Confessions

Question 1

(14th amendment) for self-incriminating statement to be admissable under the Due Process Clause it must be:

Answer 1

voluntary - as determined by the totality of circumstances

involuntary only if there is official compulsion

Question 2

14th amendment) if an involuntary confession is admitted into evidence, must the conviction be overturned?

Answer 2

the conviction need not be overturned if there is other overwhelming evidence of guilt.

Question 3

the Sixth Amendment guarantees the right to the assistance of counsel in:

Answer 3

All criminal proceedings, which include all critical stages of a prosecution after judicial proceedings have begun (after D has been charged)

Question 4

Does D have a right to counsel at Post-indictment interrogation (whether or not custodial)?

Answer 4

Yes

Question 5

Does D have a right to counsel at preliminary hearings to determine probable cause to prosecute?

Answer 5

Yes

Question 6

Does D have a right to counsel at arraignment?

Answer 6

Yes

Question 7

Does D have a right to counsel at post-charge lineups?

Answer 7

Yes

Question 8

Does D have a right to counsel at guilty plea and sentencing?

Answer 8

Yes

Question 9

Does D have a right to counsel at felony trials?

Answer 9

Yes

Question 10

Does D have a right to counsel at misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed?

Answer 10

Yes

Question 11

Does D have a right to counsel at overnight recesses during trial?

Answer 11

Yes

Question 12

Does D have a right to counsel at appeals as a matter of right?

Answer 12

Yes

Question 13

Does D have a right to counsel at at appeals of guilty pleas?

Answer 13

Yes

Question 14

Does D have a right to counsel at blood sampling?

Answer 14

No

Question 15

Does D have a right to counsel at taking of handwriting/voice exemplars?

Answer 15

No

Question 16

Does D have a right to counsel at precharge or investigative lineups?

Answer 16

No

Question 17

Does D have a right to counsel at photo identifications?

Answer 17

Does D have a right to counsel at

Question 18

Does D have a right to counsel at preliminary hearings to determine probable cause to detain?

Answer 18

No

Question 19

Does D have a right to counsel at brief recesses during D’s testimony at trial?

Answer 19

No

Question 20

Does D have a right to counsel at discretionary appeals?

Answer 20

No

Question 21

Does D have a right to counsel at parole and probation revocation proceedings?

Answer 21

No

Question 22

Does D have a right to counsel at post-conviction proceedings?

Answer 22

No

Question 23

Does the 6th amendment right to counsel apply to all charges against a D?

Answer 23

No - it is offense specific.

even though a D’s Sixth Amendment rights have attached regarding the charge for which they are being held, the D may be questioned regarding unrelated, uncharged offenses without violating.

Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.

Question 24

Sixth amendment right to counsel - waiver must be:

Answer 24

knowing and voluntary.

Question 25

Sixth amendment right to counsel - when violated at nontrial proceedings

Answer 25

harmless error rule applies

Question 26

Sixth amendment right to counsel - when violated at trial proceedings

Answer 26

automatic reversal of the conviction

Question 27

Sixth amendment right to counsel - can a statement made in violation be used at trial?

Answer 27

May be used to impeach D's contrary trial testimony Not admissible in prosecution's case-inchief

Question 28

When are miranda warnings required (generally)

Answer 28

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

Question 29

What are the miranda warnings?

Answer 29

1) right to remain silent 2) Anything the person says can be used against them in court 3) right to presence of an attorney; and 4) If the person cannot afford an attorney, one will be appointed for them if they so desire

Question 30

miranda rights - when is a person in custody?

Answer 30

custody if: 1) reasonable person under the circumstances would not feel free to terminate the interrogation and leave and 2) same inherently coercive pressures as station house questioning

Question 31

Miranda rights - what is considered an interrogation?

Answer 31

any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee

Question 32

After receiving Miranda warnings, what can a detainee do?

Answer 32

1) do nothing - the police may continue to question 2) knowingly and voluntarily waive rights - usually sufficient if detainee received warnings then chose to answer Qs 3) explicitly, unambiguously and unequivocally assert right to remain silent - police must honor request and not badger 4) unambiguously indicate they wish to speak to counsel - ALL questioning must cease unless: (a) then waives right to counsel or (b) is released and days have passed since release

Question 33

effect of evidence obtained in violation of Miranda?

Answer 33

Generally inadmissible May be used to impeach D's trial testimony, but not be used as evidence of guild

Question 34

miranda rights - public safety exception

Answer 34

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 35

standard for when a D can attack an identification as denying due process?

Answer 35

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 36

remedy for unconstitutional identifications

Answer 36

exclusion of the in-court identification

Question 37

A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if

Answer 37

the in-court identification has an independent source. T 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).

Question 38

How should admissibility of identification evidence be determined?

Answer 38

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.