CONFESSIONS AND PRETRIAL IDENTIFICATION

For confessions, threshold question always is whether or not the defendant’s confession was voluntary to the police.
For the self-incriminating statement to be admissible, must show:
● Voluntary nature of the statement based on the totality of the circumstances;
● Not voluntary if obtained via compulsion; mental infirmities not enough to show involuntariness without police
coercion

MIRANDA WARNING

● Right to remain silent;

● Anything said could be used against the suspect in court;
● Detainee has the right to the presence of an attorney (Fifth Am. Right to Counsel);
● If suspect cannot afford an atty, the court will appoint one for him, if so desired

Miranda warnings must be given when there is a custodial interrogation:

● Custody: Two step process
○ Freedom of Movement: whether a reasonable person under the circumstances would be free to
terminate the interrogation and leave;
○ Whether the relevant environment presents the same inherently coercive pressures as the type of
station house questioning at issue (so if questioning feels like an arrest, satisfies custody and
therefore Miranda warnings are needed)
● Interrogation: words or conduct by the police that they should know would likely elicit a response from the
detainee (routine booking qs does not count)

Suspect’s Response to Warnings Effect of Violation

1) Do Nothing: ● Evidence obtained in violation of the detainee’s

● No waiver if suspect does nothing;
● Court also will not presume an invocation of
rights to remain silent or to counsel. Police may
continue questioning until suspect does
something.
2) Waiver:
● Waiver must be knowing and voluntary;
● Ct. will look to tot. of circums.;
● If detainee chose to answer questions after
Miranda warnings, may count as waiver.
3) Invocation of the Right to Remain Silent:
● Invocation must be explicit, unambiguous &
unequivocal;
● Police must scrupulously honor req.;
● No badgering, but q for another crime is OK
4) Invocation of the Right to Counsel:
● If detainee unambiguously wishes to speak to
counsel;
● All questioning must cease (even for another
crime) until counsel is provided, UNLESS
○ Detainee subseq. waives right to
counsel (questioning can resume) OR
○ Is released from cust. interr. into normal
life & 14 d passed since release.
Counsel must be present thru/out
entire interr. until waiver.
Miranda rights is INADMISSIBLE at trial under
the exclusionary rule (see the exclusionary rule
section for more);
○ However evidence obtained in violation
of the Miranda warnings can be used
for impeachment purposes, not as
substantive evidence for guilt;
● Warnings After Questioning and Confession
(Post Confession Warnings)
○ Subsequent confession inadmissible
where detainee confesses first, then
receives warning and confesses again if
the warning was intentional to get
around Miranda; but
○ Subseq. confession admiss. if original
questioning was unplanned and the
later warning was inadvertent (very
hard to prove)
● Non-testimonial Fruits of an Unwarned
Confession:
○ Evidence is suppressed where police fail
to give Miranda warnings & during
interrog., det. gives info that leads to
nontestimonial evidence;
○ But if failure to warn was not purposeful,
evid. may get in
● Public Safety Exception: However interrogations
without Miranda warnings may be permiss. if
reas. prompted by a concern for public safety
(locating a missing gun that could harm others)

RIGHT TO COUNSEL

1
 Fifth Amendment Right to Counsel Sixth Amendment Right to Counsel

This is part of the Miranda warnings; a detainee in a More broad and extensive. Right attaches when
custodial interrogation must be given a warning of his judicial proceedings have begun (filing of formal
rights, including the right for counsel to be present. The charges).
right applies to custodial interrogations:
Pretrial:
● Custody: Two step process ● Post-indictment interr.;
○ Freedom of Movement: whether a ● Prelim. hearings to det. prob. cause to prosec.;
reasonable person under the ● Arraignment;
circumstances would be free to ● Post-charge line-up
terminate the interrogation and leave; ● No applic. for blood samples; handwrit./voice
○ Whether the relevant environment samples; prelim. hearings for prob. cause to
presents the same inherently coercive detain; photo IDs or pre-charge investig. line-
pressures as the type of station house ups
questioning at issue (so if questioning
feels like an arrest, satisfies custody and Trial
therefore Miranda warnings are needed) ● Felony trials;
● Misdemeanor trials (if incarc. is actually imposed
● Interrogation: words or acts by police that they or a suspended sent. is imposed);
should know would likely elicit a response from ● Guilty pleas
detainee (routine booking questioning does not
count) Post-Adjudication:
● Sentencing hearings;
● Appeals (as a matter of rt. & of guilty or nolo
contendere pleas);
● No application for discret. appeals; post-convict.
procs. (habeas corpus); parole & probat. revoc.

Right applies to any questioning during a custodial
interrogation to prevent the detainee from incriminating
himself (giving an involuntary confession) without the
presence of counsel
Right is offence specific; can be questioned on unrelated
& uncharged offs. w/o atty present (so long as not during
custod. interr.)
During nontrial proceedings, apply harmless error rule if
rt is denied. But if D was entitled to lawyer during trial,
failure of counsel is auto. rev. of any conviction, even
w/o showing of spec. unfairness.

Waiver must be knowing and voluntary Waiver must be knowing and voluntary; does not
require presence of counsel

PRETRIAL IDENTIFICATIONS
Included here for organization purposes, not that it has anything to do with confessions. During post-charge lineups,
there is a 6th Am. right to counsel (see supra), but not for photo IDs or when police have to take phys. evidence such
as handwriting samples of fingerprints.
● A defendant can attack an ID as denying due process if the ID is unnecessarily suggestive and there is a
substantial likelihood of misidentification
● Note pretrial IDs do not require the defendant to give testimony, so there is no risk of self-incrimination. A
defendant may not refuse to participate in a lineup like he could remain silent; no Miranda warnings