Statements And Confessions

Question 1

Four Bases to Exclude statements and confessions

Answer 1

1. Statements obtained by actual coercion
2. When had right to counsel
3. No Miranda Warnings
4. Fruits of Illegal Conduct

Question 2

A statement procured by actual coercion; police conduct that overbears the free will of the suspect is inadmissible:

Answer 2

for any reason

Question 3

Factors of coercion include:

Answer 3

(1) The defendant’s age, health, education, intelligence, gender, cultural background;
(2) Location, duration, physical conditions of the interrogation
(3) Number and demeanor of police officers, suspect’s experience with the criminal justice system;
(4) Deception and Trickery

Question 4

Voluntariness standard whe considering coercion is assessed based on the

Answer 4

totality of the circumstances

Question 5

Coercion can take the form of

Answer 5

physical abuse,
psychological pressure,
or threats of future harm for failing to answer questions.

Question 6

The initiation of formal adversarial process (formal charge, indictment, arraignment, or preliminary hearing) triggers

Answer 6

the Sixth Amendment right to the assistance of counsel during all critical stages of the adversarial process.

Question 7

the Sixth Amendment right to the assistance of counsel for

Answer 7

all critical stages of adversarial process

Question 8

A critical stage for 6th amend purposes

Answer 8

includes:
1. lineups,
2. preliminary hearings,
3. deliberate ellicitaiton of a statement,
4. trial

Question 9

When does a suspect become a ∆

Answer 9

When they are formally charged

Question 10

6th amendment rights for suspects v. ∆s

Answer 10

Yes for ∆’s no for supsects

Question 11

Deliberate elicition is

Answer 11

express or implied questioning

Question 12

Any statements obtained by the police from a defendant related to the crime he is formally charged with is inadmissible unless:

Answer 12

1. Lawyer is present; or,

2. Has executed a knowing or voluntary waiver

Question 13

Surreptitious questioning by a snitch or informant triggers?

Answer 13

right to counsel

Question 14

Government agents are permitted to approach the defendant to elicit a waiver of his Sixth Amendment assistance of counsel during questioning, and the waiver is effective; so long as

Answer 14

1. Knew the right he was giving up; and,

2. Did so without government coercion

Question 15

6th amendment only bars

Answer 15

questioning about the specific events related to what is formally charged

Question 16

5th amendment privilege means that

Answer 16

any person called to testify in any proceeding (trial, grand jury, preliminary hearing, administrative hearing, legislative hearing, court-martial, etc.) has an absolute privilege to refuse to testify

Question 17

When can a person refuse to testify

Answer 17

(1) He has a “real and substantial fear” that his testimony will result in self-incrimination or contribute to his criminal conviction in the United States.
(2) He asserts the privilege by refusing to testify.

Question 18

What does the 5th amendment apply to

Answer 18

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

Question 19

Waiver of 5th amendment occurs

Answer 19

Mere act of answering police or government questions

Question 20

Use/Testimonial Immunity

Answer 20

Prohibits the use of the witnesses testimony against them

Question 21

Transactional Immunity

Answer 21

Prohibits any future prosecution of the witness for the transaction that is the subject of the testimony

Question 22

Miranda Rule

Answer 22

the prosecution may not use statements obtained as the result of questioning while in custody in the case-in-chief unless, the police must advise the suspect of the rights they are giving up by answering questions

Question 23

The Miranda warning and waiver requirement is triggered by:

Answer 23

Custody: formal arrest, or a situation where a reasonable person in the suspect’s position would believe their freedom has been deprived to a degree analogous with formal arrest
+
Interrogation

Question 24

Miranda Warnings

Answer 24

(1) the right to remain silent;
(2) that anything said can be used against him in court;
(3) the right to the presence of an attorney; and
(4) if he cannot afford an attorney, one will be provided for him

Question 25

The line between a non-custody seizure and a seizure that is custody is normally identified by

Answer 25

objective indications that the seizure is not “brief”, but instead the suspect is likely going to end up at the station for booking

Question 26

Do police have to implicate miranda at a terry stop?

Answer 26

No, can interrogate

Question 27

What is interrogation?

Answer 27

Interrogation is direct questioning (anything ending with a question mark) or words or actions a reasonable officer would anticipate would result in eliciting an incriminating response

Question 28

What is covered by miranda?

Answer 28

The products of the questioning

Question 29

Limitation of Miranda Rule

Answer 29

A Miranda violation does not result in the exclusion of other evidence derived from the inadmissible statement, because a Miranda violation does not trigger the fruit of the poisonous tree doctrine

Question 30

When the primary purpose of the police questioning is to protect police or the public from an Imminent danger of serious harm:

Answer 30

The suspects answers are admissible even without the Miranda warnings or waivers

Question 31

Statements obtained from the defendant in violation of Miranda rights are admissible…

Answer 31

to impeach the defendat at trial

Question 32

If ∆ takes a stand and counters a pervious Miranda Statement

Answer 32

It can come in against him

Question 33

In order to neutralize the inherent coercion of custodial interrogation, the prosecution must prove

Answer 33

That the rights were given and then instituted a course of conduct that they were waiving the rights

Question 34

A miranda waiver may never be presumed from

Answer 34

Silence

have to invoke the right to remain silence

Question 35

If a suspect makes an unequivocal request for an attorney or wishes to remain silent, then

Answer 35

all interrogation must stop

Question 36

If a suspect invokes the right to remain silent, the police must

Answer 36

scrupulously honor the invocation

Question 37

Invoking the Miranda right to counsel. If a suspect invokes the Miranda right to counsel, questioning must cease immediately, and may not be re-initiated unless:

Answer 37

1) An attorney is present during the interrogation, or
2) Defendant re-initiates the contact with police
3) Two weeks after the suspect is returned to his normal environment police may re-initiate questioning, but must first obtain a fresh Miranda waiver

Question 38

If someone invokes their miranda rights it applies

Answer 38

To all questioning

Question 39

Can police employ a “question first, warn later” tactic?

Answer 39

Not deliberately to bypass the effect of Miranda warnings.

Question 40

Fruit of the Poisonous Tree and Confessions exists when

Answer 40

If a “but for” connection exits between a prior constitutional violation (normally an unreasonable arrest) and a suspect’s statement, the statement may be inadmissible fruit of a poisonous tree unless the government can prove an exception, even if it complies with the rules above.

Question 41

Exception to Fruit of the Poisonous Tree and Confessions exists when

Answer 41

Attenuation

Question 42

Effective attenuation will depend upon

Answer 42

how “potent” the poison was; the more severe the constitutional violation the more likely to not attenuate

Question 43

Statements in violation of Miranda can be used

Answer 43

for impeachment purposes

Question 44

Absence of a Miranda warning will not prohibit the admission of what confession?

Answer 44

voluntary confessions

Question 45

What must a ∆ do to exercise their rights under the fifth amendment after miranda warnings have been given?

Answer 45

Make an unequivocal request for an attorney

≠making an oral confession but not writing a confession

Question 46

Is entrapment a constitutional question?

Answer 46

No, entrapment is not a constitutional defense. The states are at liberty to limit its application