what triggers the Miranda warnings
1) CUSTODIAL
2) INTERROGATION
what are the Miranda warnings?
1) right to remain silent
2) anything say can and will be used against you
3) have right to attorney and
4) if cannot afford attorney, one will be appointed
what is custodial under Miranda
you are in custody if at the time of the interrogation, A REASONABLE PERSON WOULD NOT feel free to leave
what is the std to determine custodial?
reasonable person std. would a reasonable person feel not able to leave
what is not considered custodial?
1) probation interviews and
2) routine traffic stops
what is interrogation
any conduct where the police knew or should have known that they might ILLICIT INCRIMINATING RESPONSE from the suspect
is any questioning considered interrogation?
NO. NEED ILLICIT INCRIMINATING RESPONSE
what are miranda warnings not required before?
spontaneous statements
how may a person waive their miranda rights?
waiver must be
1) KNOWINGLY AND
2) VOLUNTARY
what is the test to determine if a person waived their miranda rights?
TOTALITY OF THE CIRCUMSTANCES
how must a person invoke their right to remain silent?
must do so UNAMBIGUOUSLY
i wish to remain silent
when may the cops reinitiate questioning after the D as invoked right to main silent?
if they
1) wait a significant amount of time,
2) D is read Miranda rights again,
3) and the questions are limited to a crime that was NOT SUBJECT OF EARLIER QUESTIONING
how must a person invoke their right to counsel
UNAMBIGUOUSLY
what happens when a person invokes their right to an attorney?
all questions MUST end until
1) the accused is given an attorney OR
2) the accused initiates further questioning
when does a break in custody happen
14 days, police can come back and ask D to waive miranda rights
when does 5th amendment right to counsel arise?
when person invokes Miranda rights and requests attorney
when does 6th amendment right to counsel arise
when adverse proceeding against D
is 5th amendment right to counsel offense specific?
NO thus applies entire process of custodial interrogation
is 6th amendment right to counsel offense specific?
YES
what is the significance if an attorney is merely appointed under 6th amendment?
if only APPOINTED
police can come back and ask D to waive 6th amendment right to counsel and talk about the crime which he was charged
3 ways to attack confession
1) involuntary
2) miranda violations
3) right to counsel
can involuntary confessions be used to impeach
no
can miranda violations be used for impeachment
YES
when does the right to counsel begin
once charged with a formal indictment
- can use for impeachment purposes
burden of proof
1) state must prove each element beyond reasonable doubt
2) defense 1 of elements then no burden on the D
- all other defenses by preponderance of evidence
6th amendment: can the P place informant in D’s cell after D has been indicted and deliberately elicits statements from D regarding the crime which was indicted for
NO. Violation of 6th amendment. Adversary proceeding has begun
6th Amendment: is it a violation to place an informant in the D’s cell, and not take action behind mere listening?
NO. must take some action behind mere listening, must be designed deliberately to elicit incriminating remarks.
is the 6th amendment right to counsel offensive specific
YES. thus if D charged for one crime can be questioned w/o counsel concerning an unrelated charge.
can a statement obtained in violation of 6th amendment right to counsel be used for impeachment
YES, like the miranda violations
are miranda warnings needed when an informant is placed in a cell with D
NO, b/c D does not know the person is a snitch, and not custodial interrogation.
do the miranda requirements apply to a W testifying before a grand jury
NO
are traffic stops generally custodial
NO.
if a D says he wishes to remain silent can the police come back several hours later and ask about a different crime
YES.
1) if the police immediately stopped upon request and did not ask again for several hours AND
2) the detainee was REWARNED of his rights AND
3) questioning was LIMITED TO A CRIME THAT WAS NOT SUBJECT TO EARLIER questioning
what if a detainee makes an unequivocal request to have a lawyer present during question?
all questioning must cease until detainee is provided with attorney OR
- initiates further questioning himself
- 5th amendment prevents ALL questioning
What does the 5th Amendment freedom from self-incrimination only apply to?
testimonial evidence. does not apply to physical evidence
Does 5th amendment freedom from self-incrimination apply to physical evidence
NO