Pg 31

Question 1

What are the differences between Miranda under the fifth amendment and right to counsel under the sixth amendment?

Answer 1

• 5th: triggered by a custodial interrogation. Doesn’t apply if the suspect doesn’t know it is a police agent. Applies to questions for any offense. Violations are not a poisonous tree, they are just a violation of protective rules.
  – 6th: triggered by questioning of the defendant after he has been formally charged. Offence specific, so can ask about other crimes the defendant is not charged for. Doesn’t matter if the defendant doesn’t know the person questioning him is a police agent. Violation creates a poison tree and taints evidence that the confession led to

Question 2

Why under the sixth amendment does it not matter if the defendant knows that the person questioning him is a police agent?

Answer 2

Because this is supposed to protect a lawyer’s ability to adequately represent his client, so if the lawyer isn’t there, he cannot help at a critical stage. That is why the only thing that matters is if a police agent is the one doing the questioning

Question 3

What triggers the sixth amendment?

Answer 3

Direct questioning or it’s functional equivalent (such as Christian burial speech)

Question 4

If a third-party is just “keeping his ears open“ is that considered to be an interrogation under the sixth?

Answer 4

No, it is OK to just be a plant in the room

Question 5

Once the sixth amendment right to counsel attaches, what are the things that the government can do?

Answer 5

• initiate contact as long as D was advised of his Miranda rights
  – respond to the defendant’s initiated request to meet without counsel present
  – put an undercover officer in his cell just to listen and not to question
  – contact the defendant and request that he waive his sixth right to counsel

Question 6

If the government uses a secret agent and intentionally creates a situation that will likely induce the defendant to make incriminating statements without the assistance of counsel, did they violate the defendant’s sixth amendment rights?

Answer 6

Yes

Question 7

If the government puts an informant in close proximity to the defendant but makes no effort to begin conversations about the crime charged, does that violate the defendant’s sixth amendment rights?

Answer 7

No, that is OK. The same is true for passive listening devices that just collect information but do not induce incriminating comments

Question 8

What must an informant do in order for it to be a violation of a sixth amendment right of the defendant?

Answer 8

Take some action beyond just listening. He would have to do something that was meant to deliberately elicit incriminating remarks

Question 9

If you’re unsure whether a person is a private citizen or a state agent, what are the things you should consider?

Answer 9

• if there was an explicit agreement between the police and the informant
  – the source of the informant’s motivation
  – the benefits to the informant
  – government involvement in putting information near the defendant

Question 10

What is involved in the sixth amendment right to confrontation?

Answer 10

This gives a defendant the right to confront witnesses or evidence against him when the government wants to offer testimonial evidence against the defendant in the form of a hearsay exception. The defendant has the right to confront any testimonial evidence that is offered against him and put the declaration under oath and test the statement through confrontation or cross examination. It’s OK if the defendant had the opportunity to cross examine the witness in a prior hearing.

Question 11

What should you always discuss on an essay when it comes to pretrial identification?

Answer 11

Due process

Question 12

When can identification procedures happen?

Answer 12

In court or pre-trial

Question 13

What does identification procedure mean?

Answer 13

Some sort of presentation of someone to a witness that is done by law-enforcement

Question 14

What are variables that create mistaken identifications?

Answer 14

• estimator variables like characteristics of the witness or perpetrator or circumstances of the event
  – system variables like influencing a witness

Question 15

What are things that are involved in estimator variables that can create mistaken identification?

Answer 15

These are things that the legal system has no control over. They include:
– characteristics of the witness or perpetrator
- circumstances of the event
– young children, old people, low IQ, and cognitively impaired people are not good at making accurate identifications

Question 16

What are things that often hinder identification?

Answer 16

Disguises, cross racial identification, brief exposure, far distances, bad lighting, weapons being used because it creates weapon focus, high levels of stress

Question 17

What are included in system variables that can create mistaken identification?

Answer 17

These are factors that the legal system controls. Ie: because witnesses are susceptible to suggestion, subtle comments by the police can improperly reinforce shaky identifications and create a false sense of confidence

Question 18

What are some problems that increase misidentification?

Answer 18

• showing the suspect to the witness many times
  – believing the culprit is in a lineup (if the suspect is the only person in the lineup that looks like the perpetrator, the W will pick them)

Question 19

What are some ideal situations for identification?

Answer 19

– double blind identification procedures
– informing the witness that the suspect might not be in a lineup so he doesn’t have to identify anyone if he isn’t sure
– ensuring that the suspect doesn’t stand out by anything that draws special attention to him
– having a minimum of six people in a lineup
– taking a witness confidence statement because the more confident, the more likely he is accurate
– the suspect shouldn’t be viewed more than once by the witness
– suspect should be presented sequentially instead of in a group
– procedures should be recorded
– expert testimony at trial should also explain the fallibility of eyewitness testimony