Statements and Confessions

Question 0

Right to Counsel Approach

Explained - Constitutional basis/trigger/test

Answer 0

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?

Question 1

Voluntariness Approach

Explanation-Constitutional Basis/Trigger/Test

Answer 1

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

Question 2

Miranda Rule

Explained - Constitutional basis/trigger/test

Answer 2

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.

Question 3

Fruits of Illegal Conduct

Explanation - Constitutional basis/trigger/test

Answer 3

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.

Question 4

A statement is obtained by actual coercion if…

Answer 4

questioning overbears free will of suspect.

statements not admitted for any purpose - including impeachment.

Standard - totality of the circumstances test.

Question 5

Totality of the Circumstances Test for Voluntariness

factors

Answer 5

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.

Question 6

Exceptions for Actually Coerced Statements

Answer 6

There are no exceptions for actually coerced statements.

No requirements to be in custody when the statement is made.

Question 7

Massiah Rule

Answer 7

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.

Question 8

Critical Stages entitled to the right to counsel

Answer 8

The deliberate eliciting of statements from a DEFENDANT
(suspect is not a defendant)

physical lineups

trial

Question 9

Suspect vs Defendant

Answer 9

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.

Question 10

Deliberate Elicitation

Answer 10

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.

Question 11

Surreptitious Questioning of a Defendant

Answer 11

Responses are inadmissible
made in the absence of counsel
valid knowing and voluntary waiver cannot be obtained.

Question 12

Government agents requesting a waiver of 6th amendment from a defendant

Answer 12

Such waivers are valid if D knows the rights he is giving up.

Question 13

Applicability of 6th Amendment Protections

Answer 13

Shields the defendant from questioning on the OFFENSE CHARGED

questions on other offenses factually related to charged offense
will not implicate the 6th amendment.

Question 14

5th Amendment Privilege against self incrimination

Answer 14

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.

Question 15

How to waive 5th Amendment Privilege against self incrimination

Answer 15

By providing testimony, waiver is presumed.

There is no need to advise of rights unless Miranda is triggered.

Question 16

How to supplant PASI

Answer 16

Use/Testimonial Immunity

Transactional Immunity

Question 17

Use Immunity

Answer 17

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

Question 18

Transactional Immunity

Answer 18

prohibits future prosecution for the transaction that is subject of testimony regardless of where the evidence came from.

Question 19

Miranda Rule Rationale

Answer 19

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.

Question 20

Miranda Rights - list

Answer 20

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

Question 21

What triggers Miranda requirement

Answer 21

Custody + Interrogation

Question 22

Custody - Defined

Answer 22

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

Question 23

Is a Terry Stop Custody?

Answer 23

No.
brief investigative seizure.
Because it is a brief encounter the police may question an individual without implicating the Miranda Rule.

Question 24

Interrogation - Defined

Answer 24

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

Question 25

Spontaneous or volunteered statements

Answer 25

Do not implicate the Miranda Rule

not the product of questioning.

Question 26

Limitations and exceptions to Miranda Rule

Answer 26

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.

Question 27

Waiver of Miranda

Answer 27

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

Question 28

Re-Initiation of question after suspect invoked right to remain silent

Answer 28

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

Question 29

Re-initiation after suspect has invoked right to counsel

Answer 29

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.

Question 30

Specificity of Miranda Waiver and re-initiation rules

Answer 30

Invocation of either right is not offense specific

re-initiation applies to any offense they seek to question the suspect about.

Question 31

Effect of miranda violation on subsequent confessions

Answer 31

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

Question 32

Fruit of the Poisonous tree and suspect statements

Answer 32

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.

Question 33

Likely sufficient Attenuation example

Answer 33

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

Question 34

Likely insufficient attenuation example

Answer 34

Police arrest is unreasonable because police did not have probable cause.

Taint is more difficult to dissipate and a miranda waiver is likely insufficient.

Question 35

Identifications

Answer 35

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.

Question 36

Factors determining if procedure was unnecessarily suggestive resulting in an unreliable identification

Answer 36

opportunity to view the criminal scene

witness degree of attention

accuracy of description

certainty of the witness

time between crime and identification

Question 37

Necessity and Inherently suggestive procedures

Answer 37

unnecessarily suggestive identification procedure
necessary under the circumstances
does not violate due process.

Question 38

Right to Counsel and Identifications

admissibility and exception

Answer 38

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.

Question 39

Suspect invokes right to counsel or right to remain silent.

What effect on waiver?

Answer 39

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.