

The prosecution. The D can’t say they won’t testify if not given T. immunity.

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9
Q

Regardless of the privilege against self-incrimination, a person can be compelled to engage in what?

A

Nontestimonial self-incriminating behavior. e.g. gving blood or breath, DUI walks, visual and audio lineup, making D walk to prove he has a limp is not testimonial.

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10
Q

While blood tests are not within the federally protected privilege against self-incrimination, What is the Virginia law?

A

An unreasonable refusal to submit a blood or breathalyzer test is admissible ony for the purpose of explaining the absence of a chemical test.

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11
Q

Testimonial conduct cannot even be compelled in what type of trial?

A

Civil

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12
Q

When may confessions be inadmissible?

A

if they are:

  • involuntary
  • product of delay in bringing arrested D before magistrate
  • Miranda violation
  • 6th am. right to counsel violation
  • product of an unlawful arrest or detention
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13
Q

A confession is involuntary and inadmissible if:

A

it is obtained through:

  • use of force
  • threats of violence
  • engendering hope of benefit
  • use of drugs, artifice or trick
  • being held incommmunicado for lengthy periods, or
  • threats of worse treatment.
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14
Q

A confession is not involuntary simply because it is prompted by…

A

mental illness. Some official coercion must be present.

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15
Q

What is the harmless error rule as applied to confessions?

A

A conviction will not be overturned for erroneous admission of an involuntary confession if the government can show that there was other overwhelming evidence of guilt.

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16
Q

Confessions resulting from illegal arrests or searches are…

A

inadmissible.

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17
Q

Does recitation of Miranda warnings dissipate the taint of an illegal arrest?

A

Not always.

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18
Q

What is the rule regarding God-coerced confessions?

A

God cannot coerce a confession. The confession is admissible if the suspect confesses because he claimed God told him to and he has a mental impairment.

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19
Q

What are the factors to consider when determining whether a confession is voluntary?

A
  1. deception of the suspect by officers
  2. delay in presenting the suspect before a magistrate, and
  3. promise of a specific benefit made by a person in authority
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20
Q

In order for deceit by an officer to defeat voluntariness of a confession, what must it be?

A

Over-the-top deceitful. Regular, run-of-the-mill lying does not make confession involuntary.

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21
Q

The voluntariness rule is generally pretty (easy/tough) to pass.

A

Tough, unlikely to be inadmissible. unless something crazy happens. When in doubt, likely admissible and not coerced.

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22
Q

When do Miranda Rights apply?

A

When suspect is: suspect is subject to interrogation, and suspect is in custody, that is arrested or its equivalent.

23
Q

Miranda is not applicable during…

A

a nonarrest Terry traffic stop.

24
Q

When is someone in custody for Miranda purposes?

A

A person will be considered to be in custody if a reasonable person with like age, mental and physica condition, intellect, etc. as the suspect would believe that he is not free to go.

25
Q

How do you tell is a suspect is in custody?

A

look for things like handcuffs, weapons drawn

26
Q

When is a situation the functional equivalent to custody?

A

When police assert some authority, e.g. police officers coming to your house at 4 AM and asking you questions.

27
Q

What is an interrogation?

A

Any conduct the police knew or should have known was likely to elicit an incriminating response.

28
Q

Miranda does not apply to incriminating statements that are made…

A

spontaneously, since they are not the product of interrogation. Must be made outside of the interrogation though.

29
Q

In Virginia, subsequent confessions after an involuntary confession are presumed to be…

A

tainted.

30
Q

How can the state overcome the presumption that subsequent confessions after an involuntary confession are tainted?

A

By presenting C&C evidence to the contrary.

31
Q

Tainted evidence can be used to…

A

impeach.

32
Q

Can undercover officers violate Miranda?

A

No, UC officers posing as friends do not violate Miranda, because the suspect doesn’t know he’s in custody. BUT, note that they do violate 6th am. right to counsel.

