Statements and Confessions Flashcards
Right to Counsel Approach
Explained - Constitutional basis/trigger/test
Deliberate elicitation of a statement from a defendant is inadmissible unless counsel was present or police obtained a knowing and voluntary waiver.
6th Amendment right to counsel
Triggered - direct or surreptitious police questioning of defendant without lawyer present or a waiver.
Was counsel Present? Did defendant waive?
Voluntariness Approach
Explanation-Constitutional Basis/Trigger/Test
Statements obtained by coercion are involuntary
inadmissible for any purpose.
Violates Due Process of 5th and 14th Amendments
Triggered - government conduct overbears free will of suspect.
Totality of the Circumstances Test
Miranda Rule
Explained - Constitutional basis/trigger/test
Statements obtained from custodial interrogation
inadmissible in the prosecution ‘case in chief’ absent of Miranda warning and valid waiver.
5th Amendment privilege against self incrimination.
Triggered by Custody + Interrogation
Did suspect make a knowing and voluntary waiver?
If not, statements violate miranda.
Fruits of Illegal Conduct
Explanation - Constitutional basis/trigger/test
Statements that comply with other tests may be tainted if the are the but for consequence of a predicate constitutional violation.
Fruits of the poison tree doctrine
Triggered by a but-for link between constitutional violation and police obtaining the statement.
Is the statement the product of the prior violation?
If so, can the government prove that it is sufficiently attenuated from the poison tree.
A statement is obtained by actual coercion if…
questioning overbears free will of suspect.
statements not admitted for any purpose - including impeachment.
Standard - totality of the circumstances test.
Totality of the Circumstances Test for Voluntariness
factors
Age, Health, Education, intelligence, gender, and cultural background.
Location, Duration, and physical conditions of interrogation.
Number and demeanor of police,
suspects experience with the criminal justice system.
Deception and trickery involved.
Exceptions for Actually Coerced Statements
There are no exceptions for actually coerced statements.
No requirements to be in custody when the statement is made.
Massiah Rule
initiation of formal adversarial process triggers
6th Amendment right to counsel
during all critical states of the adversarial process.
Once formal charges, indictment, arraignment, or preliminary hearing is brought, the initiation of formal adversarial process has begun.
Critical Stages entitled to the right to counsel
The deliberate eliciting of statements from a DEFENDANT
(suspect is not a defendant)
physical lineups
trial
Suspect vs Defendant
Suspect is suspected of having committed a crime.
Has no 6th Amendment protection.
Becomes a Defendant after formal adversarial process begun
is entitled to 6th Amendment right to counsel.
Deliberate Elicitation
Supreme Court held
deliberate elicitation of a pre-trial statement
from a defendant
is a critical stage triggering the right to assistance of counsel.
Includes any express or implied questioning.
Statements RELATED TO A CRIME FORMALLY CHARGED
are inadmissible unless
1. a lawyer was present or
2. executed a knowing and voluntary waiver of right to counsel.
Surreptitious Questioning of a Defendant
Responses are inadmissible
made in the absence of counsel
valid knowing and voluntary waiver cannot be obtained.
Government agents requesting a waiver of 6th amendment from a defendant
Such waivers are valid if D knows the rights he is giving up.
Applicability of 6th Amendment Protections
Shields the defendant from questioning on the OFFENSE CHARGED
questions on other offenses factually related to charged offense
will not implicate the 6th amendment.
5th Amendment Privilege against self incrimination
absolute right to refuse to testify when
REAL and SUBSTANTIAL fear testimony will result in self incrimination or contribute to his criminal conviction IN THE US.
Does not protect against foreign prosecution.
How to waive 5th Amendment Privilege against self incrimination
By providing testimony, waiver is presumed.
There is no need to advise of rights unless Miranda is triggered.
How to supplant PASI
Use/Testimonial Immunity
Transactional Immunity
Use Immunity
Prohibits the use of testimony, or evidence derived, against witness.
fully supplants PASI and witness must testify.
Subsequent prosecution is not barred so long as the evidence has no connection to testimony
Transactional Immunity
prohibits future prosecution for the transaction that is subject of testimony regardless of where the evidence came from.
Miranda Rule Rationale
custodial interrogation produces an inherent coercion.
to neutralize the coercive nature of interrogation
Police must restore confidence that
suspect statements are product of free will.
