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SELF-INCRIMINATION AND CONFESSIONS
NOTE: THE PURPOSE OF THIS OUTLINE IS TO ORGANIZE THE CASES SO THAT ONE CAN QUICKLY UNDERSTAND THE RELEVANCE OF EACH CASE TO THE COURSE. NO ATTEMPT IS MADE IN THIS OVERVIEW TO ADDRESS EVERY CONCEPT THAT MUST BE STUDIED. BE SURE TO READ THE ENTIRE CASEBOOK AND/OR OTHER MATERIALS TO GAIN A FULL UNDERSTANDING OF ALL CONCEPTS. I. The Privilege Against Compelled Self-Incrimination. A. The Policies of the Privilege. 1. Throughout history, the Supreme Court has been unwilling to re-examine or consider constitutional change to the Fifth Amendment privilege against self-incrimination. However, the court has freely extended its application, even though those most often benefitting are the criminals. The court has rejected suggestions for change despite the occasional unfortunate results stemming from its application. The Need to Examine Policies. 2. The following are some of the justifications espoused for the privilege, followed by the corresponding criticism. a. It protects the innocent. The Supreme Court has renounced this rationale. There is no proof the innocent are protected, and the jury may, in fact, look unfavorably on a defendant who does not take the stand to testify. b. It protects the cruel trilemma [three choices] of selfaccusation, perjury or contempt. This problem exists for any witness, not just those self-incrimination witnesses. It is not cruel to make a witness have the option of perjuring himself. c. It deters perjury. Perjury prevails in spite of the privilege. d. It protects against unreliable coerced statements. There is no need to exclude compelled evidence that can be corroborated. The testimony by the defense will usually be cast in a favorable light, will not always be self-deprecatory, and is generally more reliable than statements obtained by police interrogation. e. It promotes an accusatorial system of justice rather than an inquisitorial system. This statement is merely a restatement of the privilege itself. f. It deters improper police practices that result in eliciting statements by inhumane treatment and abuses. The privilege is unnecessary to guard against torture, since protection is afforded by the due process clause. Court testimony is protected by the judicial process. g. It contributes to a fair "state-individual" balance by leaving a person alone until good cause exists to disturb him, and requiring the government to have the burden of proof against the person. Probable cause requirements provide adequate protection against unwarranted governmental disturbance. There is no basis for assuming that the government has the power to extract evidence of guilt from the people. There are different rules and burdens of proof between the state and a defendant during a criminal trial. The privilege is not the best method to achieve a fair balance between state and individual. Since the government can compel certain physical evidence from the defendant that is not protected by the privilege, testimony should not be protected from compulsion. h. It preserves official morality which would suffer if self disclosure were a source of proof. If this rationale were extended to the station house, most police questioning would not be allowed. It is debatable
(4) It may not be asserted because of concern of incrimination in a foreign country. Applicability to Non-Criminal Cases: Boyd v. civil suits that require far more private information. B. the witness would be presented with the choice of remaining silent and face imprisonment. Thus. Lelkowitz v. 1. Criminal Cases.whether the privilege developed historically from the English judicial system becoming morally unacceptable. or tell a lie and face imprisonment for perjury. United States and Counselman v. (a) A civil penalty statute was held not quasicriminal. (b) A proceeding to determine whether one should be committed for mental treatment was held not criminal in nature. Invoking the Privilege in a Civil Case to Prevent Use of Statements in a Criminal Case. (b) However. A state may not compel testimony by use of economic coercion. prisoners. and the Fourth Amendment that protects privacy only with respect to unreasonable intrusions. such as threatening its employees or agents with loss of employment or contracts in a non-criminal proceeding.A Chart to Assist Analysis. if it is merely a "what if" scenario rather than a true situation of international cooperation prosecution. Cooperating Governments. a. Any such problems are dealt with by applying the First Amendment. a very limited "cooperation" exception to the privilege's inapplicability to foreign prosecutions may exist. since these proceedings may be characterized as criminal in nature. (3) It has been asserted in bankruptcy proceedings and those involving investigations into wrongdoing by public workers. This is a cruel trilemma.O. 2. where the testimony could be used in subsequent criminal prosecutions. such as probation revocation or private retribution. Detention for "Treatment". What Is Compulsion? 1. Titrley. as well as in any proceeding where the statements might incriminate one in future criminal proceedings. Turley. (a) If the United States were to cooperate with a foreign nation resulting in the matter also becoming a domestic prosecution. religion or association. United States v. the application of the privilege will be rejected. It is justified based upon respect for an individual's privacy. Holding a person in contempt of court for not testifying is the classic form of compulsion and is prohibited. Other State-Imposed Sanctions. tell the truth and face imprisonment. j. C. Privacy is only a rationale that should be used for crimes involving belief or association. Proceedings in Which the Privilege Applies. L. Scope of the Privilege. It is justified based upon the First Amendment protection against government intrusion concerning political and religious beliefs. or lawyers. Civil Penalties: United States v. a. . (2) It may not be asserted in matters not criminal in nature. If this were true. not the typical criminal investigations and prosecution. Contempt. Lefkowitz v. Ward. Use of the Contempt Power. Hitchcock. If it were not prohibited. The supposed justification would apply only to free speech. The privilege may be asserted in criminal proceedings. a. i. Balsys. testimony in a deportation proceeding was not subject to the privilege where the testimony might be used in prosecution in foreign country. (1) It may be asserted in non-criminal proceedings such as a forfeiture proceeding and grand jury criminal investigations. it would be inconsistent with immunity statutes that require even private testimony.
