Confessions

Question 1

What is a confession?

Answer 1

The admissibility of a defendant’s confession (or other incriminating admission) involves analysis under the Fourth, Fifth, Sixth, and Fourteenth Amendments.

Question 2

What is voluntariness under the 14th A?

Answer 2

For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances. A statement will be involuntary only if there is some official compulsion (for example, a confession is not involuntary merely because it is a product of mental illness).

Question 3

When does the harmless error apply?

Answer 3

If an involuntary confession is admitted into evidence, the harmless error test applies; this means the conviction need not be overturned if there is other overwhelming evidence of guilt.

Question 4

What is the 6th A right to counsel?

Answer 4

The Sixth Amendment guarantees the right to the assistance of counsel in all criminal proceedings, which include all critical stages of a prosecution after judicial proceedings have begun (for example, formal charges have been filed). It prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless the defendant has waived their right to counsel.

Question 5

What are the stages at which the 6th A right to counsel applies?

Answer 5

A defendant has a right to be represented by privately retained counsel, or to have counsel appointed for them by the state if the defendant is indigent, at the following stages:
• Post-indictment interrogation, whether or not custodial
• Preliminary hearings to determine probable cause to prosecute
• Arraignment
• Post-charge lineups
• Guilty plea and sentencing
• Felony trials
• Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed
• Overnight recesses during trial
• Appeals as a matter of right
• Appeals of guilty pleas

Question 6

What are the stages at which the 6th A is not applicable?

Answer 6

• Blood sampling
• Taking of handwriting or voice exemplars
• Precharge or investigative lineups
• Photo identifications
• Preliminary hearings to determine probable cause to detain
• Brief recesses during the defendant’s testimony at trial
• Discretionary appeals
• Parole and probation revocation proceedings
• Post-conviction proceedings

Question 7

Is the 6th A offense specific?

Answer 7

The Sixth Amendment is offense specific. Thus, even though a defendant’s Sixth Amendment rights have attached regarding the charge for which they are being held, the defendant may be questioned regarding unrelated, uncharged offenses without violating the Sixth Amendment right to counsel (although the interrogation might violate the defendant’s Fifth Amendment right to counsel under Miranda; see below). Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.

Question 8

What is the waiver of the 6th A right to counsel?

Answer 8

The Sixth Amendment right to counsel may be waived. The waiver must be knowing and voluntary. However, the waiver does not necessarily require the presence of counsel, at least if counsel has not actually been requested by the defendant but rather was appointed by the court.

Question 9

What is the remedy to the 6th A right to counsel?

Answer 9

At nontrial proceedings (such as post-indictment interrogations), the harmless error rule applies to deprivations of counsel. But if the defendant was entitled to a lawyer at trial, the failure to provide counsel results in automatic reversal of the conviction, even without a showing of specific unfairness in the proceedings. Similarly, erroneous disqualification of privately retained counsel at trial results in automatic reversal.

Question 10

How does impeachment work under the 6th A right to counsel?

Answer 10

A statement obtained in violation of a defendant’s Sixth Amendment right to counsel, while not admissible in the prosecution’s case-in-chief, may be used to impeach the defendant’s contrary trial testimony. This rule is similar to the rule that applies to Miranda violations.

Question 11

What are miranda warnings?

Answer 11

Miranda warnings are required when a suspect is in custodial interrogation. For an admission or confession to be admissible under the Fifth Amendment privilege against self-incrimination, a person in custody must, prior to interrogation, be informed, in substance, that:
• The person has the right to remain silent
• Anything the person says can be used against them in court
• The person has the right to presence of an attorney; and
• If the person cannot afford an attorney, one will be appointed for them if they so desire
Note that the warnings need not be verbatim so long as the substance of the warnings is conveyed.

Question 12

When are miranda warnings required?

Answer 12

Anyone in the custody of the government and accused of a crime must be given Miranda warnings prior to interrogation by the police.

Question 13

What is governmental conduct under miranda?

Answer 13

a. Governmental Conduct
Generally, Miranda warnings are necessary only if the detainee knows that they are being interrogated by a government agent. The warnings are not necessary when the detainee is being interrogated by an informant whom the defendant does not know is working for the police.
Inapplicable at Grand Jury Hearing
The Miranda requirements do not apply to an uncharged witness testifying before a grand jury, even if the witness was compelled by subpoena to be there.

Question 14

What is the custody requirement under miranda?

