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Flashcards in confessions Deck (36)
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1
Q

what triggers the Miranda warnings

A

1) CUSTODIAL

2) INTERROGATION

2
Q

what are the Miranda warnings?

A

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

3
Q

what is custodial under Miranda

A

you are in custody if at the time of the interrogation, A REASONABLE PERSON WOULD NOT feel free to leave

4
Q

what is the std to determine custodial?

A

reasonable person std. would a reasonable person feel not able to leave

5
Q

what is not considered custodial?

A

1) probation interviews and

2) routine traffic stops

6
Q

what is interrogation

A

any conduct where the police knew or should have known that they might ILLICIT INCRIMINATING RESPONSE from the suspect

7
Q

is any questioning considered interrogation?

A

NO. NEED ILLICIT INCRIMINATING RESPONSE

8
Q

what are miranda warnings not required before?

A

spontaneous statements

9
Q

how may a person waive their miranda rights?

A

waiver must be

1) KNOWINGLY AND
2) VOLUNTARY

10
Q

what is the test to determine if a person waived their miranda rights?

A

TOTALITY OF THE CIRCUMSTANCES

11
Q

how must a person invoke their right to remain silent?

A

must do so UNAMBIGUOUSLY

i wish to remain silent

12
Q

when may the cops reinitiate questioning after the D as invoked right to main silent?

A

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

13
Q

how must a person invoke their right to counsel

A

UNAMBIGUOUSLY

14
Q

what happens when a person invokes their right to an attorney?

A

all questions MUST end until

1) the accused is given an attorney OR
2) the accused initiates further questioning

15
Q

when does a break in custody happen

A

14 days, police can come back and ask D to waive miranda rights

16
Q

when does 5th amendment right to counsel arise?

A

when person invokes Miranda rights and requests attorney

17
Q

when does 6th amendment right to counsel arise

A

when adverse proceeding against D

18
Q

is 5th amendment right to counsel offense specific?

A

NO thus applies entire process of custodial interrogation

19
Q

is 6th amendment right to counsel offense specific?

A

YES

20
Q

what is the significance if an attorney is merely appointed under 6th amendment?

A

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

21
Q

3 ways to attack confession

A

1) involuntary
2) miranda violations
3) right to counsel

22
Q

can involuntary confessions be used to impeach

A

no

23
Q

can miranda violations be used for impeachment

A

YES

24
Q

when does the right to counsel begin

A

once charged with a formal indictment

- can use for impeachment purposes

25
Q

burden of proof

A

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

26
Q

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

A

NO. Violation of 6th amendment. Adversary proceeding has begun

27
Q

6th Amendment: is it a violation to place an informant in the D’s cell, and not take action behind mere listening?

A

NO. must take some action behind mere listening, must be designed deliberately to elicit incriminating remarks.

28
Q

is the 6th amendment right to counsel offensive specific

A

YES. thus if D charged for one crime can be questioned w/o counsel concerning an unrelated charge.

29
Q

can a statement obtained in violation of 6th amendment right to counsel be used for impeachment

A

YES, like the miranda violations

30
Q

are miranda warnings needed when an informant is placed in a cell with D

A

NO, b/c D does not know the person is a snitch, and not custodial interrogation.

31
Q

do the miranda requirements apply to a W testifying before a grand jury

A

NO

32
Q

are traffic stops generally custodial

A

NO.

33
Q

if a D says he wishes to remain silent can the police come back several hours later and ask about a different crime

A

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

34
Q

what if a detainee makes an unequivocal request to have a lawyer present during question?

A

all questioning must cease until detainee is provided with attorney OR

  • initiates further questioning himself
  • 5th amendment prevents ALL questioning
35
Q

What does the 5th Amendment freedom from self-incrimination only apply to?

A

testimonial evidence. does not apply to physical evidence

36
Q

Does 5th amendment freedom from self-incrimination apply to physical evidence

A

NO