WAIVER

Question 1

Rule

Answer 1

can be Express or Implied (and)

ii. must be Knowingly, Voluntarily and Intelligently waived

Question 2

K, V, I

Answer 2

whether express or implied, must have all three

Question 3

Miranda Rule

Answer 3

A ∆ may waive his rights provided that the waiver is made voluntarily, knowingly and intelligently

Question 4

NC v Butler ***

Answer 4

Silence + Understanding of Rights + A Course of Conduct indicating waiver.

Question 5

Rule: A course of conduct indicating waiver can amount to an implied waiver of Miranda; does not need to be an express waiver.

Answer 5

NC v. Butler rule

Question 6

Was waiver voluntary?

Answer 6

The product of a free & deliberate choice and not product of intimidation, coercion or deception.”

Question 7

Were rights knowingly and intelligently waived?

Answer 7

Know Nature of Rights & Consequences of Abandoning them.

Question 8

Oregon v. Elstad

Answer 8

if not mirandized but uncoercive, then brought to station and mirandized and DO WAIVE….then the second will be allowed.
Rule: a suspect who has once responded to unwarned YET UNCOERCIVE questioning is not thereby disabled from waiving his rights and confessing after he has been mirandized.

Question 9

Elstad-

Should police have supplemented by telling him his earlier statement was inadmissible?

Answer 9

A requirement of additional, clarificatory warning was neither practicable nor constitutionally necessary.

Question 10

Moran v. Burbine

Answer 10

Police failure to tell ∆ that lawyer is there does not invalidate the waiver (bc not overbearing his will)

Question 11

Commonwealth v. Mavredakis

state protections

Answer 11

(information re: immediately available attorney does have a bearing on suspects ability to knowingly and intelligently waive his constitutuional rights)

Question 12

Held:undisclosed info did not deprive him of the knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.

Answer 12

Moran v. Burbine

Question 13

Waiver is not crime specific→ if waive then in Lion’s Den

Answer 13

Colorado v. Spring

Question 14

Colorado v. Spring

Answer 14

Held: √ no awareness requirement in constitution to inform him of full possible scope of questioning

Question 15

Berghuis v. Thompkins (5:4)

Answer 15

Expanded circumstance of what is an implied waiver
Rule: Where a defendant does not invoke his right to remain silent after fully understanding his Miranda rights, he implicitly waives his Miranda rights by making a voluntary statement to police

Question 16

his answer “yes” that he prayed for forgiveness

Answer 16

= a Course of Conduct indicating waiver of right to remain silent. (Berghius)

Question 17

Sotomayer dissent in Berghuis

Answer 17

←minimal responses to questioning (prior to the incriminating statement) do not amount to a course of conduct indicating waiver.
←The Court’s holding that police may interrogate a suspect until he unambiguously invokes his right to silence by speaking is an unwarranted extension of prior case law and provides the wrong standard. A more appropriate rule would be that police should scrupulously honor the suspect’s rights.