J. A state may not compel testimony during a bar investigation matter if the statements could be used in subsequent criminal prosecution. instructs the jury not to draw an adverse inference from the defendant's failure to testify. e. For example. The Griffin Rule. if such an inference were used at the sentencing hearing to determine the quantity of drugs involved in the crime. This rule applies to sentencing hearings. a prosecutor may respond in closing argument to the defense counsel's argument that defendant had not been permitted to explain his side of a story by informing the jury that the defendant did have an opportunity to testify. Minnesota Public Interest Research Group. Conditioning Government Benefits on Self-Incrimination: Selective Service System v. if the defendant was given a greater sentence for not cooperating. and thus does not violate the privilege. was able to prevent an instruction from being . Woodard. The option for a reduction in a sentence is not a penalty in the same sense as a loss or reduction from the status quo. this would affect the amount of prison time to be imposed. d. where the defendant is not the only person who could rebut the prosecution's case. Detective Fuhrman. A prosecutor may. Thus. Mitchell v. b. adverse inferences may be drawn from the refusal to testify in response to evidence offered against a person. (2) The privilege is not violated if the judge. Giving a defendant the option of speaking at a clemency hearing in an attempt to improve his chance of clemency or remain silent does not compel testimony. Adverse Inferences Drawn in Civil Cases. There is no more compulsion in a sentence reduction situation than in a plea bargain. The government does not "compel" testimony by asking questions on a financial assistance application form even though the answers could be used against the applicant in subsequent criminal proceedings. Indirect References to the Defendant's Failure to Testify. To do so would be punishment tantamount to compulsion and in violation of the privilege. c. 3. v. Adverse Inferences at Sentencing: Mitchell v. The No-Adverse-Inference Rule (1) This rule prohibits drawing adverse inferences from the defendant's invoking the right to remain silent and refusing to testify in criminal trials. such as loss of employment or disbarment. The Benefit-Penalty Distinction. this would constitute compulsion. U. United States. Griffin v. state that the People's evidence was "uncontradicted". (2) The No-Adverse-Inference Rule does not apply to civil proceedings. Oregon. in argument concerning the totality of the evidence presented. Carter v. However. since it is not compulsion.S. Threat of Disbarment as Compulsion. in the O. (1) If defendant requests that the jury be instructed not to draw an adverse inference from his not testifying. (3) There are no clear cut rules regarding whether the No-Adverse-Inference Rule applies to non-party witnesses. Neither the court nor counsel may inform the jury that the defendant elected not to testify at trial after invoking the privilege. but only with respect to the underlying facts of the crime that form the basis of the sentencing. United States. c. d. California. the instruction must be given. this would therefore violate the privilege.b. over the objection of the defendant. Lakeside v. Robinson. Kentucky. However. Commenting on the Invocation of the Privilege. United States v. SelfIncrimination and Clemency Proceedings: Ohio Adult Parole Authority v. Simpson criminal case. A benefit-penalty distinction arises when a defendant is required to provide incriminating information in order to obtain a reduction in a jail or prison sentence. a. Cruz.
United States. (2) Participating in a police line-up or obtaining handwriting or voice samples does not violate the privilege. What Is Protected. (1) The forced extraction of blood is not compelled testimony subject to the privilege. evidence that a drunk person slurred his speech is not testimonial. e. Muniz. Compelling the production of documents does not constitute testimonial self-incrimination protected by privilege. To Whom Does the Privilege Belong? 1. United States. falsity or silence. d. The privilege applies to statements made by a defendant to a psychiatrist who will testify at the defendant's sentencing hearing. Thus. the privilege does apply to a sole proprietorship. since the doctor bases a portion of his opinion testimony on the defendant's statements. 4.read to the jury that would have allowed the jury to draw a negative inference from his invoking the privilege. The privilege against self-incrimination is personal. Testimonial Evidence and the Cruel Trilemma: Pennsylvania v. even if wholly owned and operated by one person. may be used as evidence at trial. Testimony at trial concerning a defendant's demeanor when being questioned by police is admissible as a non-testimonial communication. Non-testimonial Evidence. United States. The privilege against self-incrimination does not apply to partnerships or corporations. but answering a question about the date of his sixth birthday causes the person to confront the trilemma and is testimonial. Thus. a. in disclosing the evidence. faces the cruel trilemma. Documents. The refusal to supply physical evidence of a nontestimonial nature. However. choice of truth. b. United States. E. Schmerber v.. such as blood for alcohol analysis. as well as allowing the drawing of an adverse inference therefrom. Compulsion and The "Exculpatory No" Doctrine. Drawing an Adverse Inference as to Non-Testimonial Evidence. 2. the Supreme Court has rejected this defense and has held that a federal statute prohibiting false statements was not unconstitutional under the Fifth Amendment privilege against self-incrimination since the defendant was not compelled to deny criminal responsibility and had the option to remain silent. a. California. a. the decision was based upon the interpretation of a particular state statute. and belongs only to the person who is himself incriminated by his own testimony. Express or Implied Assertions of Fact: Doe v.e. real or physical evidence is generally not protected. Compelling a person's signature on a bank consent form authorizing the release of records is not testimonial since it does not assert that the records do or do not exist. Not all oral statements are testimonials. Only compelled testimony is protected by the privilege. D. . But. However. Adverse Inferences Against NonParties. Psychological Evaluations. The "Exculpatory No" doctrine is a defense to making false statements to government officials which provides that making a simple denial of guilt to government officials does not violate the law. Thus. Fisher v. c. 2. Brogan v. The communication must be an express or implied assertion of a fact that is true or false. it does not protect an individual whose testimony will incriminate another. 1. Note on Testimonial vs Non-Testimonial Evidence. Note on the Collective Entity Rule. The test for determining whether or not evidence is testimonial or non-testimonial is to ask if the witness. i. Fisher v.
