Statements and interrogation Flashcards
Test for Voluntariness
Totality if the circumstances: Weigh the Conditions of the interrogation against the characteristics of the accused. Must have police misconduct before going into characteristics of the accused, but misconduct can be taking advantage of a vulnerable suspect if vulnerabilities are known.
Condition of the interrogation factors
1) Use of force or threat of force
2) Promise of favor
3) Length of interrogation
4) Deception or trickery regarding facts (Less weight)
5) Deception regarding rights (More Weight)
6) Isolation
7) Disregard of necessities of life, such as food or sleep
8) Deprivation of counsel, if required
9 Illegal detention
10) No warnings regarding rights, if required
11) Taking advantage of a vulnerable suspect
Characteristics of the suspect factors
1) Age
2) Education
3) Mental capacity
4) Experience in the criminal justice system
5) Physical and mental state
Miranda requirements
Custody + interrogation or functional equivalent
If right to counsel invoked, then interrogation must cease until an attorney is provided or defendant initiates and waives.
If released, then police must wait 14 days before trying to talk again without attorney. If right to silence invoked, then must be scrupulously honored.
Miranda rights are not charge specific.
Do not need Miranda warning for normal stop bc no custody. However, if the stop proceeds into custody, then may be required.
Exceptions to Miranda requirement (questions not considered interrogation) are:
1) Threshold or clarifying questions
2) Routine questions and Booking procedures
3) Spontaneous questions - jailer walks up on fight and says what happened here?
4) Emergency questions - “where’s the gun?”
Miranda custody test
Would a reasonable person in the defendant’s position believe he was in custody? The test is objective and looks at the totality of the circumstances. Look for a police dominated atmosphere.
Factors to consider are:
1) Place of the interrogation
2) Time of the interrogation (day less like custody and night more like custody)
3) Indicia of arrest
4) The length of interrogation and form of the questions
5) Other factors can include if suspect seeks aid or initiates interview, lack of arrest after the interview, and age of a child if known or objectively apparent.
The subjective intent of the police to arrest is irrelevant, unless conveyed to the subject in some way. A stop in not custodial.
Miranda waiver test
Knowing, Intelligent, and voluntary. No need for it to be an express waiver. Burden of proof on prosecution to prove waiver by preponderance of the evidence.
5th Amendment requirements
For 5th priv against self incrim to appl, statement must be:
1) Self incriminating - it will subject defendant to prosecution. No available if SOL run or granted immunity.
2) Testimonial - Must be actual testimony - Voice exemplars do not count.
3) Compelled - cannot force someone to incrim themselves. However, there are exceptions like hit and run statutes.
When do 6th requirements for attorney start
When criminal proceedings begin:
1) Appearance before judicial officer;
2) Charges are read; AND
3) Personal liberty is restricted.
This usually happens at the initial appearance. Counsel must be appointed within a reasonable time after proceedings begin.
The 6th RTC is charge specific.
When must attorney be present under the 6th?
All critical stages. The test for a critical stage is:
When the defendant is physically present and requires the same protection from the prosecutorial forces against him that he needs at trial.
Known critical stages are:
1) Lineup ID
2) Deliberate elicitation
3) trial
4) arraignment
5) direct appeal
Photo ID is not a critical stage
Functional Equivalent for Miranda
words or actions on the part of the police that they knew or should have known were likely to elicit a response, looking at police intent, known susceptibilities of suspect and whether it was reasonably likely to elicit the response.
This is the test for Miranda violations (not to be confused with the 6th).
Deliberate elicitation for 6th
Looks at whether the police have intentionally created a situation in which a response is likely, (and this includes situations that they knew or should have known were likely to elicit a response).
Out of court ID rule
If the ID is a lineup, then see if counsel present or if waiver. If not, then the ID is out.
If waiver, then must be knowing, Intel, and voluntary (same as Miranda). If defective waiver, then out.
If waiver good or counsel present, then look to see if lineup was unnecessary and suggestive.
The test for unnecessary and suggestive lineup is TOC. Look to see if there are exigent circumstances (exception)
1) Very soon after crime committed (like a couple hours)
2) Witness is dying in hospital
3) Defendant has characteristics that are hard to replicate.
If no exception, then the ID is unnecessary and suggestive, but may be otherwise reliable. Look to see if it’s reliable. If so, then it’s in. If not, then it’s out.
For ID to be out, must be suggestive, unnecessary, and unreliable.
The DER applies to these IDs, but the independent source rule helps with in court ID.
Factors for lineup independent source and reliability
The same factors are used for independent source and reliability. The factors are:
1) opportunity to observe criminal at the time of crime or other event (usually during crime, but may be other acquaintance).
a) includes witness degree of attention
b) Capacity to observe, including ability and training in making IDs, unusual care in making ID.
c) The nature of event (ordinary event vs crime)
d) presence of distinctive physical features, including race of suspect.
e) conditions, including light and time for observation
2) level of certainty (whether made spontaneously or as a product of suggestion)
3) Accuracy of prior description, other pretrial IDs of suspect or another
4) Time between crime and confrontation
5) whether the excluded ID procedure was suggestive or not.
