interrogation and self-incrimination

Question 1

due process and voluntariness of confessions - 8 takeaways from an annoying gigantic slide about this topic

Answer 1

(1) Involuntary confessions violate Due Process
(2) voluntariness of a confession is evaluated under a totality of the circumstances
(3) State bears the burden of showing a confession was voluntary
(4) the D’s susceptibility to coercion is a relevant factor
(5) even if admitted, D can attempt to show the confession was unreliable to minimize its impact on the jury
(6) if D has suffered wounds while committing a crime, his apprehension about the injury and any resulting pain has been recognized to play a part in the willingness to confess
(7) Where D has received medical treatment, the voluntariness of his confession may be influenced by the effect of drugs
(8) being intoxicated is relevant in determining voluntariness

Question 2

voluntariness and Miranda - four ways voluntariness analysis is still relevant after Miranda

Answer 2

The Miranda decision is extremely important but it has not made traditional voluntariness rules obsolete.

1. Voluntariness can still be an issue in cases where the suspect is not in custody and Miranda rights are not required.
2. A confession can still be attacked on voluntariness grounds even if police give complete Miranda warnings and obtain proper waivers.
3. Traditional voluntariness concepts are employed to test whether a Miranda waiver is valid. To put it another way, Miranda waivers must be voluntary.
4. Statements taken in violation of Miranda can be used to impeach; involuntary statements cannot.

Question 3

determining whether Miranda applies

Answer 3

Miranda requires administration of the prescribed warnings if the police engage in a custodial interrogation

In other words, if the defendant is either (1) not in custody or (2) not being interrogated, then Miranda does not apply

Accordingly, two critical questions become

(1) when is a person in custody for purposes of Miranda?
(2) what constitutes an interrogation for purposes of Miranda?

Question 4

minors and Miranda

Answer 4

If the minor’s age was known to the officer at the time of police questioning or would have been objectively apparent to a reasonable officer, then consideration of the minor’s age as part of determining whether he or she was in custody is consistent with the objective nature of that test

Question 5

Miranda and traffic stops

Answer 5

Miranda requirements apply when a person is arrested even if the arrest is for a misdemeanor traffic offense

Miranda requirements do not apply to questioning during an ordinary traffic stop or during a Terry stop

Question 6

“in custody” for Miranda purposes

Answer 6

A person is “in custody” for Miranda purposes when he or she either is arrested formally or his or her freedom of movement is restricted to a degree associated with a formal arrest.

A seizure of a lesser degree does not constitute being placed in custody.

The determination of whether an individual is in custody depends on the circumstances viewed objectively not on the subjective views of either the interrogating officer or the person being questioned. The inquiry looks to how a reasonable person in the defendant’s shoes would understand the situation.

Exception: Minors – consideration of age (J.D.B.)

Question 7

what constitutes interrogation?

Answer 7

The term “interrogation” refers not only to express questioning but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Question 8

Miranda and undercover law enforcement agents

Answer 8

Miranda does not apply to undercover law enforcement agents

Question 9

precise phrasing of Miranda rights to a suspect

Answer 9

There is not exact phrasing that is required or the conveying of Miranda rights to be constitutionally acceptable instead the critical determination is whether the warnings issued reasonably convey to a suspect her rights as required by Miranda

Question 10

Miranda violation with subsequent voluntary confession

Answer 10

Exclusionary rule doesn’t exclude a confession from a subsequent voluntary and informed waiver of Miranda after there was a previous police violation of Miranda

Question 11

Seibert - Souter’s Plurality Test

Answer 11

If a two-stage custodial interrogation occurs (the first stage un-Mirandized—the second stage Mirandized), the admissibility of postwarning statements depends upon whether the Miranda warnings delivered midstream could have been effective enough to accomplish their objective under the totality of the circumstances—assessed objectively rather than subjectively

Question 12

Seibert - Kennedy’s test (concurring)

Answer 12

The Elstad rule applies unless law enforcement deliberately employs a two-step strategy. If a deliberate two-step strategy has been used, postwarning statements are inadmissible unless curative measures are taken before the postwarning statements are made. The curative measurements should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and waiver.

Question 13

whether express waiver of Miranda is required

Answer 13

While an express written or oral waiver of the right to remain silent or right to counsel is strong proof of the validity of waiver of those rights, a valid waiver can occur even where it is not express.

Valid waiver of Miranda rights can be established through the coupling a defendant understanding his rights with a defendant engaging in a course of conduct indicating waiver.

