Criminal Law & Procedure Flashcards
Crying
Crying is not testimonial/communicative evidence. The testimony did not violate Miranda, because crying is not the type of compelled communication or testimony protected by the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436 (1966). Miranda has consistently been interpreted to protect only testimonial/communicative evidence. See Schmerberv. California, 384 U.S. 757, 761 (1966) (“We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature). Here, the defendant’s crying would not be considered a testimonial communication. Doe v. U.S., 487 U.S. 201, 210 (1988) (“[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.”).
Custody
Moreover, Miranda protections apply only when a suspect is both in custody and under interrogation. The defendant was under interrogation because the officer had asked him a direct question. See Rhode Island v. Innis, 446 U.S. 291, 300 (1980) (defining interrogation as “either express questioning or its functional equivalent”). But for Miranda purposes, custody can only be established if a reasonable person under similar circumstances would believe that she was in custody.
Recorded recollection
The trial court properly permitted the officer to read her notes to the jury. The document containing the officer’s notes is hearsay because it is an out-of-court statement that is “offer[ed] in evidence to prove the truth of the matter asserted in the statement.”FED.R.EVID.801(c). However, the notes are admissible under the hearsay exception for recorded recollections. FED. R. EVID. 803(5). A recorded recollection is “[a] record that . . . is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately [and] was made . . .when the matter was fresh in the witness’s memory
The trial court erred by receiving the officer’s notes as an exhibit
Although the officer’s notes fit the hearsay exception for recorded recollections, under this exception “[i]f admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. ”FED.R.EVID. 803(5). Here, the notes were used by the prosecutor and offered as an exhibit by the prosecutor, not by an adverse party. Therefore, it was error for the court to admit them as an exhibit.
The admission of the officer’s testimony recounting the defendant’s statement “I have some information that can really help you with this case” did not violate the defendant’s Miranda rights because the defendant initiated communication with the officer.
If a custodial suspect who has invoked his right to counsel initiates post-invocation communication with the police, the suspect’s subsequent statements may be admissible. See Edwards v. Arizona, 451 U.S. 477 (1981). Although a suspect’s questions/comments “relating to routine incidents of the custodial relationship” will not be treated as initiation of communication with the police, Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983), statements from a suspect that clearly indicate a willingness to speak to the police about matters relating to the investigation will be treated as initiation of communication.
The admission of the officer’s testimony recounting the defendant’s December 20 statement “I was there on November 30 and saw the robbery, but I had nothing to do with it” did not violate the defendant’s Miranda rights because, following the defendant’s second invocation of his right to counsel of December 1, the defendant was released from interrogative custody for 19 days. This testimony is nonhearsay because it is an opposing-party statement.
The Supreme Court has concluded that if a suspect has been released from interrogative custody, the police obligation to honor an invocation of the Miranda right to counsel terminates after 14 days. Maryland v. Shatzer, 559 U.S. 98 (2010). Although the defendant invoked his right to counsel on December 1 by saying “Forget it—I want my lawyer,” after Shatzer, that earlier invocation by the defendant of his right to counsel was no longer binding on the officer when she re-arrested the defendant on December 20.
