CrimP 5 - Confessions

Question 1

Confessions

Answer 1

The admissibility of a defendant’s confession (or other incriminating admission) involves analysis under the Fourth, Fifth, Sixth, and Fourteenth Amendments.

Question 2

FOURTEENTH AMENDMENT—VOLUNTARINESS

Answer 2

For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances.

A statement will be involuntary only if there is some official COMPULSION (for example, a confession is not involuntary merely because it is a product of mental illness).

Question 3

Confessions must be VOLUNTARY

Answer 3

• Voluntariness determined by totality of circumstances

Question 4

Harmless Error Test Applies

Answer 4

If an involuntary confession is admitted into evidence, the harmless error test applies; this means the conviction need not be overturned if there is other overwhelming evidence of guilt.

Question 5

If involuntary confession admitted into evidence…

Answer 5

• Harmless error test applies > conviction need not be overturned if overwhelming evidence of guilt.

If an involuntary confession is admitted into evidence, the harmless error test applies; this means the conviction need not be overturned if there is other overwhelming evidence of guilt.

Question 6

Sixth Amendment RIght to Counsel

Answer 6

• Applies to all CRITICIAL STAGES of prosection AFTER judicial proceedinfgs have begun.

The Sixth Amendment guarantees the right to the assistance of counsel in all criminal proceedings, which include all critical stages of a prosecution after judicial proceedings have begun (for example, formal charges have been filed).

It prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel AFTER THE DEFENDANT HAS BEEN CHARGED, UNLESS the defendant has waived their right to counsel.

NOTE: there can be no violation of the Sixth Amend- ment right to counsel before formal proceedings have begun.
Thus, a D who is arrested but not yet charged does not have a Sixth Amendment right to counsel but does have a Fifth Amendment right to counsel (see below) under Miranda.

Question 7

When does the Sixth Amendment right to counsel arise?

What about the Fifth amendment right to counsel?

Answer 7

that there can be no violation of the Sixth Amend- ment right to counsel before formal proceedings have begun. Thus, a defendant who is arrested but not yet charged does not have a Sixth Amendment right to counsel but does have a Fifth Amendment right to counsel (see below) under Miranda.

Question 8

Stages when 6th Amendment right to counsel applies

Answer 8

A defendant has a right to be represented by privately retained counsel, or to have counsel appointed for them by the state if the defendant is indigent, at the following stages:
• Post-indictment interrogation (interrogation AFTER), whether or not custodial
• Preliminary hearings to determine probable cause to prosecute
• Arraignment
• Post-charge lineups
• Guilty plea and sentencing
• Felony trials
• Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed
• Overnight recesses during trial
• Appeals as a matter of right
• Appeals of guilty pleas

Question 9

Stages when 6th Amendment right to counsel does NOT apply:
Stages at Which Not Applicable

Answer 9

• Blood sampling
• Taking of handwriting or voice exemplars
• Precharge or investigative lineups
• Photo identifications
• Preliminary hearings to determine probable cause to detain
• Brief recesses during the defendant’s testimony at trial
• Discretionary appeals
• Parole and probation revocation proceedings
• Post-conviction proceedings

Question 10

Sixth Amendment right to counsel is OFFENSE SPECIFIC:

Rule:

Two offenses will be considered different if…

Answer 10

The Sixth Amendment is offense specific.

Thus, even though a defendant’s Sixth Amendment rights have attached regarding the charge for which they are being held, the defendant may be questioned regarding UNRELATED, UNCHARGED offenses without violating the Sixth Amendment right to counsel
(although the interrogation might violate the defendant’s Fifth Amendment right to counsel under Miranda).

Two offenses will be considered different if EACH requires proof of an additional element that the other crime does not require.

Police can ask you OTHER questions UNRELATED to the crime being charged…

Question 11

Waiver of Sixth amendment right to counsel

Answer 11

The Sixth Amendment right to counsel may be waived.

Waiver of right to counsel must be KNOWING AND VOLUNTARY.

Does NOT require counsel to be present. The waiver does not necessarily require the presence of counsel, at least if counsel has not actually been requested by the defendant but rather was appointed by the court.

Question 12

Remedy for violation of Sixth amendment right to counsel.

Answer 12

NONTRIAL: At nontrial proceedings (such as post-indictment interrogations), the harmless error rule applies to deprivations of counsel.

AT TRIAL: But if the defendant was entitled to a lawyer at trial, the failure to provide counsel results in AUTOMATIC REVERSAL of the conviction, even without a showing of specific unfairness in the proceedings.

Similarly, erroneous disqualification of privately retained counsel at trial results in automatic reversal.

Question 13

Impeachment

Answer 13

A statement obtained in violation of a defendant’s Sixth Amendment right to counsel, while NOT admissible in the prosecution’s case-in- chief, may be used to impeach the defendant’s contrary trial testi- mony.