Question 14

invocation of the right to remain silent

Answer 14

To invoke her right to remain silent, an accused must do so unambiguously – the act of remaining silent in response to interrogation by law enforcement is not an invocation of a right to remain silent and thus does not require law enforcement to discontinue the interrogation

Question 15

waiver of the right to remain silent

Answer 15

Two dimensions of waiver: (1) waiver must be voluntary – the product of a free and deliberate choice not intimidation, coercion, or deception and (2) must be made with awareness of the rights being abandoned and consequences thereof

Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, the accused’s uncoerced statement establishes an implied waiver of the right to remain silent

Question 16

Resumption of questioning after invocation of the right to remain silent and right to attorney

Answer 16

Court applies heightened protections when a right to counsel is invoked in comparison with invocation of right to remain silent

Where a defendant invokes his right to counsel, a valid waiver of that right cannot be established by showing that the defendant responded to further police-initiated custodial interrogation even if the defendant has been apprised and reappraised of his Miranda rights

Instead the defendant who invokes his or her right to counsel cannot be subjected to further interrogation until

(a) counsel has been made available to the defendant; OR
(b) the accused initiates further communication, exchanges, or conversations

Question 17

ambiguous invocation of Miranda rights

Answer 17

When a suspect makes an equivocal or ambiguous request for an attorney, it is not constitutionally necessary for the police officers to clarify whether the defendant wants an attorney

If the statement is ambiguous or equivocal, officers are under no obligation to stop questioning the suspect

Question 18

impeachment exception to Miranda

Answer 18

Where a defendant testifies on her own behalf in a criminal proceeding, the prosecutor may introduce into evidence in cross-examination (not in the state’s case-in-chief) to impeach the defendant’s credibility statements made by the defendant in response to custodial interrogation that violated the requirements of the Miranda doctrine [Harris v. New York (1971)]

The impeachment exception is an exception to application of the Miranda doctrine; involuntary statements remain inadmissible for purposes of impeachment

Question 19

public safety exception to Miranda

Answer 19

Where there is an objectively reasonable need to protect the police or the public from an immediate danger, that is from an exigency requiring immediate action by the officers beyond the normal need expeditiously to solve a serious crime, then statements made by the defendant in response to custodial interrogation reasonably prompted by concern for public safety will be admissible even in the absence of Miranda warnings – (the analysis is objective and does not consider an officer’s actual subjective motivations)

Question 20

booking exception to Miranda

Answer 20

Police can ask questions of a person who is in custody that are part of a normal booking process without providing Miranda warnings. For example, the police may ask the arrestee’s

(1) name
(2) address
(3) date of birth
(4) height and
(5) weight

Question 21

Massiah doctrine

Answer 21

The Massiah Doctrine Applies where

(1) judicial proceedings have been initiated - That does not mean that the defendant has been arrested, an arrest is not enough to implicate Massiah, instead the initiation of judicial proceedings is associated with the first appearance before a judicial officer at which time a defendant is told of the formal accusation against him and restrictions are imposed on his liberty or issuance of an indictment AND
(2) the government deliberately elicits a statement from a defendant who is represented by counsel in the absence of counsel

Question 22

Sixth Amendment Right To Counsel and Offense-Specific

Answer 22

Massiah (6th Amendment right to counsel) unlike Miranda (5th Amendment right against compelled self-incrimination which includes a right to counsel) is offense specific

Offense specific equals (1) charged offenses (offenses set forth in the indictment or information) and (2) offenses that are considered the same offense as the charged offenses pursuant to the Blockburger Test (a test used in the context of double jeopardy challenges)

The Blockburger Test involves a two-step process. First, the threshold inquiry under Blockburger is whether the alleged statutory violations arise from “the same act or transaction.” Where the threshold is met, a court next examines the statutes to determine whether the crimes of which the defendant was convicted constitutes the same offense. For this second step of the analysis, where each statutory offense includes an element not contained in the other, the offenses are district

Question 23

waiver of right to counsel during interrogation after counsel has been appointed

Answer 23

The waiver protections under Massiah are the Miranda protections of the line of cases of Edwards v. Arizona, Minnick v. Mississippi, and Shatzer v. Maryland

In other words the defendant (even though he or she has already been arraigned, charged, and is represented by counsel) can be interrogated and subjected to questioning without the presence of counsel as long as he or she waives the right to counsel – however, if the defendant invokes a right to counsel in response to police interrogation, this triggers the protections of the Edwards/Minnick/Shatzer line of cases

Question 24

fifth amendment privilege of self-incrimination and compelled production of physical evidence

Answer 24

In general, the Fifth Amendment rights against compelled self-incrimination provides no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The privilege is a bar against compelling “communications” or “testimony,” but that compulsion which makes a suspect or accused the source of “real or physical evidence” does not violate it. However, this distinction does not extend to physical evidence, that is directed at eliciting responses that are essentially testimonial in nature (ex: lie detector test that measures bodily responses to assess truthfulness of statements).

Question 25

for the privilege of self incrimination to apply (four things must be true)

Answer 25

(1) by an individual (not an entity)
(2) who has been compelled
(3) for whom there exists the possibility of incrimination AND
(4) where what is being sought is testimonial