Answer 14

Determining whether custody exists is a two-step process: The first step (sometimes called the “freedom of movement test”) requires the court to determine whether a reasonable person under the circumstances would feel that they were free to terminate the interrogation and leave. All of the circumstances surrounding the interrogation must be considered. If an individual’s freedom of movement was curtailed in this way, the next step considers “whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.” Therefore, the more a setting resembles a traditional arrest (that is, the more constrained the suspect feels), the more likely the Court will consider it to be custody.

Question 15

What is the interrogation requirement under miranda?

Answer 15

“Interrogation” includes any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee. Thus, Miranda warnings are not required before spontaneous statements are made by a detainee. Note that routine booking questions do not constitute interrogation.

Question 16

Can you waive miranda rights?

Answer 16

d. Right to Waive Rights or Terminate Interrogation
After receiving Miranda warnings, a detainee has several options: do nothing, waive their Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney.
Do Nothing
If the detainee does not respond at all to Mirandawarnings, the Court will not presume a waiver, but neither will the Court presume that the detainee has asserted a right to remain silent or to consult with an attorney. Therefore, the police may continue to question the detainee.
Waive Rights
The detainee may waive their rights under Miranda. To be valid, the government must show by a preponderance of the evidence that the waiver was knowing and voluntary. The Court will look to the totality of the circumstances in determining whether this standard was met. But it appears that if the government can show that the detainee received Miranda warnings and then chose to answer questions, that is probably sufficient.
Invocation of Right to Remain Silent
To be effective, the detainee’s indication that they wish to remain silent must be explicit, unambiguous, and unequivocal (for example, the accused’s failure to answer does not constitute an invocation of the right to remain silent). If the detainee indicates that they wish to remain silent, the police must scrupulously honor this request by not badgering the detainee. In the Supreme Court’s only opinion directly on point, it allowed police to reinitiate questioning when the police waited a significant amount of time, the person was re-Mirandized, and the questions were limited to a crime that was not the subject of the earlier questioning.
Invocation of Right to Counsel
If the detainee unambiguously indicates that they wish to speak to counsel, all questioning must cease until counsel has been provided unless the detainee: (1) then waives their right to counsel (for example, by reinitiating questioning) or (2) is released from the custodial interrogation back to their normal life and 14 days have passed since release. A request for counsel must be specific (for example, indicate that the detainee desires assistance in dealing with interrogation). Allowing the detainee to consult with counsel and then resuming interrogation after counsel has left generally does not satisfy the right to counsel—counsel must be present during the interrogation unless the detainee has waived the right.

Question 17

What happens when miranda is violated?

Answer 17

Generally, evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule.

Question 18

Can you use a confession for impeachment?

Answer 18

Statements obtained in violation of the Miranda rules may be used to impeach the defendant’s trial testimony, but may not be used as evidence of guilt

Question 19

What happens when warnings are given after questioning and confession?

Answer 19

If the police obtain a confession from a detainee without giving them Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the “question first, warn later” nature of the questioning was intentional (that is, the facts make it seem like the police used this as a scheme to get around the Miranda requirements). However, a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent.

Question 20

What are the nontestimonial fruits of an unwarned confession?

Answer 20

If the police fail to give Miranda warnings and during interrogation a detainee gives the police information that leads to nontestimonial evidence, the evidence will be suppressed if the failure was purposeful, but if the failure was not purposeful, the evidence probably will not be suppressed.

Question 21

What is the public safety exception?

Answer 21

The Supreme Court has allowed interrogation without Miranda warnings when it was reasonably prompted by a concern for public safety (for example, to locate a hidden gun that could have caused injury to innocent persons).

Question 22

What is the 6th A right to counsel during pretrial identification?

Answer 22

A suspect has a right to the presence of an attorney at any post-charge lineup or showup. An accused does not have a right to counsel at photo identifications or when police take physical evidence, such as handwriting exemplars or fingerprints.

Question 23

What is the due process standard?

Answer 23

A defendant can attack an identification as denying due process if the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification.

Question 24

What is the remedy for pretrial identification?

Answer 24

The remedy for unconstitutional identifications is exclusion of the in-court identification.
a. Independent Source
A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if the in-court identification has an independent source. The most common independent source is opportunity to observe at the time of the crime (for example, the witness viewed the defendant close up for several minutes during commission of the
crime).
b. Hearing
Admissibility of identification evidence should be determined at a suppression hearing in the absence of the jury, but exclusion of the jury is not constitutionally required. The government bears the burden of proving that: (1) counsel was present; (2) the accused waived counsel; or (3) there is an independent source for the in-court identification. The defendant must prove an alleged due process violation