EPO 30-32 Flashcards
5th amendment guarantees what two rights?
- Right to due process (fair procedures throughout the process)
- Right against self-incrimination
What are the triggering events for a Miranda Rights Advisement?
“Custody” and “interrogation”
How can government officers interrogate a criminal suspect being held in custody without violating the suspect’s 5th amendment rights?
Before the interrogation starts, officers must give the suspect an explicitly warning that informs him of his right not not answer questions (the “right to remain silent”) and his right to talk to a lawyer before answering questions
Formula for Miranda Rights Advisement
“Custody” + “Interrogation” = Miranda Rights Advisement
When are Miranda warnings required?
Only when a suspect will be referred for criminal prosecution
Define “custody”
A “reasonable person” would believe he has been arrested or is about to be arrested:
- telling suspect “you’re under arrest”
- confronting a suspect with evidence of his guilt
- border searches involving partial body search, x-ray, body cavity, monitored bowel movement by agency policy
Define “interrogation” (what it is and what it is not)
Is:
- Express questioning
- words or conduct that officer knows or should know are likely to bring about an incriminating response
Is NOT:
- routine inquires for legitimate administrative reasons (ie. Personal history questions during booking)
- spontaneous or voluntary statements (statements that a person makes without any prompting or which are not a reasonably foreseeable response to a non-incriminating question asked by an agent) are not interrogation
When is Miranda warning not required?
Public safety (information reasonably necessary to protect public safety)
Objective test to determine if really is necessary to protect public safety
Examples:
- questions about guns, knives, bombs
- needles or sharp objects that could harm the officer during a search
- accomplices who may further criminal objectives
- kidnap victims and their condition
- quantity and nature of drugs ingested
How and what information should be included with a Miranda Rights advisement?
How = in a language understood by the suspect
What = not a specific script but the following information:
- Right to remain silent ant not required to answer questions
- Right to consult with an attorney at government expense
- Anything the suspect chooses to say can and will be used by the government in court to prove the suspect’s guilt
What are the possible outcomes after a suspect had been Mirandized?
- Suspect waives rights = must be voluntary and recommend written form. (If transfer of custody always advise status of Miranda rights)
- Right to silence = immediately terminate interrogation, by can reinstate after “cooling off” period
- Right to counsel = immediately terminate. Subject may reinitiate an interrogation at any time. LEO may reinitiate after 2 weeks and subject has returned to his normal life
What are the consequences for failing to provide Miranda warnings when required?
- Statements will be inadmissible (except for the limited purpose of impeachment)
- If intentional, the statement cannot be used for any purpose
What is a “valid” Miranda Waiver
Suspect made a free choice (voluntarily, knowingly, and intelligently) with full understanding of the rights given up
Government has the burden of proving the warning was given properly and a valid waiver was obtained
Once waiver obtained, suspect may be interrogated, and statements made used during court
What is “prompt presentment”
Federal Rule 5(a) requires an arrested person to appear before a Federal Magistrate Judge without “unnecessary delay” (6 hrs). If more than size government must justify
Explain special issues when taking a juvenile into custody.
Immediately:
- Advise juvenile of his legal rights
- Notify the Attorney General
- Notify the juvenile’s parents/guardians/custodian
- Take juvenile before a magistrate “forthwith” (expedited compared to “without unnecessary delay”)
Explain special issues when arresting a foreign national.
Must advise alien of their right to contact a consular official
- If the alien requests consular notification, then contact should occur within 24hrs and no later than 72 hours
- If alien is a citizen of a country listed in 8 CFR § 236 then a consular official must be notified wether or not the alien requests or objects to such notification
