The Fifth Amendment: Interrogation and Confession

Question 1

self incrimination and miranda rights are

Answer 1

different

Question 2

When would I apply the 5th Amendment? The 14th Amendment?

Answer 2

5th - Federal
14th - State

Question 3

The due process clause requires

Answer 3

‘that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice at the base of all of our civil and political institutions.’

Question 4

Where Do Confessions Lay?

14th Amendment
Due process requires that

Answer 4

a
statement obtained involuntarily from
a suspect is admissible if obtained
involuntarily

Question 5

Where Do Confessions Lay?

Ashcraft v. Tennessee (1944):

Answer 5

Ashcraft questioned for 36 hours
straight, but no other evidence to
suggest torture or coercion. “We
think such a situation . . . is so
inherently coercive that its very
existence is irreconcilable with the
possession of mental freedom”

Question 6

Where Do Confessions Lay?

14th Amendment
Spano v. New York (1959)

Answer 6

No torture – 8 hours of
interrogation/use of Bruno –
totality of the circumstances
to determine whether the
confession was the result of a
person’s will being overborne
by official pressure, fatigue
and sympathy”

Question 7

14th Amendment Spano v. NY

Test: Confession is involuntary
if under the totality of the
circumstances if

Answer 7

the government broke the will of the suspect

Question 8

5th Amendment
The right against self-incrimination protects against

Answer 8

involuntary confessions

Question 9

5th Amendment
Bright line rule - confession must be

Answer 9

free and voluntary – not extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, or by any improper influence

Question 10

Voluntariness Considerations (seen with volunariness/consent to search)

Physical v. long time in interrogation

Answer 10

Physical:
- Brown Factors

long time in interrogation room:
- 36 hours (Ashcraft)
- if less then 36 hours look at the totality of the circumstance

Question 11

Totality of the circumstance test asks

Answer 11

did they break the suspects will?

Question 12

Miranda v. Arizona (1966)

4 miranda rights

Answer 12

1. right to remain silent
2. anything you say can and will be used against you
3. right to an attorney
4. if you cant afford an attorney, one will be provided

Question 13

The Miranda Rule

Custodial Interrogation is inherently coercive.
- Consequently,

Answer 13

protective safeguards must be in
place before anyone can voluntarily give a
confession. Those safeguards are the Miranda
Warnings.

Question 14

If an individual is not read her Miranda warnings when subject to custodial interrogation, even if the statement was the result of her own free will, it

Answer 14

is not admissible against her

Question 15

Even without considering the age, defendant can still claim actual coercion – triggering

Answer 15

the voluntariness totality of the circumstances test

Question 16

Test for custody under Miranda:

2 steps

Answer 16

1. ascertain whether, in light of the objective circumstances of the interrogation,
   a reasonable person would have felt he or she was not at liberty to terminate the
   interrogation and leave
2. whether the relevant environment presents the same inherently coercive
   pressures as the type of station house questioning at issue in Miranda

Question 17

Custody for Miranda Purposes

how to ascertain whether, in light of the objective circumstances of the interrogation,
a reasonable person would have felt he or she was not at liberty to terminate the
interrogation and leave

Answer 17

1. To do consider whether the suspect felt free to leave, “courts must examine all of the
   circumstances surrounding the interrogation. Relevant factors include the location of the
   questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.” Sounds a lot like the totality of the circumstances.
2. Age is a consideration

Question 18

Custody for Miranda Purposes

if you conclude they are not in custody

Answer 18

Miranda warnings are not required, but the confession can not be the result of coercion under the14th Amendment

Question 19

Custody for Miranda Purposes

If not under Miranda, confession still needs to be

Answer 19

voluntary (totality of the circumstances test)

Question 20

Seizure Analysis

3 questions

Answer 20

1. Was the encounter consensual or involuntary (go into a Mendenhall analysis- was the defendant free to leave?)
2. if the officer use a show of authority or apply force (Hodari)?
3. If a seizure did occur, was it more like a Terry Stop or de facto arrest?

Question 21

Seizure Analysis

If a seizure did occur, was it more like a Terry Stop or de facto arrest?

Factors

Answer 21

Purpose of the stop? Was the suspect
moved or detained? How far was the suspect
moved? Purpose of the move? Is the suspect
restrained? Is he/she in a police dominated
area? How long was the detention?

Question 22

Custody Analysis - Berkemer

Answer 22

1. was subject subjected to restraints
   comparable to formal arrest? How would a
   reasonable man in the subject’s position
   have understood the situation? Would a
   reasonable man feel free to terminate the
   encounter and walk away? (if under 18, use a reasonable child the same age defendant)
2. Also, the Berkemer traffic stop looks a lot like a Terry stop. Ask yourself- does this look
   more like a Terry stop than a formal arrest?