This rule is similar to the rule that applies to Miranda violations.

Question 14

FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION

Answer 14

.

Question 15

Miranda Warnings:

Required when?

What are the warnings?

Standard?

Answer 15

Required when person in (i) CUSTODIAL (ii) INTERROGATION (iii) by the police.

Miranda warnings are required when a suspect is in custodial interrogation.
For an admission or confession to be admissible under the Fifth Amendment privilege against self-incrimination, a person in custody must, prior to interrogation, be informed, in substance, that:
• The person has the right to remain silent
• Anything the person says can be used against them in court
• The person has the right to presence of an attorney; and
• If the person cannot afford an attorney, one will be appointed for them if they so desire.

Note that the warnings need not be verbatim so long as the substance of the warnings is conveyed.

Question 16

Do miranda warnigns need to be verbatim?

Answer 16

No. Note that the warnings need not be verbatim so long as the substance of the warnings is conveyed.

Question 17

The failure to give the Miranda warnings violates what?

Answer 17

Despite the fact that the Miranda warnings mention a right to counsel, the failure to give the warnings violates a defendant’s Fifth Amendment right to be free from compelled self-incrimination, not their Sixth Amendment right to counsel.
Thus, do not be fooled by an answer choice that states such failure is a violation of defendant’s Sixth Amendment rights.

Question 18

When are Miranda warnings required?

Answer 18

Anyone in the custody of the government and accused of a crime must be given Miranda warnings prior to interrogation by the police.

a. Governmental Conduct:

b. Custody Requirement: two step process below

c. Interrogation Requirement

Question 19

When are Miranda warnings required? a. GOVERNMENTAL CONDUCT

Answer 19

a. Governmental Conduct: Miranda warnings necessry ONLY if detainee knows they are being interrogated by government agent. NOT aplicable if informant. The warnings are not necessary when the detainee is being interrogated by an informant whom the defendant does not know is working for the police.

• Inapplicable at Grand Jury Hearing: The Miranda requirements do not apply to an uncharged witness testifying before a grand jury, even if the witness was compelled by subpoena to be there.

Question 20

When are Miranda warnings required? b. CUSTODY requirement: Two-step process for derterming custody

Answer 20

Determining whether custody exists is a two-step process:

1. The first step (sometimes called the “freedom of movement test”): Whether reasonable person would feel FREE TO terminate interrogation and LEAVE.
   Requires the court to determine whether a reasonable person under the circum- stances would feel that they were free to terminate the interrogation and leave.
   All of the circumstances surrounding the interrogation must be considered.
2. Whether environment presents same inherently coercive pressures as station house questioning.
   Considers “whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.” Therefore, the more a setting resembles a traditional arrest (that is, the more constrained the suspect feels), the more likely the Court will consider it to be custody.

Question 21

spontaneous statements by detainee.

Answer 21

Miranda warnings not required before spontaneous statements by detainee.

Question 22

If statement was “Blurted out”

Answer 22

Means its a spontaneous statement, so its admissible.

Question 23

When are Miranda warnings required? c. Interrogation Requirement

Answer 23

Any words or conduct by police that they should know would LIKELY ELICIT an INCRIMINATING response.

“Interrogation” includes any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee.

Thus, Miranda warnings are not required before sponta- neous statements are made by a detainee.

Note that routine booking questions do NOT constitute interrogation.

Question 24

Right to Waive Rights or Terminate Interrogation

Answer 24

After receiving Miranda warnings, a detainee has several options: do nothing, waive their Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney.

Question 25

Do Nothing: If detainee does nothing after receiving Miranda warnings

Answer 25

If the detainee does not respond at all to Miranda warnings, the Court will not presume a waiver, but neither will the Court presume that the detainee has asserted a right to remain silent or to consult with an attorney. Therefore, the police may continue to question the detainee.

Question 26

Waive Rights

Answer 26

WAIVER of Miranda rights must be KNOWING and VOLUNTARY.

The detainee may waive their rights under Miranda.

To be valid, the government must show by a preponderance of the evidence that the waiver was knowing and voluntary.

The Court will look to the totality of the circumstances in determining whether this standard was met.

But it appears that if the government can show that the detainee received Miranda warnings and then chose to answer questions, that is probably sufficient.

Question 27

Invocation of Right to Remain Silent

Answer 27

• MUST BE UNAMBIGIOUS “i invoke my right to remain silent”
  To be effective, the detainee’s indication that they wish to remain silent must be explicit, unambiguous, and unequivocal (for example, the accused’s failure to answer does not consti- tute an invocation of the right to remain silent).
• Police must SCRUPULOUSLY HONOR request by NOT badgering detainee.
  If the detainee indicates that they wish to remain silent, the police must scrupu- lously honor this request by not badgering the detainee.

