Statements and Confessions

Question 1

Voluntariness Approach

Due Process Clause of 5th and 14th Amendments

Answer 1

a) Statements obtained by actual coercion are involuntary and inadmissible for any purpose
b) Coercion is triggered by government conduct that overbears the free will of the suspect
i) Coercion is based on the totality of the circumstances; factors to consider include:
(1) the defendant’s age, health, education, intelligence, gender, or cultural background;
(2) the location, duration, and physical conditions of interrogation;
(3) the number and demeanor of police officers and the suspect’s experience with criminal justice system; and
(4) any deception or trickery by police

Question 2

What are the four constitutional basis to challenge the admissibility of evidence?

Answer 2

o the confession is coerced in violation of due process;
o the confession violates the privilege against compelled self-incrimination and the Miranda rule;
o the confession violates the Sixth Amendment right to counsel; or
o the confession is fruit of a poisonous tree (usually an unlawful arrest).

Question 3

Exam tip!

Answer 3

Look for police conduct during an interrogation that abuses or wears down the suspect, like threats of injury, use of physical force, or relentless psychological pressure.

Question 4

5th Amendment Privilege against Self-Incrimination

Answer 4

a) No person shall be compelled in a criminal case to be a witness against themselves
b) Absolute privilege to refuse to testify when:
i) the defendant has a real and substantial fear that the testimony will result in self-incrimination or contribute to their criminal conviction; and
ii) the defendant asserts the privilege by refusing to testify
c) Waiver: Occurs from the mere act of answering police or government questions

Question 5

5th Amendment Privilege against Self-Incrimination

Immunities

Answer 5

i) Use/Testimonial Immunity: Prohibits use of a witness’s testimony or any evidence derived from that testimony against that witness
(1) Can still prosecute the witness so long as the evidence has no connection to the testimony
ii) Transactional Immunity: Prohibits ANY future prosecution of the witness for the transaction that is the subject of the testimony

Question 6

Exam tip!

Answer 6

The PASI applies only to “testimonial” evidence and does not permit a witness to refuse to provide other evidence even if it is clearly incriminating (e.g., blood, hair, DNA, fingerprints, participation in a lineup, handwriting samples, etc.).

Question 7

Exam tip!

Answer 7

Don’t confuse the PASI with the Miranda rule. The PASI is the privilege that allows individuals to refuse to answer questions. Waiver of the privilege is normally established merely by answering the question. The Miranda rule was established because the Supreme Court concluded that merely answering questions was insufficient evidence that a suspect waived the privilege when subjected to custodial interrogation. In that situation (a Miranda warning and waiver), the Court imposed an increased burden on the government to prove waiver of the PASI.

Question 8

Miranda Rule Generally

Answer 8

a) Statements obtained as a result of custodial interrogation are inadmissible in the prosecution’s case-in-chief in the absence of Miranda warnings and a valid waiver
b) The need for Miranda warnings is triggered by custody plus interrogation

Question 9

Miranda Rule: Custody

Answer 9

Formal arrest or a situation where a reasonable person in the suspect’s position would believe that their freedom has been deprived

Question 10

Miranda Rule: Interrogation

Answer 10

Direct questioning, or other words or actions that a reasonable officer would anticipate would be likely to result in eliciting an incriminating response
(1) Spontaneous or volunteered statements do not implicate the Miranda rule (even if made while in custody) because they are not a product of questioning

Question 11

Miranda Rule: Waiver

Answer 11

i) Did the suspect make a knowing and voluntary waiver? If not, the statements violate their Miranda rights
ii) The waiver must show that the suspect understood their rights (orally or written)
(1) A waiver cannot be presumed from silence

Question 12

Miranda Rule: Invocation of Miranda Rights

Answer 12

i) If the suspect makes an unequivocal request for an attorney or states that they wish to remain silent (these requests can be made at any point during interrogation), all interrogation must stop

Question 13

Miranda Rule: Invocation of Miranda Rights

When can the police re-initiate questioning?

Answer 13

Whether police can re-initiate questioning after Miranda rights are invoked depends on what right was invoked
(1) Right to Remain Silent: Police must allow for a significant time to elapse and then obtain a new Miranda waiver

(2) Right to Counsel: Police may not resume questioning until:
(a) counsel is present;
(b) the defendant re-initiates contact with police and executes a new waiver; or
(c) at least two weeks have passed since the defendant was returned to their normal environment and police obtain a new waiver

Question 14

Exam tip!

Answer 14

Look for facts that suggest that a reasonable suspect would have concluded that they were going to jail to be booked.

Question 15

Exam tip!

Answer 15

Not every seizure is a custody, but any custody is a seizure. However, remember that an encounter can escalate from a non-custody seizure into a seizure that is custody (which happens whenever the suspect is arrested). At this point, the Miranda rule comes into effect. In other words, the key question for purposes of Miranda is whether the suspect was in custody. If they were merely seized temporarily, it will implicate the Fourth Amendment, but not the Miranda rule.

Question 16

Exam tip!

Answer 16

If the police are aware of a suspect’s vulnerability and exploit that vulnerability, that fact is imputed to the “reasonable officer” used to assess whether the statements or conduct used by the actual police qualify as questioning.

Question 17

6th Amendment right to counsel

Answer 17

a) The Sixth Amendment right to counsel is offense-specific
b) The Sixth Amendment right to counsel is triggered by the initiation of formal adversarial process (formal charges, indictment, arraignment, or preliminary hearing) and exists during all critical stages of the adversarial process (i.e., deliberate elicitation of statements, physical lineup, preliminary hearing, and trial)
c) Any statement obtained by police from the defendant related to the crime he is formally charged with is inadmissible unless:
i) his lawyer was present; or
ii) he executed a knowing and voluntary waiver

Question 18

Exam tip!

Answer 18

The only evidentiary consequence of a Miranda violation is that the statement is inadmissible in the prosecution’s case-in-chief. It can be used for impeachment, for rebuttal, for a grand jury, and the evidence it leads to will also be admissible.

Question 19

Exam tip!

Answer 19

It is useful to distinguish a “suspect” from a “defendant.” A suspect is an individual suspected by the police of having committed a crime. A suspect becomes a defendant at the initiation of the formal adversarial process—when they are formally charged and the prosecutor is now involved in the case. A “suspect” has no Sixth Amendment protection; a “defendant” does, but only for the crime for which they are a defendant. In other words, the Sixth Amendment is “offense specific.”

Question 20

Exam tip!

Answer 20

Remember, just because questioning does not implicate the Sixth Amendment right, it may still implicate Miranda or the due process voluntariness rule. Analyze each of these protections independently.