CP Ch. 22- Custodial Interrogation Under the Fifth Amendment & Miranda Flashcards
1
Q
In the landmark case of Miranda V Arizona, the Supreme Court adopted rules designed to protect and accused’s :
A
Fifth Amendment rights.
2
Q
The Miranda Warnings inform the suspect that: (5)
A
- He has the right to remain silent;
- His statements can be used as evidence against him;
- He has the right to counsel;
- If he is indigent; counsel will be furnished to him at the government’s expense; and
- He may stop questioning at any time, for any reason.
Note: The last standard (#5) was not required by the original Miranda decision, but has become the standard over time in Massachusetts.
3
Q
Properly distinguishing when Miranda applies is essential. If officers fails to provide warnings when necessary:
A
a court will suppress the defendant’s statements.
4
Q
Miranda warnings are only required when a person is: (2)
A
1.in custody; and
- subjected to interrogation.
5
Q
“Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way”
A
Custodial Interrogation.
6
Q
Custody exists when the suspect is either: (2)
A
- Under arrest; or
- Significantly detained.
7
Q
Interrogation occurs if: (1) A law enforcement officer; (2):
A
(2) Communicates with the suspect by either:
-Express questioning; or
- The functional equivalent of express questioning;
- in an effort to obtain testimonial evidence.
Note: If one of these elements is absent, Miranda warnings are not required and the admissibility of a statement depends solely on whether it was voluntary.
8
Q
It is important for officers to know when suspects are in custody because, at that moment, they may not:
A
question them without Miranda warnings.
9
Q
Miranda:
In court, the defendant must prove that he was in custody at the time police interviewed him. The police then “bear the heavy burden” to prove:
A
the defendant waived his rights.
10
Q
True or false:
When officers arrest a suspect, that person is always in custody for Miranda.
A
True.
*Custody also occurs when a suspect is significantly detained.
11
Q
When officers arrest a suspect, that person is always in custody for Miranda. Custody also occurs when a suspect is significantly detained.- This occurs when:
A
a seizure has the qualities of an arrest- without actually being one.
12
Q
Comm Vs Groome provided the four factors that courts use to determine whether an unarrested suspect was in Miranda Custody: (4)
(Groom factors= think LIFF)
A
Groome Factors:
- Location - does the interrogation take place in a police dominated atmosphere?
- Interview style- is the style of the interview aggressive?
- Focus- do officers clearly accuse the suspect of a crime?
- Freedom to leave- Is the suspect free to end the interview by leaving the place of interrogation or by asking officers to leave?
13
Q
Miranda: Location of the interrogation:
Is a police station often custodial?
A
Yes.
ex. “within that atmosphere” the investigator “possessed all the advantages”- Courts continue to recognize the station as the prime location for physical and psychological pressure
14
Q
Comm vs Groome:
Were statements made to investigators admissible despite the investigators downplaying Groome’s need for a lawyer?
A
Yes.
SJC, in this particular case, found that Groome was not in custody when he asked about his need for a lawyer. Therefore, the Miranda safeguards- including the right to counsel- had not yet attached.
15
Q
Miranda:
Is the back of a cruiser typically custodial?
A
Yes.
ex. Two women were assaulted and robbed during the day. They identified the defendant Jones to a nearby officer. The officer asked defendant to sit in the back of his cruiser. With the victims repreating their accusations and Jones denying them, the officer began asking him questions. Jones attempted to leave, but the officer shut the door (which could not be opened from the inside). Although the officers tone was conversational, the overall circumstances created a custodial situation. The officer should have provided Miranda warnings.
16
Q
Interrogations/ interviews at the suspects home are usually noncustodial.
Are there cases where interrogations at the suspects home are custodial, and thus require miranda?
A
Yes.
ex. Individual notified police when he found child pornography on a personal computer he bought from Brian Rogers. Local police enlisted the help of the state police and, because rogers was a noncommissioned officer, the Naval Criminal Investigative Services. (NCIS)
NCIS requested that Rogers commander order him to return home. Upon arrival, Rogers found three officers questioning his pregnant wife. Although he was told he would not be arrested, Rogers was under a military order to be at home. Any member of the armed forces would has felt he lacked the freedom to leave and was compelled to answer questions. Rogers was in custody for Miranda, and his statements were obtained illegally because he never received proper warnings.
17
Q
A
18
Q
Business premises not necessarily custodial: a suspect is not in custody merely because police officers search his business premises with a warrant. Their search of the business does not make the encounter custodial, as long as police do not: (2)
A
-curtail the suspect’s movements, or
-use threatening language.
