Pg 28

Question 1

What is necessary in order for a defendant to invoke his right to silence or his right to counsel?

Answer 1

It must be done so unambiguously

Question 2

If someone asks after being mirandized “Can I get someone else in here?” Is that enough to invoke your right to counsel?

Answer 2

No, it is too equivocal. The same is true if you said, “I think I would like to have a lawyer“ or “Maybe I should talk to a lawyer.“

Question 3

What must the defendant say in order to invoke his right to silence?

Answer 3

Anything that shows a desire to terminate. So it could be “don’t bother me“ or even silence in the face of repeated questioning. If the defendant indicates in any manner, at any time, prior to or during questioning, that he wishes to remain silent, the interrogation must cease

Question 4

If a defendant tries to invoke his right to silence conditionally through something like saying he will only respond to a certain interrogator, or only at a certain time, or he only wants counsel in the future, is that enough to claim the right to silence privilege?

Answer 4

Generally no

Question 5

If a suspect invokes his right to the assistance of counsel, the interrogation has to cease until when?

Answer 5

An attorney is present and the suspect has the opportunity to confer with the attorney and have him present for later

Question 6

Is it possible for someone to invoke his right to counsel by asking for a probation officer or someone else?

Answer 6

No, you can only request a lawyer. Lawyers protect legal rights, so asking for one per se invokes a suspect’s fifth amendment rights. People like probation officers are not in a position to offer legal assistance to protect the suspect’s fifth amendment rights

Question 7

What happens if a suspect invokes his right to silence but the police reinitiate contact afterward?

Answer 7

The police can go back to ask the defendant if he has changed his mind, to talk about a different offense, or different police officers can ask questions. If there is a different time, place, cop, or subject matter, that may mean that a new waiver is valid

Question 8

What is the rule for how police must honour a suspect’s right to cut off questioning?

Answer 8

It must be scrupulous.

Question 9

If a suspect has invoked his right to counsel, what happens if a surreptitious or indirect investigation is made by the police? Like the police use an agent or third-party to get a confession?

Answer 9

This is a violation of the right to counsel. When the right to counsel attaches, even if the police use a third-party or an agent, the right to counsel still applies.

Question 10

If a suspect invokes his right to counsel but then the government informant just keeps his ears open for anything that the defendant says, is that OK?

Answer 10

Yes, because it doesn’t involve an action besides just listening and it isn’t meant to elicit incriminating results. There’s no direct questioning, so there is no interrogation

Question 11

What is the 14 day unapproachability rule with respect to invoking your right to counsel?

Answer 11

Cops can’t re-initiate contact after a suspect has invoked his right to counsel for 14 days after he is returned to his normal environment. During that time period no police officer in any jurisdiction can re-initiate contact with the defendant without a lawyer or him initiating the contact. If they do, any waiver that they get is invalid and any statements are inadmissible. Even if different officers didn’t know anything about the previous invocation, they cannot initiate contact without an attorney present

Question 12

What is the rationale for the 14 day unapproachability rule after a suspect has invoked his right to counsel?

Answer 12

After that time period he is no longer considered to be isolated, but it gives him time to get advice from his attorney, friends, and family, to get reacclimated to normal life, and to shake off the coercive effects of custody.

Question 13

If a suspect is already in jail for a different crime, once he is released back into jail, is that considered to be his normal life for the 14 day unapproachability rule under the right to counsel to apply?

Answer 13

Yes

Question 14

Is it possible for police to re-interrogate a suspect after he has invoked his right to counsel if he does something that suggests a desire to open up a generalized discussion related directly to the investigation?

Answer 14

Yes, like if he asks the police if they have talked to his accomplice or if he asks what will happen to him now, but not if he is just asking routine questions like to make a phone call or to get something to eat

Question 15

What happens if there is a Miranda violation?

Answer 15

Any physical evidence from it or confession that was gotten from it is deemed to be fruit of the poisonous tree and is inadmissible

Question 16

If a teenager is suspected of burglary, and the police go to his house, and one cop is in the kitchen with his mom, and the other is with the teenager in the livingroom, and the cop tells him he is suspected of burglary and the kid confesses without a Miranda or a waiver. Then later at the station he is mirandized, he waives his rights, and he repeats his confession, is the first confession admissible?

Answer 16

No, because the teen was in custody and interrogated. But the first violation doesn’t invalidate the waiver that led to the second confession

Question 17

Can a Miranda violation be considered a poison tree?

Answer 17

NO. Real interrogations create a presumption of involuntariness, not actual involuntariness, so the rules sweeps more broadly than what is actually protected. If a confession is actually involuntary or compelled, it is a violation and the first confession is not admissible, but that doesn’t taint the admissibility of a second confession that repeats the first. Because Miranda violations do not violate any real constitutional rights since they are just rules of evidence, they aren’t entitled to fruit of the poisonous tree doctrine

Question 18

If police officers deliberately violate Miranda the first time, then they have the defendant repeat his confession after Miranda, what happens?

Answer 18

That invalidates the waiver

Question 19

If a suspect is advised of his Miranda rights during a custodial interrogation but he doesn’t unambiguously invoke his right to remain silent, what happens?

Answer 19

Any statements made can be admitted against him.

Question 20

If a mentally ill suspect waived his right to remain silent, is that upheld?

Answer 20

Yes, as long as it wasn’t the result of police coercion. It doesn’t matter that the mental illness played some part in the decision to waive. It also doesn’t matter if he didn’t understand the nature of his Miranda warnings.

Question 21

What are the two different ways that the government can force an answer out of a suspect?

Answer 21

• if they take away the risk of prosecution

– Miranda

Question 22

If a defendant was already brought to trial for an offence and before being questioned (aka double jeopardy) or he has been granted immunity, how does that force a defendant to answer questions?

Answer 22

It makes it so that the defendant’s statements cannot incriminate him in any way