Miranda Rights - list
Right to remain silent
Anything said can be used against him in court
Right to the presence of an attorney
if he cannot afford an attorney, one will be provided for him
What triggers Miranda requirement
Custody + Interrogation
Custody - Defined
reasonable person in suspects position
would believe their freedom has been deprived
to a degree analogous to arrest.
Requires an OBJECTIVE INDICATION that police are initiating a criminal process
Is a Terry Stop Custody?
No.
brief investigative seizure.
Because it is a brief encounter the police may question an individual without implicating the Miranda Rule.
Interrogation - Defined
Direct questioning.
Words or actions a reasonable OFFICER would
anticipate will result in incriminating response.
Interrogation focusses on the reasonable officer.
Custody focusses on the reasonable suspect
Spontaneous or volunteered statements
Do not implicate the Miranda Rule
not the product of questioning.
Limitations and exceptions to Miranda Rule
Violation does not result in exclusion of evidence derived from inadmissible statement. Does not trigger poison tree doctrine.
Where police PRIMARY purpose for questioning is protecting themselves or the public from imminent danger of harm suspect statements are admissible even without Miranda warning and waiver.
Statements obtained in violation of Miranda are admissible for impeachment.
Waiver of Miranda
must execute a knowing and voluntary waiver
Suspect must understand and engage in a course of conduct indicating a voluntary waiver.
Need not be warned of possible charges that could result.
Waiver never presumed from silence
Re-Initiation of question after suspect invoked right to remain silent
Police must scrupulously honor a suspects invoking of right to remain silent.
must allow a significant period of time to elapse and
obtain a new miranda waiver to resume
Re-initiation after suspect has invoked right to counsel
Questioning must cease
may not be re-initiated unless attorney is present or
D re-initiates contact and executes a fresh miranda waiver
2 weeks after suspect has returned to his normal environment police may re-initiate questioning after obtaining a fresh miranda waiver.
Specificity of Miranda Waiver and re-initiation rules
Invocation of either right is not offense specific
re-initiation applies to any offense they seek to question the suspect about.
Effect of miranda violation on subsequent confessions
Miranda violation does not trigger poison tree doctrine
does not taint subsequent statements made after valid miranda waiver
even if it repeats the same confession.
Police may not elicit a confession from a suspect
then obtain a waiver
and have suspect repeat the prior confession.
The result is inadmissibility of both confessions
Fruit of the Poisonous tree and suspect statements
If a but for connection exists between a prior constitutional violation (ie unlawful arrest) and a suspects statement
statement may be inadmissible as fruit of the poison tree absent exception.
Attenuation being the most common exception and depends on how potent the poison was. The more flagrant the constitutional violation, the harder to attenuate.
Likely sufficient Attenuation example
Police arrest is unreasonable for failure to obtain a warrant
Police had probable cause.
normally be dissipated by a valid miranda waiver so long as the statement is not elicited immediately following the arrest
Likely insufficient attenuation example
Police arrest is unreasonable because police did not have probable cause.
Taint is more difficult to dissipate and a miranda waiver is likely insufficient.
Identifications
Due process applies to identifications
if procedure was UNNECESSARILY SUGGESTIVE
and
CREATED AN IRREPARABLE RISK OF MISTAKEN IDENTIFICATION
procedure violates due process and is inadmissible.
Factors determining if procedure was unnecessarily suggestive resulting in an unreliable identification
opportunity to view the criminal scene
witness degree of attention
accuracy of description
certainty of the witness
time between crime and identification
Necessity and Inherently suggestive procedures
unnecessarily suggestive identification procedure
necessary under the circumstances
does not violate due process.
Right to Counsel and Identifications
admissibility and exception
applies to corporeal identifications AFTER
formal adversarial process has begun.
corporeal lineup in violation of the 6th amendment
are per se inadmissible.
Witness is prohibited a subsequent in court identification
without CLEAR AND CONVINCING evidence
identification is INDEPENDENT from the inadmissible out of court identification.
Suspect invokes right to counsel or right to remain silent.
What effect on waiver?
Right to remain silent.
Scrupulously respect right - re-initiate after significant period and fresh waiver is obtained.
Right to counsel
questioning ceases immediately. No re-initiating without presence of attorney or defendant re-initiates contact with police and executes fresh waiver. Police must wait 2 weeks after suspect returned to normal environment.