19
Q
A
20
Q
A
21
Q
Prison or jail not necessarily custodial: For an inmate to be in custody for Miranda, there must be :
A
some additional restraint on his freedom that prevents him from leaving the scene of questioning.
- in other words, the prisoner must be in custody beyond the confines of ordinary prison life.
22
Q
A
23
Q
Does police interview style affect whether Miranda custody exists?
A
Yes.
Conversational and non aggressive
Vs
Aggressive and accusatory
24
Q
Does custody automatically exist when a suspect confesses?
A
No.
-Courts assess whether there was a “fundamental change in the atmosphere.”
Ex. Initially the defendant’s son was the suspect in an arson that killed 5 people. Kathleen Hilton, his mother, voluntarily accompanied police to the station and was calmy questioned. The SJC insisted that she was still not in custody when she confessed, because th investigator wisely continued his nonconfrontational approach (“tell me more.. you sound upsets..etc”)
The setting did becomes custodial, however, when a detective from the Fire Marshall’s officer entered then room. His accusatory, rapid fire questions transformed the interview. This detective made a mistake by not providing Miranda warnings. Hilton’s statements during this portion of the interview were suppressed.
25
Is an officer's uncommunicated suspicion a factor of custody for miranda?
No. It is never a factor.
Ex. Officer knew he had probable cause and would be arresting the suspect for OUI, but still asked him to perform field sobriety tests without giving him Miranda. This is valid.
*However, a clear accusation typically does create custody
26
As soon as police interviewers obviously accuse their suspect, officer must administer:
Miranda warnings.
A clear accusation typically does create Miranda.
ex custody began when detective changed his conversational style and accused Molina of lying about a shooting.
27
What is the best way for officers to avoid "custody" for purposes of Miranda?
Tell the suspect he is free to leave.
28
Does being detained, without more, typically create Miranda custody?
No.
Ex. Comm Vs Tejada (killed wife and kids case)
29
Explain each Groome factor for Miranda: (LIFF)
1. Location
2. Interview style
3. Focus
4. Freedom to leave.
1. Does the interrogation take place in a police- dominated atmosphere?
1. Is the style of the interview aggressive?
3. Do officer clearly accuse the suspect of a crime?
4. Is the suspect free to end the interview by leaving the place of interrogation or by asking officers to leave?
30
Jose Tejada approached a stranger in his neighborhood and asked to be taken to the police because he killed 3 people. Neighbor called police instead.
Tejada repeated to police what he had told his neighbor, and added that he tried to kill himself. He was asked about the location of the shooting and what he did with the weapon. He seemed anxious but cooperative.
The officers frisked and handcuffed Tejada, then took him to the address he provided. Receiving no answer when they knocked, officers broke down the door to see if anyone needed assistance.Tejada's wife and two children were found shot to death upstairs.
Were officers required to give Tejada Miranda when they first spoke with him?
No. Although certain statements after Tejada was handcuffed and placed in the cruiser were suppressed, officers were not required to give miranda when they first spoke with him. In reviewing the Groome factors, the SJC found the police questioning was non-custodial:
1. The location was non-coercive (sat on a curb in a public parking lot)
2. The interview questions were open. (What happened? Who did you kill? Where do you live? why did you do it? where is the gun?
3. The focus (of the questions) were not on Tejada as a suspect: The officers did not accuse him.
4. Free to leave: Of course Tejada was detained, but this one factor is typically not enough for Miranda custody. Tejada's possible intoxication and suicidal thoughts did not make his statements involuntary either. Tejada had no difficulty understanding or speaking.
31
When officers arrive on scene, do officers need to provide blanket warnings of Miranda to citizens?
No.
ex. "shes been shot, better call and ambulance"
cop: What happened?
"she was going to throw me out so i shot her."
No miranda necessary there
32
Most investigative detentions do not result in Miranda custody because they fall short of being:
an arrest or a significant detention.
33
Most investigative detentions do not result in Miranda custody because they fall short of being an arrest or a significant detention.
As a result, officers may detain suspects and avoid Miranda warnings, provided they: (3)
1. Ask a reasonable number of questions to learn about the suspects identity and whether he committed a crime.
2. Understand that the suspect is not obligated to answer; and
3. Release him after a reasonable amount of time if probable cause has not developed.
Note on reasonable amount of time: There is no set time period for a detention. It must take no longer than necessary to investigate the circumstances giving rise to the officers suspicions.