33
Q

What is the public safety exception to Miranda warnings?

A

If the interrogation is prompted by an immediate concern for public safety, Miranda warnings are unnecessary and any incriminating statements are admissible against the suspect. e.g. man in custody with empty holster on belt. Cops can ask him where the gun is.

34
Q

What are the miranda requirements?

A
  1. suspect has right to counsel present during questioning.
  2. Suspect must be given warnings:
    a. right to remain silent.
    b. Anything said may be used against the suspect.
    c. Right to have an attorney presented. Right to appointed attorney if unable to provide own
35
Q

What are the Miranda waiver requirements?

A

1.Knowing and intelligent 2.voluntary

36
Q

What are the requirements for a knowing and intelligent waiver?

A

Suspect must understand:

i. the nature of the right, and
ii. the consequences of abandoning those rights.

37
Q

What are the requirements for a voluntary waiver?

A

must not be the product of police coercion.

38
Q

What kind of question is voluntariness of a confession? (factual or legal)

A

Factual.

39
Q

Miranda waivers are judged under what standard?

A

Totality of the circumstances test. Must be a showing that the detainee received Miranda warnings and then chose to answer questions.

40
Q

What is the burden of proof to show a valid Miranda waiver and who is the burden imposed on?

A

Burden of proof is on prosecution to prove by preponderance of the evidence.

41
Q

In order to prove the voluntariness of his confession, what can the defendant do?

A

Take the stand to testify at trial. This doesn’t waive his 5th Am. Privilege against self-incrimination.

42
Q

Miranda rights are personal, meaning…

A

a. they must be invoked by suspect, not the lawyer
b. If lawyer wants to be present for the questioning, suspect can still waive rights and confess without attorney.

43
Q

What must the police do after a suspect invoked his Miranda rights?

A

Once invoked, police must “scrupulously honor” a suspect’s request to remain silent. This means, at the very least that the police cannot badger a suspect into talking.

44
Q

After Miranda rights are invoked, what may police do to get a suspect to talk?

A

Wait a respectful period of time and re-approach suspect asking to talk.

45
Q

What must happen after a suspect invokes his right to counsel?

A

All interrogation must cease once suspect invokes right unless a suspect re-initiates.

46
Q

May police wait a respectful time and re-approach a suspect after he invoked his right to counsel?

A

No. The police cannot re-approach the suspect without an attorney present.

47
Q

What must a suspect do to properly invoke his right to counsel?

A

They must be very clear. An ambiguous invocation of the right to counsel not good enough. e.g. “I think I want a lawyer”

48
Q

Request for counsel expires when?

A

14 days after suspect is released from Miranda custody. Suspect may then be questioned regarding the same matter after receiving a fresh set of Miranda warnings.

49
Q

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

A

No. So, interrogation following a request for counsel under Miranda is prohibited as to all topics, outside the presence of the suspect’s atty. i. i.e. if suspect invokes, invocation is good for all crimes cops want to question him about.

50
Q

Incriminating statements obtained in violation of a suspect’s Miranda rights are inadmissible in the prosecutor’s case in chief, but…

A

They may be used to impeach the defendant’s testimony on cross. Not admissible to use against 3rd party witnesses.

51
Q

What is the rule regarding FOPT when no Miranda warnings were given?

A

Failure to give a suspect Miranda warnings does not require suppression of the physical fruits from incriminating statements, provided the statements are voluntary

52
Q

What is the rule regarding subsequent statements after a Miranda waiver?

A

If statement is inadmissible due to a Miranda violation, subsequent statements made after obtaining a Miranda waiver are admissible, provided the initial, non-Mirandized statement was not obtained through the use of inherently coercive police tactics that are offensive to due process.

53
Q

What happens if someone waives, and then then re-asserts their right to counsel?

A

Cops must immediately stop questioning until suspect gets counsel.

VA Criminal Procedure (14 decks)

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