a.S. The statute was . even in the limited cases where the act of production is incriminating. Limitations on the Exception. custody or control. United States. or the mere existence of a tax return to prove income. Application of the Fisher Analysis: United States v. Production of Corporate Documents: Braswell v. The "Collective Entity" Rule prevents assertion of the privilege by an agent compelled to produce a business entity's documents that incriminate the agent.g. d. b. The records must be of a kind customarily kept by the individual. for example. e. 3. Thus.. or authenticity is incriminating. it creates an inference of affiliation with another person or business that itself tends to incriminate. United States. the parent of a missing child served with an order to produce the child could not assert the privilege to avoid producing the child.(1) The privilege does not protect the content of nonprivate documents that are prepared voluntarily. independent from their contents. Required Records Exception. U. the production request must not be directed to a selective group inherently suspect of criminal activities. (1) A law requiring motorists to leave their names at the scene of an accident. Required Records. Doe and the Act of Production. Marchetti v. is a compelled testimonial act when it can be shown that the mere existence. The required records exception has limitations.S.. Bouknight. Shapiro v. The Difference Between a Corporate Agent's Compelled Oral Testimony and Compelled Document Production. is not subject to the privilege even if the information is used in subsequent criminal proceedings. Private Papers. the privilege will not apply if the existence. The act of production of documents. control and authentication. b. The authenticity of documents may be incriminating if the defendant is the only means of authenticating the documents. Haynes v. the mere existence of an inordinate number of documents. even if not voluntarily prepared. Thus. if the government requires the documents to be kept for a legitimate administrative purpose. (1) For example. This was so because the court had previously taken the child away from the parent and the subsequent return of the child was under conditions imposed by a protective order. Production of a Person in Response to a Court Order: Baltimore City Dept. When is the Act of Production Incriminating? c. (2) Nonetheless. U. In rare situations. and be of a public nature. and are unrelated to suspected criminal activity. The documents are held by the agent in a representative rather than a personal capacity. Also. they are not protected. As long as the records are for administrative purposes. control and authentication are a foregone conclusion. may be incriminating. e. (2) It is not certain whether or not the privilege will be applied when the content of private documents are compelled. custody or control of documents may be incriminating where. of Social Services v. A corporate agent may not be compelled to give oral testimony as to the location of corporate records where such testimony could incriminate the agent. The act of producing a person in response to a court order is not protected by the privilege since the custodian of the person is acting in the capacity of custodial duties pursuant to the court order. The "required records" exception provides that documents are not protected from production. since the government has not compelled a person to make incriminating records. there is substantial independent evidence of the existence. ordinary business records which the government requires be kept are not protected from production by the privilege and the content of the records may be used against a person in a criminal prosecution.
The Constitutionality of Use Immunity: Kastigar v. Inevitable Discovery. the "Chinese Wall" approach is used so that the same prosecutor who obtained the immunized testimony may not prosecute the subsequent case against the witness. Such use has been upheld for non-evidentiary purposes as in trial strategy. (2) "Use and Derivative Use Immunity" is a limited form of immunity ensuring that the testimony and evidence derived therefrom will not be used in future criminal prosecutions. Use of immunized testimony other than at trial may be proper. if there is absolutely no possibility of future prosecution. Impeachment. Compelled Reporting of an Accident: California v. c. the evidence of lying may be used in subsequent criminal proceeding for perjury. (1) There are no clear-cut rules to determine whether a statute targets a inherently suspect group. g. (3) A person may however be prosecuted for perjury. or furnishes a link in the chain of evidence needed for conviction. e. Immunity. Independent sources or inevitable discovery of the criminal activity may allow the use of immunized testimony. deciding whether to indict or accept a plea bargain. a. Is the Target Group Inherently Suspect? F. The privilege does not apply if a person has been granted immunity from criminal prosecution. the judge must determine whether exercising the privilege is proper.. Determining the Risk of Incrimination. Procedural Aspects of Self-Incrimination Claims. b. d. the judge must make the decision whether the information might incriminate the witness in the future. When a witness in the middle of testifying invokes the privilege against self-incrimination. Proving That Immunized Testimony Was Not Used. e. If. Witnesses' exposure to the defendant's prior immunized testimony results in the improper use of the immunized testimony at trial. To prevent the use of the fruits of immunized testimony from being used in a later prosecution. and it did not target a particular group suspected of criminal activity. Relationship Between Byers and Marchetti-Haynes. If the statute is directed to the public in general. the privilege will apply. false statements or obstruction of justice. Prosecutors need only grant Use and Derivative Use Immunity to compel one to testify. giving a false statement or otherwise failing to comply with an immunity order. United States. pardon issued. Non-Evidentiary Use of Immunized Testimony. the records exception is not available and the documents cannot be compelled. 2. The person can therefore be compelled to testify. Immunity. Thus. Perjury. the records exception permits the production of documents. Without inquiring into the refused testimony. the testimony directly supports a conviction. Independent Source. 1. North.g. however. If the statute targets a specific group inherently suspect of criminal activity and it involves an area permeated with criminal statutes. the privilege may not be invoked. If the immunized witness lies. (1) "Transactional Immunity" is a broad guarantee against future criminal prosecutions for any activity mentioned in the immunized testimony. .essentially regulatory and non-criminal. Tainted Witnesses: United States v. f. Consideration must be given to the purpose of the statute and whether a non-criminal purpose can be found. Byers. c. double jeopardy or immunity granted.