34
Comm Vs Cawthron:
Detectives see hand to hand. $300 oxy pills sold for $600
Findings:
Detective were not required to initially give the defendants Miranda warniings. The defendants were not told they were suspected of a crime, and their discussions were one- on -one in an open, public space. The fact that they were arrested at the end of the interview did not mean they had been in custody.
35
When an investigative detention involves arrest-like restraint- e.g. handcuffs, drawn weapon, or prone positioning- Miranda custody (blank):
exists.
Miranda safeguards apply as soon as a suspect's freedom is "curtailed to a degree associated with a formal arrest."
36
Officers should rarely advise motorists of their Miranda rights because most traffic stops are: (2)
brief and public.
The same rules for investigative detentions apply roadside.Officers may ask a reasonable number of questions.
37
Should officers give Miranda rights to motorists before directing them to perform sobriety tests, including reciting the alphabet?
No.
38
Is restraint for medical treatment custody for Miranda?
No.
Ex. accident scene, defendant said he had too much to drink to an EMT. The EMT told an officer, who approached defendant as he was being loaded into an ambulance, strapped to a gurney. Defendant admitted to officer that alcohol had affected his driving. No Miranda warnings were given. Since the physical restraint was not applied by law enforcement, a reasonable person in the defendant's position would have understood that he was being detained due to his medical condition. The questioning was brief and occurred in public with EMT's present, which lessened the possibility of police domination. The officer also did not tell the defendant he was a suspect.
39
Pre-arrest handcuffing will usually create miranda custody. However: during a traffic stop, the defendant approached the officer- in an agitated state- despite directions to get back in his car. The officer handcuffed the defendant, telling him it was for the officer's safety, and asking "Whats happening?". This general question, despite the handcuffs:
was not custodial interrogation under these circumstances.
40
Is a telephone conversation between an officer and a suspect, on a recorded line from the police station, considered custodial for miranda.
No. Never.
suspects freedom is not affected because he can always just hang up
41
Undercover officers do not need to provide miranda warnings because their targets experience the opposite of:
police coercion.
42
What is Miranda's "essential ingredient"
a police- dominated atmosphere
43
Interrogation exists when officers engage in questioning (or its functional equivalent) to get:
testimonial evidence.
44
Express questions directly ask for information about:
a crime.
Ex. questions at scene- "Where do you live?"- should have been preceded by miranda BECAUSE police were trying to link defendant to drugs in the apartment)
45
Express questions directly ask for information about a crime. On the other hand, when a suspect speaks without being questioned, his statement is:
not the product of interrogation.
46
Comments that police are lawfully in a position to overhear are not prompted by questioning. Therefore, they do not have to be preceded by:
Miranda warnings.
ex. troopers, helping the defendant make a phone call after booking him for drug distribution, overheard him say to his wife: "I got busted. They got most of it".
47
The (blank) of interrogation covers words or actions that the police know are likely to produce an incriminating response.
"functional equivalent"
48
Four examples of the "functional equivalent" of interrogation:
1. Stage police conversations
2. Provocative police comments (that entice a suspect to incriminate himself= interrogation)
3. Displaying object
4. Forcing a meeting between co- defendants
49
Functional equivalents of interrogation: Staged police conversations
"Christian burial speech" as officers transported suspect who has already expressed his right to counsel and officers agreed with his attorney not to question him.
Proper or improper?
Improper.
speech was a functional equivalent
- the officers comments had the same effect as direct questioning because they were designed to elicit an incriminating response. Defendant's statements were suppressed.
50
Functional equivalents of interrogation: Staged police conversations
While transporting suspect, who had expressed his right to remain silent, Officer says to partner in conversation, that he hopes a child doesn't find the murder weapon before police can locate it. Defendant hears this, then confesses and then leads police to the gun.
Was this admission induced by police?
No.
Court found that this brief exchange did not amount to interrogation because the officers did not intend to trigger Innis conscience.
51
Functional equivalents of interrogation: provocative police comments
In a holding cell: Defendant said:
"the bitch did it"Officer responded " you mean to tell me that there were two dudes in the car and the girl did the stabbing? suspect responded" Yeah, why not? what just because shes a girl she can;t stab someone?"
The first statement,"the bitch did it" was spontaneous. However,the officer should have known that his response was likely to:
provoke and incriminating response.
52
Functional equivalents of interrogation: provocative police comments
Foley was arrested for beating his wife. While in handcuffs in the cruiser, he was screaming. An officer commented, "Are you having a rough day man?" In response, Foley yelled, "I choked her our, but she deserved it!"
