Kaplan Pgs 397-405 Statements And Confessions

Question 1

What is an involuntary statement?

Answer 1

When police subject the suspect to coercive conduct that is sufficient to overcome his will, given his particular vulnerabilities and the conditions of the interrogation. This is subjective and done on a case by case basis

Question 2

If a statement is made by a suspect of average intelligence that is comfortable in his surroundings, is that likely to be considered voluntary or involuntary?

Answer 2

Voluntary

Question 3

What are the four bases to exclude statements and confessions?

Answer 3

• voluntariness approach
  – right to counsel approach
  – Miranda standard
  – fruits of illegal conduct

Question 4

What are the constitutional bases for each of these approaches to exclude a statement or confession?
- voluntariness approach
– right to counsel approach
– Miranda standard
– fruits of illegal conduct

Answer 4

• voluntariness approach: due process from the fifth and 14th
  – right to counsel approach: Sixth right to
  – Miranda standard: fifth privilege against self-incrimination
  – fruits of illegal conduct: fourth exclusionary rule

Question 5

What does the voluntariness approach say for statements?

Answer 5

In order to be admissible a statement must be voluntarily made based on the totality of the circumstances

Question 6

What is involved in the right to counsel approach to exclude statements and confessions?

Answer 6

If a statement is made during a critical stage of a criminal proceeding without an attorney present or a waiver, it is inadmissible

Question 7

What is involved in the Miranda standard as a base to exclude statements and confessions?

Answer 7

If a statement is made without a Miranda warning during a custodial interrogation it is inadmissible

Question 8

What is involved in the fruits of illegal conduct basis to exclude statements and confessions?

Answer 8

Even voluntary statements that are obtained as fruit of a prior illegal search or seizure is inadmissible

Question 9

What are factors to determine if a statement was coerced?

Answer 9

• age
  – sex
  – education
  – mental and physical health
  – Physical abuse
• death threats
  – promises of leniency

Question 10

Do police have broad reign to trick and deceive a defendant during interrogation?

Answer 10

Yes

Question 11

Although the police have broad reign to trick and deceive a defendant during interrogation, what are the things they cannot do?

Answer 11

Offer false promises of dropping charges in order to elicit a confession

Question 12

If a defendant’s confession is coerced, can it be used at trial for direct evidence or impeachment?

Answer 12

No

Question 13

If a confession was admitted at trial that ended up being involuntary, what happens?

Answer 13

It doesn’t result in automatic reversal, but instead the harmless error rule is applied. The government must prove beyond a reasonable doubt that the confession being entered into evidence did not contribute to the verdict of guilty

Question 14

Once a suspect has invoked his sixth amendment right to counsel, can police continue to question him about other offences even if they are factually related to the charged crime?

Answer 14

Yes, because the sixth amendment is offence specific

Question 15

If a suspect has invoked his sixth amendment right to counsel, when must counsel be present?

Answer 15

At all questioning until the accused waives the right

Question 16

When someone asserts their sixth amendment right to counsel, what is not allowed?

Answer 16

Police deliberately eliciting incriminating statements from the defendant without his attorney present

Question 17

If a police officer secretly records a suspect’s conversations while he’s out on bail, does that violate his right to counsel?

Answer 17

Yes

Question 18

Why is passive listening by a cell mate informant not a violation of the right to counsel?

Answer 18

Because it must be shown that the police and their informant took some action beyond just listening that was designed to deliberately elicit incriminating remarks

Question 19

What are the two things that can eliminate the privilege against self-incrimination?

Answer 19

If use or transactional immunity has been granted to the defendant

Question 20

Can immunized testimony be used to impeach a defendant?

Answer 20

No, but it can be used to prove perjury

Question 21

What does the Miranda test focus on?

Answer 21

The susceptibility of the suspect. If there are no objective indications of susceptibility, such as youth, then the police can talk in the presence of the suspect as long as they are not directly questioning him

Question 22

What is “custody“ under Miranda?

Answer 22

When the suspect has been significantly deprived of his freedom of movement and cannot leave

Question 23

What are objective factors to determine if a suspect is in custody for Miranda purposes?

Answer 23

• when and where it happened
  – how long it lasted
  – how many police officers were present
  – what the officers and the defendant said and did
  – the presence of physical restraints or its equivalent like a drawn weapon or a guard at the door
  – if the defendant was being questioned as a suspect or a witness

Question 24

Do subjective factors matter in determining if custody has occurred for Miranda?

Answer 24

No all that matters is whether the suspect experienced a significant deprivation of freedom of movement from an objective perspective

Question 25

Is a Terry stop considered to be custodial so that Miranda warnings are required?

Answer 25

No

Question 26

If a taxpayer is being interrogated during a criminal investigation by the IRS, is that considered to be custodial interrogation?

Answer 26

No

Question 27

What are things that Miranda does not apply to?

Answer 27

Questions by the police regarding age, date of birth, height, weight, etc.

Question 28

If the police question a D about basic things about himself like his age, height, or birthday, and the response comes back slurred, is that admissible in a drunk driving case?

Answer 28

Yes

Question 29

When could the right to receive a Miranda warning be outweighed and thus Miranda would not be required?

Answer 29

If there is an immediate threat to the public safety

Question 30

If a statement is gotten by police in violation of Miranda, what happens?

Answer 30

It cannot be used in the prosecution’s case in chief, but it can be used to impeach the defendant’s testimony at trial

Question 31

Does a Miranda waiver have to be in writing?

Answer 31

No, but it does have to be voluntary, knowing, and intelligent

Question 32

Can a Miranda waiver be express or implied?

Answer 32

Yes, but it can’t usually be presumed from the defendant’s silence

Question 33

If someone that is mentally disabled waives his Miranda warnings, when would the waiver not can be considered proper?

Answer 33

If the disability was such that the defendant couldn’t understand the meaning of the warnings

Question 34

What are the two things that bring an interrogation to an immediate halt?

Answer 34

• if the defendant requests an attorney
  – if the defendant states that he wishes to remain silent

Question 35

If a defendant wishes to terminate an interrogation and explicitly says so, what is the rule?

Answer 35

That request must be scrupulously honoured

Question 36

If a defendant wishes to terminate an interrogation and the police do so, when can they resume question?

Answer 36

After a significant time has elapsed and they have given fresh Miranda warnings

Question 37

Once a suspect has been released from interrogative custody, how long do the police have to wait to speak to him if he has invoked his Miranda rights to counsel?

Answer 37

14 days

Question 38

Does a suspect invoke his right to remain silent by just not answering questions?

Answer 38

No, he must do this unambiguously

Question 39

Do Miranda warnings need to be repeated if there is a short break in interrogation or a new police agent begins questioning?

Answer 39

No

Question 40

When will a lineup, show up, or photo identification be considered inadmissible?

Answer 40

If it violates due process because it was unnecessarily suggestive and likely to produce an irreparable mistaken identification

Question 41

Describe an example of when a due process violation would apply for a pre-indictment intent identification?

Answer 41

If a defendant was 6 inches taller than all the other suspects in the lineup, the only one wearing clothes similar to the thief, and the only one to appear in a second lineup