(3) Trickery. Examples include denying the accused the aid of family. A narrow inquiry at the plea colloquy does not result in a waiver of the privilege. Examples include severe brutality. educational background. Confessions and Due Process. the privilege is deemed waived. Had the testimony been made during the trial. such as youthfulness. B. 1. II. A witness who takes the stand to testify waives the privilege with respect to any questions on cross-examination within the scope of direct examination. may invoke the privilege at a subsequent proceeding involving the same immunized statement. a witness may invoke the privilege. he has waived the privilege and the prosecution may use information from the reports of examination as rebuttable evidence. Whether a confession was voluntary considering the totality of the circumstances was no help to law enforcement with respect to permissible interrogations. Psychiatric Defenses. A confession must be voluntary. friends or counsel. i. A. a waiver would have occurred. 2. Obtaining a confession by torture makes it involuntary and a violation of the due process clause. Whether a confession was voluntary was determined on a case-by-case basis.. Failure to Invoke the Privilege. sustained interrogation. Where a defendant requests a psychiatric evaluation for use as a defense. incommunicado confinement. and mental impairment or deficiency. c. A witness may not pick and choose what aspects of a subject to testify about and what aspects to assert the privilege. (1) Physical deprivation or mistreatment makes a confession involuntary. a. threat of mob violence. 3. United States. and the Supreme Court clearly could not review all . or rewards for confessing have all resulted in inadmissible confessions. a defendant does not waive the privilege with respect to refusing to testify at a sentencing hearing by pleading guilty and admitting to "some of" the criminal conduct. and 3. a. When the issue of the admissibility of confessions arises. (4) Consideration should also be given to whether or not the accused has been informed of his right to counsel and right to remain silent. Psychological mistreatment may also cause the confession to be involuntary. Circumstances Relevant to Involuntariness. The right to counsel clause of the Sixth Amendment.e. The privilege against self-incrimination of the Fifth Amendment. It became apparent from the case law that "voluntary" was not so easily defined. The Involuntariness Test: Brown v. three constitutional provisions must be considered: 1. Waiver of the Privilege. the personal characteristics of the accused should be examined. d. b. Waiver of the Privilege by Pleading Guilty? Mitchell v. Subsequent Statements. Informal Immunity. In determining whether or not a confession is involuntary. A witness who has testified in one proceeding after grant of immunity. b.h. Introduction. However. Determining the Scope of a Waiver. Mississippi. (2) Confessions have been upheld where food and cigarettes were provided during the questioning. and denial of food or sleep. c. Unless immunity is granted pursuant to a formal request. Application of the Due Process Clause to Confessions. If a defendant answers a question without asserting the privilege. The Fifth Amendment is applicable at a sentencing hearing. The due process clauses of the Fifth and Fourteenth Amendments. i.
was a sufficient threat of violence to establish coercion. Spano v. A confession obtained by direct or implied promises. l. f.confession cases that arose throughout the nation. A confession by a defendant in a non-rational state of mind is voluntary. confessions obtained without Miranada warnings can be used for impeachment. k. The difficulty in defining the word "voluntary" resulted in the Court eventually applying other constitutional amendments to the issue of confessions. Focus on Police Misconduct: Colorado v. h. A confession that is not a product of defendant's free choice is admissible as long as it was not police misconduct that destroyed the . and the promise is not kept. Threats of Physical Violence: Arizona v. The Importance of Spano. without food or sleep for 25 hours. (2) Also. coercive police activity is necessary for an involuntary confession. Thus. New York. Examples of cases upholding confessions include: defendant with low I. (1) Miranda warnings pursuant to the Fifth Amendment apply only to custodial interrogations. if the confession was obtained before indictment. the fruits of the confession are admissible. barring police misconduct. Increasing Emphasis on Assistance of Counsel: Spano v. Connelly. and psychological problems. even under seemingly hostile circumstances. and the right can be waived. was promised treatment and confessed after seven hours of interrogation. Cayward.Q. however slight. A false promise of lenience is not proper. Florida v. d. Rarely these days do the courts find that a confession was made involuntarily. the courts have been reluctant to follow a literal interpretation of Bram. without police misconduct. However. Fulminante. because the Sixth Amendment right to counsel does not apply until the suspect is formally charged. defendant handcuffed and suffering from heroin withdrawal. The Continuing Relevance of Due Process Protection. (1) The denial of a defendant's repeated requests for counsel during police interrogation and following indictment caused certain Supreme Court justices in concurring opinions to argue that the defendant's right to counsel was denied. j. in order to obtain a confession is not permissible. i. g. U. False Documentary Evidence.S. (2) Thus. Bram v. The creation of false documentary evidence. The voluntariness test should not be abandoned. Criticism of the Involuntariness Test. is not voluntary. and functioning at level of 11-year old. but a promise to advise the prosecutor of the defendant's cooperation is allowed. It may be the only basis to challenge a confession. low I. Deceptive techniques have been approved. and the confession can be admitted if obtained under emergency circumstances. such as a DNA report showing it was the defendant's fluids on the victim. Modern Due Process Cases. because the violation of Miranda is not a violation of the Constitution. Thus. is voluntary and not coerced. Modern Due Process Cases. e. Promises of Consideration. A confession made by the defendant to a police informant cellmate who offered to protect the defendant from other prisoners in exchange for the truth. such as using "false friend" or "game is up" approach. wounded defendant interrogated by police with guns drawn. New York paved the way for the court to consider the application of other constitutional limitations on obtaining confessions. A confession.Q. most courts prohibit false promises during interrogation only when the police make a specific promise to provide a specific benefit to the defendant in exchange for a confession.