Valid or invalid?
Valid
the officers question was designed to calm Foley, not to incriminate him.
53
Functional equivalents of interrogation: Displaying Object
police executed a search warrant at Rubio's apartment. Officers arrested Rubio and, without saying anything, held an open female purse filled with cocaine in front of Rubio's face as they were leading him out of the apartment. Rubio immediately said the drugs belonged to him and not his girlfriend. This display was:
the equivalent of an accusatory police question (as if saying "How do you explain this?")- so it needed to be preceded by Miranda warnings.
54
Functional equivalents of interrogation: Forcing a meeting between co-defendants:
Defendant Brant refused to speak with police, so officers told Brant that his co-defendant had just implicated him. They then put him in a room with his accomplice. Afterwards, Brant confessed. The court:
disapproved because investigators had used and indirect form of interrogation as an "end run" around Brant's right to silence.
55
Miranda uphold the privilege against (blank), which only applies to testimonial evidence.
self incrimination.
56
Miranda uphold the privilege against self incrimination, which only applies to:
testimonial evidence.
*Miranda does not cover police action designed to obtain *nontestimonial* evidence (DNA samples, Field Sobriety Tests, Voice and Handwritting exemplars, Gun License- "produce your LTC")
57
Miranda does not cover police action designed to obtain nontestimonial evidence. This includes: (2)
1. Physical evidence
And/or
2. Statements by the accused that do not assert his knowledge or beliefs
58
Is ordering a suspect to produce his gun license considered testimonial?
No. It is NONtestimonial
59
Obtaining physical evidence is nontestimonial because it does not force the suspect to:
reveal his thoughts.
60
Obtaining physical evidence is nontestimonial because it does not force the suspect to reveal his thoughts.
4 examples of physical nontestimonial evidence:
1. DNA samples
2. Field Sobriety Tests
3. Voice and handwriting exemplars
4. Gun License (ordering a suspect to produce his gun license)
61
Physical nontestimonial evidence:
Important point: Police may use reasonable force to perform non-intrusive tests over an arrestees objects- as long as they do not later:
testify to his refusal.
** The Fifth Amendment and Article 12 do not protect against the production of physical evidence- e.g, firearms residue, fingerprints, DNA, etc.- where the goal of the test is to obtain evidence independent of the suspect's thoughts. Officers can use"reasonable force" to obtain this (provided they already have probable cause)
However, the Fifth Amendment and article 12 DO prevent officers from testifying at trial that the defendant refused to cooperate with police- since no-cooperation DOES reveal the defendant's inner thoughts about his ability to pass an evidence gathering test.
62
Verbal nontestimonial evidence
When and officer's questions are not designed to produce testimonial evidence, Miranda warning are unnecessary:
3 examples:
1. Consent (requesting consent to search is not interrogation)
2. Alphabet sobriety tests
3. Post- arrest identification.
63
Routine booking questions about one identity- e.g. address, cocial security numbers, date of birth- seek nontestimonial information, so Miranda does not apply.
What is a booking question that is possibly testimonial?
employment.
64
Verbal non testimonial evidence:
During booking, the defendant was asked a routine question, "Are you injured?" He only said that he had been hit on the side of the head. This statement was important evidence at trial to justify stabbing the victim by claiming severe injuries. Since his booking response produced incriminating information, the defendant insisted that he should have been given Miranda Warnings.
This booking question was:
clearly non testimonial.
The defendant's physical well being is important to the police in all arrests because they are liable for a prisoner's medical condition.
65
True or false?
When public safety is at stake, officers may briefly interrogate a suspect in custody without administering Miranda warnings.
True.
66
The Public Safety Exception to Miranda:
Audiobooks: Author calls the Public safety Exception the "blank" exception
the "Wheres the gun!?" exception
67
In addition to the "Wheres the gun?" exception, the Public Safety Exception to Miranda also covers:(3)
1. Learning about the risk posed by drug paraphernalia (ex explosive chemicals to make meth)
2. Learning whether a suspect of the opposite sex is armed (impractical to wait for female officer to arrive to determine if the female suspect had gun in her pants- "You better tell us if you have anything because we're going to find it")
3. Learning whether and armed accomplice left the scene (Trooper Carbonnier example- officers questions were clearly designed to discover whether there were other dangerous individuals nearby)
68
The Public Safety Exception applies with equal force to:
juveniles.
69
True or false:
Miranda never covers questions from private citizens.
