Right to Counsel, Miranda

Question 1

When does the sixth amendment right to counsel attach during criminal proceedings?

Answer 1

When charges are filed (when the suspect, becomes the defendant), regardless of whether or not the defendant is in custody, and for the remainder of the case including appeals.

Question 2

Must a defendant be incarcerated to invoke their right to an attorney?

Answer 2

No.

Question 3

What are the Miranda rights?

Answer 3

Right to remain silent, right to an attorney, and right to be informed that information given during custodial interrogation will be used against the defendant in court.

Question 4

What are some criticisms of the Miranda decision?

Answer 4

a.) allows guilty people to be let free due to procedural errors

b.) allows more rights for ‘guilty’ than victims (innocent until proven guilty?)

c.) court shouldn’t impose rules on the police

d.) Does not actually promise an attorney or rights, informs rights to defendant so that they can be waived

Question 5

When do Miranda rights apply?

Answer 5

1.) While defendant is in custody

2.) for non-physical evidence obtained during interrogation (statements, confessions, etc.)

Question 6

What is custodial interrogation?

Answer 6

When LE seize a person for the purpose of gaining information about suspected criminal activity

Question 7

What is the test for custodial interrogation?

Bonus: how does it differ from 4th amendment seizure test?

Answer 7

Totality of the circumstances test.

Would a reasonable person believe their freedom of movement to be restrained?

BONUS ANSWER: 4th amendment seizure analysis focuses on whether a reasonable person would believe that they are free to leave and ignore police presence.

Question 8

What are some of the factors used to determine whether someone is in custody for the purposes of a Miranda analysis.

Answer 8

1.) number of police

2.) whether they are out in public or in a private space

3.) whether the police has indicated they can leave

4.) the length and intensity of the questioning

5.) whether a reasonable person would believe that the stop would be brief

6.) Whether the stop would result in a custodial arrest

7.) whether there is any physical force/restraint

8.) Whether the defendant is in familiar or unfamiliar surroundings

9.) If the suspect has been permitted to leave following the questioning

Question 9

Are Miranda warnings required during a Terry stop and frisk?

Answer 9

No.

1.) not an interrogatory stop

2.) not actually in custody, short detention (which could lead to custody)

Question 10

What are the two broad categories of questioning techniques used during interrogations?

Answer 10

1.) Express questioning

2.) functional equivalent - statements or actions which are not literal questions are actions which would be known to illicit a response from the defendant

Question 11

What is an excited utterance?

Answer 11

A voluntary statement not made in response to any questioning (express or functional equivalent) – generally just due to nerves

Question 12

Are Miranda warnings required for private parties or undercover (or just unknown) government officials?

Answer 12

No. Miranda is expressly concerned with the coercive nature of government interrogations. Does not apply where the defendant is speaking to a private citizen (even acting on behalf of the government) or Undercover government actors.

Question 13

How are Miranda rights invoked?

Answer 13

Can be done either expressly (by stating you want an attorney or will not speak to police), or implicitly (by not talking)

But must be done so without AMBIGUITY (no “I think I want an attorney”)

Question 14

What happens if a defendant invokes their right to an attorney?

Answer 14

All questioning must cease questioning immediately until attorney arrives.

Question 15

What happens if a defendant invokes ONLY their right to silence?

Answer 15

Provided that the police respected the right to silence for a time, they are permitted to check in and see if defendant wants to waive.

BUT BEFORE ACTUAL WAIVER - LE must re-mirandize the defendant

Question 16

What are the two types of Miranda waivers?

Answer 16

1.) Express - statement that defendant wishes to waive those rights

2.) implied - Defendant begins speaking after being told about rights, or their behavior otherwise indicates that they wish to waive those rights

Question 17

What are the requirements for Miranda waivers?

Answer 17

MUST BE:
1.) Knowing and Intelligent

2.) Voluntary

3.) express or implied

Question 18

What is the test for knowing and intelligent waiver of Miranda rights?

Answer 18

Totality of the circumstances

Considering factors like: age, experience with the law, intelligence, any mental conditions, background, language barriers, etc.

Question 19

When a defendant invokes their Miranda rights can they later waive those rights?

Answer 19

Yes. But they have to be re-informed of their rights before proceeding

Question 20

What are the exceptions to the Miranda requirements?

Answer 20

1.) Public safety: Can immediately question a defendant but only where public safety is threatened

2.) Miranda cannot be asserted by corporations, only natural persons

3.) Only applies to incriminating statements, not physical evidence

4.) Does not apply for statements given to unidentified state agents or private citizens

Question 21

What are the two situations in which Miranda rights are read?

Answer 21

1.) Arrest

2.) During interrogation

Question 22

What is the test for whether a waiver of Miranda rights was voluntary?

Answer 22

Totality of the circumstances.

Any evidence that the defendant was accused, threatened, tricked, or cajoled (promise of cooperation leading to lighter punishment)

Question 23

What is the (two-part) test for whether a confession has violated Due process?

Answer 23

1.) Police or government official subjected the defendant to physical or phsycological coercion; AND

2.) The coercion overcame the individuals will to resist

Question 24

What are factors that the court looks at to determine whether interrogation was coercive enough to cause a confession to be involuntary?

Answer 24

1.) length of the interrogation

2.) Presence of physical or psychological abuse (i.e. using a childhood friend on the force to question defendant, or just beating them)

3.) procedural regularity

4.) presence of attorney

5.) lack of need/necessity

Question 25

Is deception during interrogation permissible?

Answer 25

Slightly depends, most forms of deception during interrogation is permissible, BUT cannot lie about:

1.) the law

2.) show fake evidence (can say that you have evidence that you don’t, but cannot show completely doctored evidence)