S. (Mallory v.C. Delay in Presentment: The McNabb/Mallory Rule. and the confession should be made within 6 hours following arrest. d. Construing the Statute: United States v. must be warned of the right to remain silent. Arizona. b.C. In order to properly inform persons of their right of silence and to assure a continuous opportunity to exercise it. One court has held that a confession made within the 6 hour period following arrest was not entitled to suppression under the McNabb/Mallary cases since they are no longer the law concerning delay. and requires certain warnings be given to the suspect prior to obtaining admissible statements. an accused. A. knowingly and intelligently. A number of factors must be considered to determine voluntariness. A. 1. a. Arizona. Thus. III. there can be no questioning. IV. police interrogations were immune to Fifth Amendment attack because there was no . Relationship Between Section 3501 and the McNabbMallory Rule. Congress attempted to eliminate the McNabb/Mallory Rule by enacting a statute which provided that a confession shall not be inadmissible solely because of a delay in bringing the defendant before a magistrate.S. The McNabb/Mallory Rule. Miranda v.S. statements obtained from a suspect during a custodial interrogation are inadmissible unless procedural safeguards are used which effectively safeguard the privilege against self-incrimination. If the suspect indicates at any time he wishes to consult with an attorney.). Miranda v. Also.S. Prior to Miranda. The Special Federal Standard for Confessions. 1. These rights may be waived if the waiver is made voluntarily. The Fifth Amendment privilege against self-incrimination applies to police interrogations. U. does not apply when a suspect is being detained by state authorities on state charges. and that he has a right to an attorney. Problems With a Test Based on Free Will.). if the individual does not wish to be interrogated. Consideration should be given to whether or not the government has made it impossible for the defendant to make a rational choice as to whether to confess. Miranda is significant for not only its requirement of giving the accused certain warnings prior to interrogation. Answering some questions or volunteering some statements does not deprive one of the right to refrain from answering further inquiries. The federal confession statute. but also because it applied the Fifth Amendment privilege to custodial interrogations.§ 3501. prior to any questioning. 18 U. a. 2. 2. The McNabb/Mallory Rule developed from two cases that held that federal court confessions are inadmissible if the arrestee is not timely brought before a judicial officer (McNabb v.free will. unless distance or travel to a magistrate is a factor. Confessions made beyond 6 hours following arrest may be admissible if voluntary and either not as a result of police interrogation or the delay was not completely unreasonable or in bad faith. b. The term custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. the police may not question him. The Congressional Approach: 18 U. either retained or appointed. U. c. Alvarez-Sanchez. § 3501. or if there is unnecessary delay in taking the arrestee before a committing magistrate. that any statement made may be used against him. Application of the Fifth Amendment Privilege Against Self-Incrimination to Confessions.
