Rights of the Defendant & Detainee

Meaders – Spring 2022

The Independent Source Exception to the Exclusionary Rule

The independent source exception to the exclusionary rule allows the admission of evidence that is
discovered by lawful means wholly independent of and untainted by any constitutional violation. If
information or evidence obtained during an unlawful search prompts the police to apply for a warrant or
is used by the police to secure a warrant, the independent source exception does not apply.

The Inevitable Discovery Exception to the Exclusionary Rule

The inevitable discovery exception to the exclusionary rule allows the admission of illegally obtained
evidence if the prosecution can prove, by a preponderance of the evidence, that the illegally obtained
evidence would have ultimately or inevitably been discovered by lawful means. The prosecution is not
required to prove the absence of bad faith by police to invoke the inevitable discovery exception.

Inadequate Causal Connection and Attenuation of the Taint

1. The exclusionary rule should not be applied if there is an inadequate causal connection between
the illegal conduct of the police and the disputed evidence, or if the connection between the
unlawful conduct of the police and the discovery of the challenged evidence has become so
attenuated as to dissipate the taint. Factors relevant to this determination include:

a. The temporal proximity between the illegal police conduct and the evidence.

b. The presence of intervening circumstances.

c. The purpose and flagrancy of the official misconduct.

The Voluntariness Requirement for Confessions

Jackson v. Denno (1964) explains, involuntary confessions are excluded from evidence for two basic
reasons. First, a coerced confession may be unreliable, leading to a wrongful conviction. And second,
even if a coerced confession is reliable (because, for example, there is strong corroborating evidence),
we want to deter the police from employing abusive tactics.

1. For a confession to be admitted into evidence against the accused, due process requires

the prosecution to prove, by at least a preponderance of the evidence, that the confession was

given voluntarily. Due Process clause in 5th Amendment for federal government; due process

clause in 14th Amendment for the states

 2. A court must examine the totality of the circumstances surrounding the confession to decide if it
was voluntary or if the suspect's will be overborne. Coercive police activity must be present for a
confession to be considered involuntary. Other factors bearing upon the voluntariness
determination include: the use of force or threats of force; the amount of time spent in police
custody or under interrogation; deprivation of food, sleep, medical care, or other necessities;
psychological ploys and police deception; and the age, education, and mental condition of the
suspect.

The Miranda Requirements

1. When an individual is taken into custody or otherwise deprived of his freedom by the authorities
in any significant way and is subjected to questioning, procedural safeguards must be employed
to protect the privilege against self-incrimination. The individual must be warned prior to any
questioning that he has the right to remain silent, that anything he says can be used against him
in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford
an attorney, one will be appointed for him prior to any questioning if he so desires.
2. Opportunity to exercise these rights must be afforded to the individual throughout the
interrogation. After the individual has received the warnings and been given the opportunity to
exercise his rights, he may knowingly and intelligently waive his rights and agree to answer
questions or make a statement. But if the individual shows in any manner, at any time prior to or
during questioning, that he wishes to remain silent, the interrogation must cease. And if the
individual states that he wants an attorney, the interrogation must cease until an attorney is
present. At that time, the individual must have an opportunity to confer with the attorney and to
have him present during any later questioning. If the individual cannot obtain an attorney and
shows that he wants one before speaking to police, they must respect his decision to remain
silent.
3. No evidence obtained because of custodial interrogation can be used against the individual
unless and until the prosecution proves at trial that he received the required warnings and
waived his rights.

The Meaning of "Custody" Under Miranda

1. Miranda warnings are required when an individual is subjected to police interrogation while in custody
or otherwise deprived of his freedom of action in any significant way, regardless of the nature or severity
of the offense of which he is suspected.

2. The custody determination focuses on the objective circumstances of the interrogation, not on the
subjective views held by either the interrogating officers or the person being questioned. A court must
examine all the circumstances surrounding the interrogation and decide whether a reasonable person in
the position of the individual being questioned would have felt free to end the interrogation and leave.
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. The ultimate inquiry is whether there was a formal arrest or
restraint on freedom of movement of the degree associated with a formal arrest, coupled with
consideration of whether the relevant environment presents the same inherently coercive pressures as
the type of stationhouse questioning at issue in Miranda.

3. A person temporarily detained for roadside questioning during a routine traffic stop is not ordinarily
"in custody" for purposes of Miranda.

4. When a prisoner is isolated from the general prison population and questioned about conduct that
occurred outside the prison, the inmate is not necessarily "in custody" for purposes of Miranda.