True
The warnings only protect the accused in a police dominated situation.
70
Does Miranda cover interrogations in foreign countries by foreign officials?
No.
ex. defendant murder suspect fled to Canada; his statements to Canadian police were voluntary; Miranda was not an issue
71
Beyond the police, Miranda applies to other:
government investigators whose questions may lead to criminal punishment.
Note: Juvenile corrections officials, even for private agencies, must give Miranda warnings when investigating crime
72
Beyond the police, Miranda applies to other government investigators whose questions may lead to:
criminal punishment
ex. defendant entitled to warnings from draft board secretary concerning his selective service compliance because his answers might lead to prosecution.
73
Should school officials give Miranda warnings prior to questioning a student about a school incident?
No. They should not.
74
How must Miranda Warnings be waived?
Elements of a valid waiver: (3)
1. Proper communication
2. Voluntary & *Knowing*
3. Willing to speak.
Police properly communicate the Miranda warnings; The suspect understands his rights to silence and counsel; and the suspect indicated that he will talk to police.
75
Miranda warnings
"If you cannot afford a lawyer and want one, a lawyer will be provided by..."
The commonwealth
before questioning, at no cost to you.
76
Should officers recite Miranda warnings from memory?
No.
On the street: use laminated card
In the station: Use the proper Miranda Form.
77
Must miranda warnings be conveyed in a language that the defendant understands?
obviously.
78
True or false:
Officers should no minimize Miranda's importance as "just a formaility"
True.
79
Miranda Waiver:
A waiver must be voluntary and knowing: (standard of proof)
beyond a reasonable doubt.
80
Miranda must be voluntary and knowing beyond a reasonable doubt.
However, police are not obligated to: (3)
1. Inform a suspect about the subject of the interrogation
2. Provide legal advice
3. Inform a suspect that he as already been charged
81
Voluntary & Knowing
The best practice is to obtain and explicit statement that the suspect:
understands his rights and waives them.
82
Police arrested the defendant for a minor offense and then, following a valid Miranda waiver, interrogated him about a murder without telling him that he was a murder suspect.
Proper or improper?
Proper.
"we have never read the constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak"
83
Voluntary & Knowing Miranda Waiver:
Police should not help suspects decide whether to waive their rights. At the same time, they may not mislead the accused about:
the meaning of a particular right.
84
Does refusing to sign a written miranda waiver nullify a suspects verbal waiver?
No
ex although defendant did not sign the waiver form, the defendant agreed to speak to officers about his girlfriend's death- this was a totally acceptable waiver.
85
Must officers describe their miranda waiver interaction in their report?
Yes.
86
Officers must describe their miranda waiver interaction in their report. In particular, note any signs of:
intoxication or withdrawal.
87
True of false?
Officers should not say, or even imply, that a suspects statement will remain confidential.
True.
88
Does a suspects belief that he will get a deal- absent a government promise- nullify his miranda waiver?
No.
ex defendant waived his rights and mentioned that he was considering cooperating in exchange for a deal; he then described his cocaine business; police never promised him anything for his waiver, his his confession could be used against him at trial.
89
Parent or Interested adult:
Failure to have a parent or interested adult present to assist a child age **12 or 13** will:
invalidate any Miranda waiver. No exceptions.
90
Parent or Interested adult:
A waiver for a child 14,15,16, or 17 requires:
adult assistance.
*unless youth it "highly sophisticated"
91
Parent or Interested adult:
A waiver for a child 14, 15, 16, or 17 requires adult assistance, unless the youth is:
"highly sophisticated"
92
Parent or Interested adult:
Is there a right to adult consultation, prior to a Miranda waiver, once a person turns 18?
No.
At that age, an individual is considered an adult offender
93
Parent or Interested adult:
Parent preferred. Police should first try to locate a parent, then seek an:
Interested adult.
*deliberately avoiding a parent, in favor of an interested adult instead, is improper. However, there is "no minimum search requirement" before police may seek another adult.
94
Parent or Interested Adult:
An interested adult must be:
At least 18 years old. No exceptions.
95
Parent or Interested Adult:
The interested adult must not be :
-physically or mentally incapacitated,
-or under the influence of alcohol or drugs.
96
Parent or Interested Adult:
The interested adult must be likely to act in the best interest of the Juvenile. However, the adult does not have to be completely free of:
conflicting loyalties.
ex. although the father had argued with his son and called police he still could serve as an advocate. The police did not observe " continuing animosity" between father and son prior to the boy's murder confession
97
May a parent or other adult waive Miranda rights on behalf of a child?