Analysis of Miranda.obligation to speak. Miranda claims can be re-litigated on collateral review of a state court conviction. (2) Once Miranda warnings are given. 6. but it would not necessarily safeguard against compulsion. (1) Statements made either with or without the Miranda warnings may be used for purposes of impeaching the defendant's credibility. (a) If the first Miranda-defective confession is involuntary. The issue of whether or not Congress. it is inadmissible. (b) Post-arrest silence. Miranda as Symbol. Subsequent Confessions: Oregon v. Did Congress Overrule Miranda? 1. Post-Arrest. The Miranda Compromise. Involuntary Confessions.§ 3501. Alternatives to Miranda. B. Exceptions to the Miranda Rule of Exclusion. but resulting from a Miranda-defective first confession. by enacting the federal confession statute. 1. Admitting the Fruits of a Miranda Violation. the second confession following Miranda warnings is inadmissible. Leads to Witnesses: Michigan v. However. Tucker. the prosecution may not use the defendant's silence for impeachment purposes. a.S. pre-arrest and pre-Miranda warnings. b. Miranda's Costs on Habeas Review. Miranda is a symbol of the Warren court's decisions concerning criminal procedures. To exclude Miranda claims on habeas review would not significantly benefit the federal courts. overruled Miranda will be decided by the Supreme Court in United States v. Thus. New York. (3) A second confession after Miranda warnings are given.C. Was the Subsequent Confession Involuntary? . it cannot be admitted even for impeachment purposes. is admissible if it is made knowingly and voluntarily. 5. preceding Miranda warnings. 4. Harris v. even if he testifies at trial. It is not however involuntary merely because the first confession was made. (a) If the statement is involuntary. Hass. Oregon v. Was the First Confession Involuntary? (b) If the second confession is involuntary. Dickerson. Impeachment With Prior Silence. The ruling struck a compromise and did not give significant advantages to the suspect being interrogated. 7. 18 U. the court did not explain what procedures would be acceptable alternatives. The Constitution Does Not Require The Miranda Safeguards. so therefore no duty against which a privilege of silence could be applied. Pre-Arrest Silence. C. (2) Miranda-defective statements by a defendant. The Miranda court invited alternatives to its warnings and waivers. as opposed to Miranda-defective. is permissible. Violation of Miranda is not by itself a violation of the Constitution. is permissible for impeachment purposes. (1) Exclusion of the fruit of the poisonous tree is applicable when a constitutional right is violated. different alternatives have not been proposed. Pre-Miranda Silence. 3. Elstad. Numerous studies have been done to determine the impact of Miranda on confessions and convictions. (a) Impeachment by using silence. Miranda did not hold that a suspect must have a non-waivable right to an attorney before being interrogated. Videotaping would deter police misconduct. The debate over the effects is ongoing. The Impact of Miranda. which lead to incriminating statements from a witness. do not bar the witness' testimony. Impeaching the Defendant-Witness.
a. (4) Physical evidence. Miranda warnings are only required when the defendant is in custody. . it is not custody. Criticism of Elstad. and a Miranda-defective confession taints the second confession. Objective Test: Stansbury v. (b) Whether unrestrained freedom of movement existed. Prisoners in Custody. California. Terry Stops: Berkemer v. D. (3) A lower court ruling allowed a pre-Miranda statement when the in-custody drug suspect was asked by the police if there were any needles or drugs on his person prior to being searched. if freedom of movement by the prisoner is not diminished within jail. the defendant's statement to police regarding the gun's location. (6) Terry stops are not custody and do not require Miranda warnings. If government agents come to person's home just to talk. However. c. (2) What exactly constitutes public safety is not clear. (4) Meeting with a probation officer for questioning concerning a crime without arrest is not custody. Open Questions After Miranda. (5) Whether or not the police conducting questioning believe that person is a suspect is not relevant unless the beliefs were communicated to the person interrogated and it affected the person's freedom to leave. Interrogation at the Police Station: Oregon v. was admissible. (c) Whether suspect initiated contact or voluntarily agreed to questioning. (7) Relevant factors to determine custody are (a) Whether suspect was told he was free to leave. Mathiason. Arrest is Custody. (3) Voluntarily going to police station for questioning does not constitute custody if no arrest occurs and freedom to leave exists. (1) Overriding considerations of public safety which justify the failure to give Miranda warnings. Murphy. New York v. (d) Lower courts are divided on whether a Miranda-warned second confession following close in time to a Miranda-defective first confession should be admissible. Warned Statements Immediately Following Unwarned Statements. confessions without Miranda warnings are inadmissible. Meetings With a Probation Officer: Minnesota v. Quarles.(c) The dissent in Elstad argued that the prewarning and post-warning questioning is one overall interrogation. (2) Persons in jail on unrelated matters are in custody for purposes of other crimes. The officer's concern about being poked with a needle constituted public safety. An Emergency Exception. Custody. made following foot pursuit immediately after rape occurred. If there is no immediate need to inquire of the suspect. which is the fruit of a Miranda-defective confession. it may not constitute custody. Physical Evidence Derived From MirandaDefective Confessions. Thus. McCarty. will permit the admissibility of an Miranda-defective confession into evidence. Categorical Application of the Public Safety Exception. What is Custody? (1) A person is in custody if he is deprived of his freedom of action in any significant way. The Scope of the Public Safety Exception. 1. An arrested person is in custody even though he is arrested inside his home. is admissible since constitutional rights are not infringed by a Miranda violation.