The Meaning of "Interrogation" Under Miranda

1. The term "interrogation" under Miranda refers not only to express questioning, but also to any words
or actions on the part of the police (other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an incriminating response from the suspect. The latter
part of this definition focuses primarily on the feelings of the suspect, rather than the intent of the
police.

a. Although the interrogation inquiry focuses primarily on the perceptions of the suspect rather
than the intent of the police, when a police practice is designed to elicit an incriminating
response from the accused, it is likely that the practice will also be one that the police should
have known was likely to have that effect.

b. Any knowledge the police may have had concerning the unusual susceptibility of a defendant
to a particular form of persuasion might be a key factor in deciding whether the police should
have known that their words or actions were reasonably likely to elicit an incriminating response
from the suspect.

2. An undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to
an incarcerated suspect before asking questions that may elicit an incriminating response. Such
questioning is not "interrogation" for purposes of Miranda. The concerns underlying Miranda—the
compulsion felt by the suspect in a police officer dominated atmosphere—are not present when an
incarcerated person speaks freely to someone whom he believes to be a fellow inmate.

The Required Content of the Miranda Warnings

The police do not have to deliver the Miranda warnings in the precise formulation described by the
Supreme Court's decision if the warnings are administered in a form that reasonably conveys to a
suspect his rights as required by Miranda.

The "Fruits" of a Miranda Violation

1. Any statements made by a suspect during custodial interrogation are presumed compelled and are
inadmissible if the prosecution does not show that the suspect received and waived his rights under
Miranda. But other evidence that is "fruit" of the Miranda violation may be admissible if the Miranda
violation was not deliberate, and if the suspect's statement was voluntarily given and not actually
compelled.

2. When police obtain a confession following a Miranda violation and then obtain a second confession
after administration of the Miranda warnings, the first confession is inadmissible, but the admissibility of
the second confession depends on a number of factors.

a. Was either the first or second confession coerced, or were both given voluntarily?

b. Was the failure to administer Miranda warnings prior to the first confession a "good faith"
mistake or oversight, or was it a deliberate interrogation tactic designed to circumvent Miranda?

c. Considering any changes in time, place, circumstances, and the content of the
communications between the suspect and the police during the first and second interrogations,
would a reasonable person in the suspect's shoes perceive the second interrogation as a
continuation of the first, or as a separate and distinct experience in which the Miranda warnings
effectively informed him that he still had a choice about whether to confess?

General Guidelines for Miranda Waivers

1. An individual may expressly or implicitly waive the right to remain silent and the right to counsel
provided the waiver is made voluntarily, knowingly, and intelligently. The inquiry has two distinct
dimensions:

a. The relinquishment of the right must have been voluntary in the sense that it was the product
of a free and deliberate choice rather than intimidation, coercion, or deception.

b. The waiver must have been made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.

Invocation and Waiver of Miranda's Right to an Attorney

1. A suspect who wishes to invoke her right to an attorney under Miranda must do so unambiguously.
This is an objective standard that requires the suspect to articulate her desire to have counsel present
sufficiently clearly that a reasonable police officer in the circumstances would understand the statement
to be a request for an attorney. If the suspect invokes her right to an attorney at any time prior to or
during custodial interrogation, the interrogation must cease.

a. If a suspect makes an ambiguous or equivocal reference to an attorney, it will often be good

police practice for the interviewing officers to clarify whether she wants an attorney, but the
officers do not have to ask clarifying questions. If the suspect's statement is not an unambiguous
or unequivocal request for counsel, the officers have no obligation to stop questioning her.

2. A suspect who has received Miranda warnings may validly waive the right to an attorney during
custodial interrogation so long as the relinquishment of the right is voluntary, knowing, and intelligent.
The validity of a waiver depends in each case upon the particular facts and circumstances, including the
background, experience, and conduct of the suspect.
3. If a suspect invokes her right to an attorney during custodial interrogation, a valid waiver of that right
cannot be proven by showing only that she responded to further police-initiated custodial interrogation,
even if she has been given a fresh set of Miranda warnings. Having expressed her desire to deal with the
police only through counsel, the suspect is not subject to further interrogation by police until counsel is
present, unless the suspect herself starts further communication, exchanges, or conversations with the
police. A statement obtained by police following a violation of this rule is presumed to be the product of
an involuntary waiver and is inadmissible.

The Sixth Amendment Right to Counsel and the Prohibition on Deliberate Elicitation

1. The Sixth Amendment right to counsel attaches at or after the initiation of adversary judicial criminal
proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or
arraignment.