Question 23

Why does it matter if you are in custody?

Answer 23

• Not neccarrily free to leaev, more pressure (inherently coersive enviroment) (compelled to be a witness against themself)

Question 24

In custody?
Guy in bathroom in starbucks weekly q

Answer 24

Probably in custody under miranda

Question 25

Miranda rights are so ingrained into pop culture

Answer 25

maybe makes it less important? seemingly?

Question 26

# Miranda rights If read the 4 statements

Answer 26

if read, and get confession, good to use the confession

Question 27

Voluntary test and miranda

Answer 27

do the voluntary test then miranda - all 4 statements must be read - if not the confession is thrown out

Question 28

If get physical evidence from miranda rule violation

Answer 28

- physical evidence is still admitted - not the statement though

Question 29

# Berkemer v. McCarly (1984) - 2 statements

Answer 29

statements can develop probable cause - using the 5th and 14th amendment in one continuous analysis

Question 30

During routine traffic stops are you in custody for Miranda rights?

Answer 30

looks more like a terry stop then Defacto arrest

Question 31

Miranda can apply but not always

Answer 31

- Ask if this person is in custody - don't need miranda for the 1st statement

Question 32

If not in custody for miranda can still use

Answer 32

voluntariness test, and vice versa

Question 33

So where are we at after Butler – how to assess whether someone waived their Miranda rights after having been read those rights: Butler dealt with the waiver of the right to counsel. Hence,

Answer 33

1. A waiver of the right to counsel does not have to be explicit, it is based on an inference from the actions and words of the person interrogated 2. Presumption is that a defendant did not waive his rights and the burden is on the prosecution to show that he did, but “in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated”

Question 34

Where we stand after Berghuis:

Answer 34

Waiver of Counsel and Waiver of Right to Remain Silent do not have to be explicit; may be inferred from the actions and words of the person interrogated

Question 35

Invocation of right to counsel v. to remain silent

Answer 35

- Invocation of the right to counsel must be explicit (Davis v. California) - Invocation of the right to remain silent must be explicit (Burghuis)

Question 36

# after Berghuis After Miranda warnings have been given, police can continue asking questions/interrogation until

Answer 36

the person explicitly invokes their right to an attorney or their right to remain silent

Question 37

# after Berghuis If the person does not explicitly invoke, they may implicitly waive their rights, and if they do,

Answer 37

any statement can be admitted against them.

Question 38

police reapproaching after a suspect invokes his right to counsel | 2 pts

Answer 38

- When a suspect invokes his right to counsel, police cannot reapproach without attorney present unless the suspect initiates the conversation - Hence, even if law enforcement reapproaches/initiates, reads Miranda warnings, and the suspect talks, the subsequent statement remains inadmissible

Question 39

# Edwards Basically, once suspect invokes right to counsel, he is off-limits to law enforcement untill

Answer 39

a lawyer is present or until he initiates the conversation

Question 40

Michigan v. Mosely: Once a suspect has invoked his right to remain silent:

Answer 40

1. Court looks to whether “his right to cut-off questioning was scrupulously honored" 2. Looks at timing/different or same offense/providing of additional Miranda warnings

Question 41

Waiving Right to Remain Silent/Right to Counsel

Answer 41

Can be inferred, does not have to be explicit

Question 42

Invoking Right to Remain Silent/Right to Counsel

Answer 42

must be explicit

Question 43

Enforcing the right to counsel: Once invoked, police can only reapproach if

Answer 43

(1) counsel present; OR (2) suspect initiates; OR (3) a 14-day break in custody occurred. If none of these three are met and police reapproach and obtain a confession, that confession is inadmissible

Question 44

Right to Remain silent: once invoked, courts look at whether

Answer 44

the suspect’s “right to cut-off questioning was scrupulously honored” in assessing whether a statement obtained after the invocation is admissible.

Question 45

Waiving Right to Remain Silent/Right to Counsel

Answer 45

1. Can be inferred, does not have to be explicit 2. If waived, must be knowing, intelligent, voluntary

Question 46

New York v. Quarles (1984) - Public Safety Exception for Miranda

Answer 46

Allows for pre-Miranda statements to be admitted into evidence and is not dependent on the motivation of the involved officers

Question 47

# Oregon v. Elstad (1984) Whether the exclusionary rule applies to Miranda violations? And what about fruit of the poisonous tree? 1. Miranda Violation **2. Statement #1: "Yes I was there"** 3. Miranda Warnings Given 4. Statement #2: Written Confession

Answer 47

Result of a direct Miranda violation: Government does not try to admit because exclusionary rule applies to confessions that are result of direct Miranda violations