b. Indirect Statements. How Complete and Accurate Must the Warnings Be? E. (d) (e) Whether strong arm or deceptive tactics were Whether atmosphere was police dominated. Does Miranda Protection Depend on the Nature of the Offense? 5. Determining the Scope of the Booking Questions Exception. A confession made following a waiver may be inadmissible because of overbearing police pressure. Rhode Island v. Waiver of Miranda Rights.used. "Knowingly and intelligently" means the waiver is given with awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Miranda warnings are required for both felonies and misdemeanors. 3. A waiver must be made voluntarily." i. Does Miranda Apply to Undercover Activity? 4. Muniz. As long as they do not mislead or create ambiguity. (1) Determining whether a question falls within the booking exception depends upon whether there is a proper administrative purpose. The Miranda warnings need not be given verbatim. Application of Innis: Arizona v. . Appeals to the Welfare of Others as Interrogation? (c) Confronting suspect with incriminating evidence against him constitutes interrogation. Interrogation must exist before Miranda warnings are required to be given.e. questions that are attendant to custody. b. Mauro. (f) Whether arrest occurred at conclusion. c. without direct questioning. 1. and. "Voluntarily" means the waiver is the product of a free and deliberate choice. (2) Instructions and questions regarding sobriety tests and understanding them are not interrogations since they do not call for any verbal responses and are necessarily attendant to the tests. Relationship of Waiver Standards to the Test for Voluntary Confessions. 2. a. Knowing and Voluntary. Summary on Custody: Relevant Factors. However. (b) Statements made in response to officer's comments concerning arresting suspect's daughter was not made as a result of interrogation. Confronting the Suspect With Incriminating Evidence. Direct vs. the exception will not apply if questions are designed to elicit incriminating statements. if the police should know that their words or actions are reasonably likely to elicit an incriminating response from the suspect. (a) Statements voluntarily made to a spouse and knowingly recorded by police after request for counsel has been made does not constitute compelled interrogation. Questions Attendant to Custody: Pennsylvania v. Making direct comments to a suspect will more likely constitute interrogation than comments not directly made to a suspect. What is Interrogation? (1) Interrogation may exist. do not require Miranda warnings. A waiver may not be made knowingly and intelligently if the person is mentally deranged or impaired. Understanding the Miranda Warnings. they are proper. a. Innis. Questions Pertinent to Custodial Procedures and Tests. knowingly and intelligently. or if there is a language barrier. The "booking exception. Miranda warnings are not required for statements made to an undercover agent since there is no protection against those not believed to be a government agent. Interrogation..
If the suspect ambiguously or equivocally invokes the right. Invocation of the Right to Counsel: Edwards v. h. Questions After Burbine. Dissent in Burbine (2) A lower court has held that if the defendant knows an attorney has been retained and is not so advised by police. Scrupulously Honoring an Invocation of Silence. and not from police harassment. Mosley. (1) A cooling off period after invoking Miranda rights is evidence of scrupulously honoring the right of the suspect. The Role of Counsel. Waiver After Invocation of Miranda Rights. i. questioning is not forever barred. nor must he be advised of all possible subjects of questioning. However. Information Needed for an Intelligent Waiver: The Scope of the Interrogation-Colorado v. Elstad f. If a suspect first invokes Miranda rights and then waives them to confess. (1) The dissenting view holds that requiring the police to inform a suspect of an attorney's attempt to reach him would serve Miranda's goal of dispelling the compulsion inherent in custodial interrogation. Burbine. Once Miranda rights are invoked. the right to stop questioning must be scrupulously honored. unless the suspect initiates the communication with police. Agreeing to make an oral statement but not a written one is a knowing and voluntary waiver. This is true even if their conduct was an intentional act done to deprive the defendant of knowing that an attorney was attempting to reach him. g. They are not meant to prevent deliberate. A waiver is valid in spite of the defendant not knowing that an attorney had made efforts to reach him and had told police not to question the defendant. Information Needed for an Intelligent Waiver: The Inadmissibility of a Previous Confession-Oregon v. No Requirement to Inform the Suspect of Counsel's Efforts. Conditional Waivers: Connecticut v. . e. the issue of waiver arises only upon renewed police contact amounting to custodial interrogation. Some state courts have held that Miranda is violated regardless of whether a suspect knows that an attorney has been retained. a. State of Mind of Police Irrelevant. Once a suspect invokes his right to counsel. Multiple efforts to get the suspect to speak may be valid as long as each attempt is preceded by Miranda warnings. Rather. Connecticut v. misleading conduct by the police. A suspect must unequivocally invoke his right to remain silent. Barrett. police may continue questioning and need not clarify the suspect's intent. Miranda is violated. interrogation is permitted after a knowing and voluntary waiver. Miranda warnings are measures to protect against compulsory self-incrimination. it may not be waived until counsel has been made available. Information Needed for an Intelligent Waiver: Efforts of a Lawyer to Contact the Suspect-Moran v. 2. b. agreeing to talk about one subject but not another is not a total waiver. Miranda does not require police to inform a suspect of an attorney's effort to reach him. (1) Once the suspect invokes the right to counsel. A defendant need not be fully advised of each and every possible consequence of the waiver. Once honored. The state of mind of the police is not relevant in determining the validity of a waiver. When Is the Right to Silence Invoked? c.c. A second post-Miranda confession is not inadmissible because defendant was not advised that his first pre-Miranda confession could not be used against him. Invocation of the Right to Silence: Michigan v. Relationship Between Edwards and Innis. Arizona. Barrett. the change of mind must come from the suspect. Spring. d.