2. Once the Sixth Amendment right to counsel has attached, police cannot deliberately elicit
incriminating statements from the accused outside the presence of counsel.

a. Deliberate elicitation occurs when the government or its agents knowingly or intentionally
create a situation likely to induce the accused to make incriminating statements without the
assistance of counsel.

b. To prove deliberate elicitation, the defendant must show that the police or their agents or
informants took some action, beyond merely listening, that was designed deliberately to elicit
incriminating remarks. The fact that an informant, either through prior arrangement or
voluntarily, reported the defendant's incriminating statements to the police is insufficient to
prove a violation of the right to counsel.

c. The fact that the accused initiates conversations or meetings with government agents or
informants does not prevent a finding of deliberate elicitation.

d. Deliberate elicitation can occur even in the absence of "custodial interrogation" as defined by
Miranda and its progeny.

3. Statements taken in violation of the Sixth Amendment prohibition on deliberate elicitation cannot be
introduced at trial as evidence of the defendant's guilt.

Right to Counsel: Fundamental and essential to a fair trial. Part of the adversarial system.

Right to Counsel: Defendant can waive if done voluntarily and intelligently. The right to counsel is a
personal right, but the trial court cannot impose it on the defendant.

Right to Effective Assistance of Counsel

1. Errors made by defense counsel must go beyond what a reasonable defense attorney would have
done under the circumstances. Context matters!
2. Extremely hard to second guess the strategy of defense counsel’s action at trial.

3. Are the errors bad enough to have made a difference in the verdict? In other words, absent the errors
made, would there have been a different verdict?

4. Did counsel’s actions so undermine the proper function of the adversarial process that the trial cannot
be relied on as having produced a just result? Actions/omissions outside scope of professional
expectations?

5. What professional norms are expected in a criminal trial?

6. Duties: aid defendant; loyalty; avoid conflicts of interest; advocate defendant’s cause; consult with
defendant on important decisions; keep defendant informed of case developments.

The Right to Counsel: Lineups

1. Once adversary judicial criminal proceedings have started—whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment—the defendant is entitled, under the Sixth
Amendment, to have counsel present at any lineup identification. Any evidence or testimony about a
lineup identification conducted in violation of the defendant's right to counsel is inadmissible.

2. If testimony or other evidence regarding a lineup identification is inadmissible because the lineup took
place after the initiation of adversary judicial criminal proceedings and the defendant's counsel was not
present, the prosecution may still attempt to elicit an in-court identification from the witness, provided
the prosecution proves, by clear and convincing evidence, that the in-court identification is based upon
observations of the suspect other than the lineup identification. Put somewhat differently, the
prosecution must show, by clear and convincing evidence, that the in-court identification has an
independent origin untainted by the illegal lineup. Application of this test requires consideration of
various factors, such as the prior opportunity to observe the alleged criminal act, the existence of any
discrepancy between any pre-lineup description and the defendant's actual description, any
identification prior to lineup of another person, the identification by picture of the defendant prior to
the lineup, failure to identify the defendant on a prior occasion, the lapse of time between the alleged
act and the lineup identification, and any facts disclosed concerning the conduct of the lineup.

The Right to Counsel: Photo Arrays

A suspect is not entitled to have counsel present at a pretrial photographic identification, regardless of
whether adversary judicial criminal proceedings have started.

Due Process Challenges to Police Identification Procedures

1. A defendant may challenge a police identification procedure by showing that it was so unnecessarily
suggestive and conducive to irreparable mistaken identification as to constitute a denial of due process
of law. In order to satisfy this burden, the defendant must show all the following:
 a. The identification procedure was suggestive.

b. The suggestive aspects of the identification were arranged by law enforcement.

c. The identification procedure was unnecessary.

d. The identification procedure created a substantial likelihood of misidentification, making the

identification unreliable.

2. In deciding whether the identification procedure created a substantial likelihood of misidentification,

the court must decide whether there are indicators of a witness' ability to make a correct identification
that outweigh the corrupting effect of law enforcement suggestion.

Among the factors to be considered are:

a. The opportunity of the witness to view the criminal at the time of the crime.

b. The witness' degree of attention.

c. The accuracy of the witness' prior description of the criminal.

d. The level of certainty proven at the confrontation.

e. The time between the crime and the confrontation.

3. Where the indicators of a witness' ability to make a correct identification are outweighed by the
corrupting effect of law enforcement suggestion, the identification should be suppressed. But where the
indicators show the identification is reliable despite law enforcement's suggestive influences, the
identification evidence is admissible and should be evaluated by the jury