In the Supreme Court’s only opinion directly on point, it allowed police to reinitiate questioning when the police waited a significant amount of time, the person was re-Mirandized, and the questions were limited to a crime that was not the subject of the earlier questioning.

Question 28

Is remaining silence an invocation of the right to remain silent?

Answer 28

NO, must be UNAMBIGOUS invocation.

Question 29

Invocation of Right to Counsel

Answer 29

• MUST be UNAMBIGIOUS
  A request for counsel must be specific (for example, indicate that the detainee desires assistance in dealing with interrogation).
• ALL questioning must CEASE UNTIL counsel has been provided, UNLESS detainee
  – WAIVES right to counsel or
  – IS released back to normal life and 14 DAYS have passed since release.

If the detainee unambiguously indicates that they wish to speak to counsel, all questioning must cease until counsel has been provided unless the detainee:
(1) then waives their right to counsel (for example, by reinitiating questioning) or
(2) is released from the custodial interrogation back to their normal life and 14 days have passed since release.

Allowing the detainee to consult with counsel and then resuming interrogation after counsel has left generally does not satisfy the right to counsel—counsel must be present during the interrogation unless the detainee has waived the right.

Question 30

Invocation of silence vs counsel

Answer 30

If the detainee indicates that they wish to remain silent, the police probably may requestion them about a different crime after a break if fresh warnings are administered.

If the detainee requests counsel, the police may not resume interrogating the detainee until counsel is provided or the detainee initiates the questioning.

Question 31

“Maybe I should get a lawyer now.” “Sounds like i might need an attorney”

Answer 31

NOT an invocation of right to counsel. MUST BE UNAMBIGIOUS.

Question 32

Effect of violation of Miranda rules

Answer 32

• Evidence generally INADMISSABLE.
  Generally, evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule.

BUT, EXCEPTIONS:
- Statments may be used to IMPEACH Defendant’s trial testimony, BUT NOT used as evidence of guilt.
- Warnings After Questioning and Confession
- Nontestimonial Fruits (evidence) of an Unwarned Confession

Question 33

Use of Confession for Impeachment

Answer 33

Statements obtained in violation of the Miranda rules may be used to impeach the defendant’s trial testimony, but may not be used as evidence of guilt.

Question 34

Warnings After Questioning and Confession

Answer 34

If the police obtain a confession from a detainee without giving them Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the “question first, warn later” nature of the questioning was intentional (that is, the facts make it seem like the police used this as a scheme to get around the Miranda require- ments). However, a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent.

Question 35

Nontestimonial Fruits of an Unwarned Confession

Answer 35

• If Detainee gives police information that leads to nontestimonial evidence -> Evidence suppressed if FAILURE to give Miranda warnings was PURPOSEFUL, BUT likely ADMITTED if FAILRUE was NOT PURPOSEFUL.

If the police fail to give Miranda warnings and during interroga- tion a detainee gives the police information that leads to nontes- timonial evidence, the evidence will be suppressed if the failure was purposeful, but if the failure was not purposeful, the evidence probably will not be suppressed.

Question 36

Public Safety Exception

Answer 36

• Police CAN interrogate WITHOUT Miranda warnings when reasonably promted by CONCERN FOR PUBLIC SAFETY.

The Supreme Court has allowed interrogation without Miranda warnings when it was reasonably prompted by a concern for public safety (for example, to locate a hidden gun that could have caused injury to innocent persons).

Question 37

PRETRIAL IDENTIFICATION

Answer 37

.

Question 38

PRETRIAL IDENTIFICATION: Sixth Amendment Right to COunsel

Answer 38

• 6th AMENDMENT right to counsel at POST-CHARGE lineup or showup.
  A suspect has a right to the presence of an attorney at any post-charge lineup or showup.
• NO Right to counsel at PHOTO IDENTIFICATIONS.
  An accused does not have a right to counsel at photo identifications or when police take physical evidence, such as handwriting exemplars or fingerprints.

Question 39

Due Process Standard

Answer 39

Defendant can attack identification if it is unnecesarrily suggestive and there is substantial likelihood of misidentification.

A defendant can attack an identification as denying due process if the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification.

Question 40

Remedy for unconstitutional identification

Answer 40

The remedy for unconstitutional identifications is exclusion of the in-court identification.

BUT, Witness may make in-court identification if it has an independent source.

Question 41

Independent Source

Answer 41

A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if the in-court identi- fication has an independent source.

The most common independent source is opportunity to observe at the time of the crime (for example, the witness viewed the defendant close up for several minutes during commission of the crime).

Question 42

b. Hearing

Answer 42

Admissibility of identification evidence should be determined at a suppression hearing in the absence of the jury, but exclusion of the jury is not constitutionally required.

The government bears the burden of proving that: (1) counsel was present; (2) the accused waived counsel; or (3) there is an independent source for the in-court identification. The defendant must prove an alleged due process violation.