Question 48

# Oregon v. Elstad (1984) Whether the exclusionary rule applies to Miranda violations? And what about fruit of the poisonous tree? 1. Miranda Violation 2. Statement #1: "Yes I was there" 3. Miranda Warnings Given **4. Statement #2: Written Confession**

Answer 48

Not result of a direct Miranda violation, but “fruit” of the earlier Miranda violation: Govt moves to admit; leads to issue of whether fruit of the poisonous tree doctrine applies to Miranda violations

Question 49

Oregon v. Elstad (1984) | Issue, Holding

Answer 49

Issue: Whether a confession that is a fruit of a Miranda violation is admissible after law enforcement provides Miranda warnings and obtains a waiver Holding: So long as the second statement is given voluntarily and after Miranda warnings, the earlier Miranda violation does not preclude the second statement from being admitted.

Question 50

Exclusionary rule speaks to direct violations (the but for test) – both in the 4th Amendment and the Miranda context - In the Miranda context, confessions obtained as a direct result of a Miranda violation are

Answer 50

inadmissible under the Miranda exclusionary rule. This is uncontested in Elstad because of the holding of Miranda v. Arizona

Question 51

Fruit of the Poisonous Tree Doctrine (think Wong Sun) – evidence that may not be found directly after a violation, but is tainted by the investigation - Based on Elstad, the initial confession obtained as a direct result of the Miranda violation will be

Answer 51

excluded (exclusionary rule), but subsequent statements will not so long as Miranda warnings are given and the second statement is voluntary

Question 52

Miranda warnings are not constitutional – they are judicially created prophylactic (just let you know you have the right) procedures designed to protect the Fifth Amendment incrimination against self-incrimination\ - Because they’re not constitutional,

Answer 52

there are less protections afforded to them

Question 53

Oregon v. Elstad (1984) rule

Answer 53

ruit of the poisoness tree doctrine does not preclude the admission of statements made after a Miranda violation so long as subsequent Miranda warnings are given and the second statement is voluntary

Question 54

can police get a statement without Mirandizing, then Mirandize and then only introduce the second statement.

Answer 54

Yes

Question 55

5th amenedment relation to miranda warnings

Answer 55

cant be witness against self

Question 56

Oregon v. Elstad (1984) - Is second statement fruit of the 1st statement ? - No - Then,

Answer 56

Statement 2 which is exceedingly similar to statements come in

Question 57

Miranda is not a constitutional rule except in

Answer 57

Dickerson it is

Question 58

1. MIranda Violation 2. Post Selbert - was violation intentional? | Yes and No

Answer 58

Yes: - Statement 2 inadmissible No: - Statement 2 Admissible under Elstad

Question 59

# United States v. Patane (2004) 1. Miranda Violation **2."The Glock is in my bedroom on a shelf"** 3. Police find the Gun

Answer 59

Inadmissible under exclusionary rule (direct miranda violation)

Question 60

# United States v. Patane (2004) 1. Miranda Violation 2. "The Glock is in my bedroom on a shelf" **3. Police find the Gun**

Answer 60

The introduction of the gun is the issue here - it's the physical fruit of the Miranda violation

Question 61

lstad – "fruits of the poisonous tree doctrine" does not apply to

Answer 61

Miranda violations

Question 62

Miranda warnings are Different from coerced confessions where fruit of the tree doctrine would apply

Answer 62

coerced confessions are a constitutional violation

Question 63

Miranda is prophylactic, not a constitutional right, meaning

Answer 63

that it is preventative

Question 64

With the public safety exception to miranda look at both

Answer 64

danger of the person and of the evidence

Question 65

torture and physical evidence

Answer 65

evidence does not come in (flow chart

Question 66

seizure is what amendment

Answer 66

4th

Question 67

Someone is put into custody look at

Answer 67

1. is it a defacto arrest? 2. Probable Cause? 3. Not an issue

Question 68

Custodial interrogation is so inherently coercive, suspects must be

Answer 68

told they have a right to counsel prior to any interrogation or confession being used against them (if they knowingly waive the right and answer (Miranda))

Question 69

When in custody, invocation of right to counsel must be

Answer 69

explicit (Davis/Butler)

Question 70

When in custody, when right to counsel is invoked, police cannot

Answer 70

“try again” absent a 14 day break in custody (Edwards-Shatzer) + Miranda

Question 71

If directly asked a question:

Answer 71

interrogation

Question 72

If indirectly spoken to:

Answer 72

Look at the suspects POV (innes)

Question 73

Davis case: I think i want a lawyer

Answer 73

not enough

Question 74

miranda right to consul and 6th amenment right to counsel is

Answer 74

different