The questions need not be limited to the issue of whether the suspect wants a lawyer. Thus. it is a violation of the right to counsel to not inform defense counsel that his . even for up to 19 months prior to being indicted. questioning may not occur regarding any crime. The right to counsel cannot be invoked prior to police interrogation. d. e. Once the Sixth Amendment right to counsel is invoked after charges have been brought. Questions After Davis. Unrelated Crimes: Arizona v. f. the questioning may continue. the adversary nature of the proceedings disallows interference with the right. The right to counsel does not allow a defendant the right to have counsel present at a psychiatric interview. (3) Not all communications by the suspect are "initiation". The Sixth Amendment right to counsel is violated if incriminating statements are obtained from the accused after judicial proceedings have been initiated and counsel retained. even those other than the one for which the right was invoked. Wisconsin. the more extensive interrogation allowed under the Sixth Amendment may not be overcome by asserting Miranda rights in advance of interrogation. Mississipp V. to apply the Sixth Amendment right to counsel to pre-institution of judicial proceedings. Can Edwards Protections Be Triggered in Advance of Interrogation? h. does not constitute judicial proceedings for which the right to counsel will attach. One who is arraigned and asks for counsel does so under the Sixth Amendment. However. B. b. "What is going to happen to me now?" is initiation. Obtaining Information From Formally Charged Defendants. Illinois. Obtaining incriminating statements from an accused after an indictment has been returned violates the Sixth Amendment right to counsel. a. Once the right to counsel is invoked. Gouveia. 2. Sixth Amendment Attaches at Formal Charge: United States v. United States. Police initiated interrogation after consultation with attorney has occurred is not allowed. Invoking the right to counsel must be unequivocal. 3. The Rationale of Massiah. Bradshaw. Ambiguous Invocation of the Right to Counsel: Davis v. 1. Which Constitutional Right to Counsel is Invoked? McNeil v. police can initiate questions other than on the crime with which defendant is charged. Thus. Massiah v. Miranda rights protect against police initiated interrogation with respect to any crime. (2) An unambiguous request for counsel followed by ambiguous statements requires the cessation of questioning. (1) Some have questioned whether the requirement of an explicit invoking of the right to counsel disadvantages those who use a less direct and assertive pattern of speech. A psychological evaluation is admissible to rebut a defense of extreme emotional disturbance when defense counsel has joined in the request for the evaluation. The Massiah Rule. Where the Suspect Has Consulted With Counsel: Minnick v. Administrative detention of prison inmates. Williams. Note on Escobedo v. g. Roberson. The right to counsel exists based upon Miranda and the Sixth Amendment. prior to Miranda. A. Illinois. if the confession occurs after a knowing and intelligent waiver it is admissible. It was a short lived attempt. Application of the Sixth Amendment Right to Counsel to Confessions.(2) A suspect asking. If it is ambiguous or equivocal. However. even if statements are not made directly to the police. Brewer v. Applications of Bradshaw. nonverbal communications such as facial expressions are not initiations. Defining Initiation: Oregon v. 1. Consequences of Explicit Invocation: Smith v. United States.
Waiver of Sixth Amendment Protections. Two Situations in Which Sixth Amendment Waiver Standards Might be Different. 1. waiving Miranda rights does not waive the Sixth Amendment right to counsel. C. once warnings are given and waived. In limited situations. The reasoning is that the government must have known that the statements concerning the uncharged crimes would incriminate on the charged crimes as well. Thus. For example. a waiver would not be valid in the Sixth Amendment context if the suspect was not told that his lawyer was trying to reach him during questioning. Is the Informant a State Agent? D. On the Meaning of "Deliberate" Elicitation. Wilson. Use of Undercover Officers and State Agents. Most lower courts have held that there is no requirement to advise a suspect that he has been indicted before a Sixth Amendment waiver may be found. Wisconsin. If the suspect remains silent while counsel is appointed. There has been no determinative ruling by the Supreme Court as to whether or not the Constitution requires exclusion of a confession obtained in violation of the Sixth Amendment right to counsel. Illinois. a subsequent waiver is valid only if the suspect initiates a later conversation and knowingly and voluntarily waived his rights. E. 1. Invoking the Sixth Amendment right to counsel protects only as to the crime charged. which include the right to counsel. It may however obtain information regarding crimes not charged. When an accused invokes the Sixth Amendment right to counsel. Henry. 2. even with testimony by the defense of insanity. There must be a deliberate elicitation by the governmental agent of incriminating evidence from the defendant. lower courts have held that the uncharged crime evidence is inadmissible. Jackson. The question of whether or not an informant is acting as a government agent or on his account depends upon whether or not the government encouraged the informant to act on the particular case at issue. 3. Determining whether or not a crime is related to the crime charged depends on whether the crime derives from the same factual predicate as the charged offense.client would be examined on the issue of future dangerousness. 2. c. Continuing Investigations. Miranda warnings. Waiving Sixth Amendment Rights After Receiving Miranda Warnings: Patterson v. Indictment Warnings. . The government may not use an informant to circumvent the right to counsel and obtain information regarding crimes already charged. 3. a. F. sufficiently advise the suspect of his right to counsel under the Sixth Amendment. 2. he has not deliberately elicited information from him. If the jailhouse informant does nothing more than listening to the defendant. Questions After Moulton. b. Which Crimes Are Related to the Crime Charged. 1. or where a surreptitious conversation occurred between an undercover officer and an indicted suspect. If the evidence obtained regarding the uncharged crimes is relevant in the prosecution of the charged crimes. a. 1. Moulton. The Listening Post: Kuhlmann v. Waiver as to Crimes Unrelated to the Crime Charged: McNeil v. Waiving the Sixth Amendment Right to Counsel After Invoking It: Michigan v. Jailhouse informants are also subject to the "deliberately elicited" test regarding obtaining incriminating evidence from the defendant. Maine v. Psychiatric Defenses and the Sixth Amendment. The Sixth Amendment Exclusionary Rule. questioning is permitted concerning crimes unrelated to those charged. this is not a valid waiver. Jailhouse Plant: United States v.
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