Fifth Amendment, Six Amendment and Miranda

Question 1

Miranda Warnings

Answer 1

1. Right to remain silent
2. Any statement made may be used as evidence
3. Has the right to the presence of a n attorney, either retained or appointed

Question 2

Miranda’s Presumption

Answer 2

All interrogations are Coercive (self incriminating) and not the product of free choice

• Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the D can truly be the product of his free choice

Question 3

Custodial interrogation

Answer 3

Meaning questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

Question 4

Miranda Framework

Answer 4

1. Custody?
2. Interrogation?
3. If Custody & Interrogation, warnings provided?
   a. If no warnings, Public- safety exception?
4. Invocation / waiver?

Question 5

Custody: Reasonable Person feel he’s in custody

Answer 5

• Where the questioning occurred (public/ incommunicado)
• Length of questioning
• What was asked/ how it was asked
• Restriction of movement (e.g., handcuffs)
• Allowed to leave when questioning was over
• Age (JDB) – anything else like age?
• Police – dominated atmosphere (compare to the techniques disfavored in Miranda)

Note: Traffic stops NOT generally custodial for Miranda

Question 6

Interrogation

Answer 6

1. Express questioning
   o direct questions
2. Functional equivalent (reasonably likely to elicit incriminating response)
   o Officer’s intent
   o Whether Officers are aware of suspect’s vulnerabilities to their tactics

Note: Does not including questions normally attending to arrest & custody

Question 7

Custody and Interrogation: Exigent Circumstances for Public Safety

Answer 7

Miranda does not apply when police officers ask questions when reasonably prompted by a concern for public safety.

Question 8

Waiver of Miranda

Answer 8

Note: Easy to find Waiver
Elements of Waiver:
1.	Knowing:
     a.	Was the suspect apprised of his rights?
2.	Intelligent:
     a.	Did suspect understand?
3.	Voluntary:
     a.	Was the statement uncoerced?

Question 9

Invocation of Protections: General Rules:

Answer 9

Right to silence or counsel must be:
- clearly, unambiguously invoked

If right to silence
o is invoked, police must “scrupulously honor” the invocation, but may re-initiate if sufficient factors are present (time lapse; different officers; different crime, different location; narrow invocation]

Right to Counsel
o Break in custody for 14 days then officers may reinitiate interrogation without Right to Counsel present
o Maryland v. Shatzer KEY CASE
• Rule: Break in custody for 14 days then officers may reinitiate interrogation without Right to Counsel present

Question 10

When is right of silence violated: Michigan v. Mosley Factors

Answer 10

• Ceased questioning immediately (aka stop interrogation)
• Different officer
• Different crime
• Different location (though same building)
• Time lapse
o Mosley was 2 hours
• “Limited invocation” (don’t want to speak about the robberies)

Question 11

6th Amendment: Confession and Right to counsel

Answer 11

“In all criminal prosecutions the accused shall enjoy the right….to have the Assistance of Counsel for his defense.”

Question 12

6th Amendment Framework

Answer 12

Attachment of the right to counsel

Critical Stage

Invocation / Waiver

Question 13

Attachment: What triggers 6th Amendment Attachment

Answer 13

• Initial Appearance
• Formal Charge
• preliminary hearing,
• indictment,
• information, or
• arraignment
• Judicial Action

Note 1: Attached for this crime (and potentially other/ same crime under BlockBurger)

Note 2:
o Arrest Warrant does not provide attachment for right to counsel

Question 14

Critical Stage: 6th Amendment

Answer 14

Look to officers’ intent: Deliberate Elicitation or fly on the wall?

Question 15

Blockburger Test: Same Crime

Answer 15

Same: If one crime has all elements of one crime, and an additional element, it is the same crime.

Not Same: If they have only some and both are missing certain elements, then not the same crime.
• If same crime, no DE: already attached
• If NOT same,
o Must re-Mirandize and rewaive right to counsel (also right to silence under 5th)

Question 16

Waiver of 6th Amendment

Answer 16

May try to obtain waiver after attachment at least in certain circumstances

[Montejo case (may only apply to montejo) “The initial appearance cannot count as a Miranda right-to-counsel invocation…because a right to counsel invocation can only be made ‘when the Δ is approached for interrogation

Note:
o Waiver of Miranda is usually considered a waiver of 6th A