No.
Ultimately, the child must decide.
98
Mandated interaction:
Until the parent or adult arrives, police must avoid:
talking with the juvenile.
-Once there, the best practice is to offer private consultation. Moreover, police MUST honor any request by a juvenile or adult to meet privately, even in the middle of an interview.
99
Parent or Interested Adult:
Must the child AND parent understand the Miranda warning?
Yes.
100
Mandated interaction:
Age 14, 15, 16,or 17: Must be provided a (blank) to consult with interested adult.
"Meaningful opportunity"
-The juvenile does not have to actually seek the adults advice. Police must give the juvenile an *opportunity* to consult.
101
Mandated interaction:
Age 12 or 13: Must be given an (blank) to discuss their rights with an adult.
"Actual opportunity"
Young juveniles must actually discuss their rights with an adult. In other words, officers ARE expected to actively promote an interaction between adults and young juveniles.
102
Mandated interaction:
A 16 year old gave an incriminating statement linking him to a brutal murder of a homeless man. Prior to his confession, police asked his mother if she wanted to talk with her son about the rights. The son told her that it was "ok" and began to speak. This waiver was:
Valid.
103
Mandated interaction:
Alfonso, who was 15 years old, was detained at a friends house in connection with the theft of firearms. A detective read Miranda rights, then asked Alfonso if he wanted to have his mother brought tot he scene. Alfonso said "No". He confessed. his waiver was:
Inadequate.
A juvenile in trouble may be too embarrassed to request help. This is why police must get a parent/adult on scene BEFORE seeking a waiver.
104
A Miranda waiver lasts for (blank), and the police are not required to repeat Miranda whenever a defendant implicates himself.
a reasonable amount of time.
105
Are officer required to re-administer Miranda warnings and rights before asking questions about different offenses?
No.
106
Following a valid Miranda waiver, a suspect may consent to a polygraph examination.
The examiner may offer his opinion that the suspect is not telling the truth, but may not:
intimidate him.
ex. defendant agreed to polygraph; when told he was probably lying, he cried and admitted to killing his girlfriend's baby- invalid
107
Post arrest, the police (blank) hours to interview the defendant about any subject. The clock starts at the moment of arrest.
6 hours
108
Post arrest, the police 6 hours to interview the defendant about any subject. The clock starts at:
the moment of arrest.
109
Post arrest, the police 6 hours to interview the defendant about any subject. The clock starts at the moment of arrest.
The 6 hour covers: (2)
1. Discussions about any offense
2. Discussions initiated by the defendant.
110
There are 6 exceptions to the 6 hour rule:
1. **Valid waiver** (separate from Miranda) (it must include the time when the defendant can be brought to court)
2. **Out of state arrest** (murder arrest in california not covered by this rule when trooper flew out to bring him back to Mass)
3. **Medical attention** (the time required to treat the defendant's injuries does not count)
4. **Incapacitation**( 6 hours period commences at the point of sobriety)
5.**Emergency**(the time that officers spend away from the defendant during an unanticipated emergency(e.g. natural disaster) does not count)
6. **Consent search** (a police request for consent to search is outside this rule because it is not considered part of the interview)
111
All custodial interrogations, and any interrogation at the station, MUST be:
recorded.
DiGiambattista Rule
112
DiGiambattista Rule
Stationhouse: Most departments have a recording system for stationhouse interrogations. DiGiambattista is clear that any incriminating conversations at the station- even those where the supect is not issued Miranda warnings- must be:
preserved.
Consequence: The failure to comply with DiGiambattista Rule results in the judge telling jurors that police testimony about an unrecorded statement should be "considered with great care." This cautionary instruction, while certainly not helpful, is less harmful than suppressing the defendant's statement all together"
*the jury instruction is mandated regardless of reason- even if the defendant refused to be recorded!
112
DiGiambattista Rule:
Field Custody: DiGiambattista insists all custodial interrogations be recorded- regardless of where they take place. Officer equipped with body worn cameras can easily accomplish this rule.
If a suspect is not in custody or interviewed at the station, police.
do not have to record.
113
The failure to comply with the DiGiambattista Rule results in:
The judge telling jurors that police testimony about an unrecorded statement should be "considered with great care." This cautionary instruction, while certainly not helpful, is less harmful than suppressing the defendant's statement all together"
*the jury instruction is mandated regardless of reason- even if the defendant refused to be recorded!
-Officers should always try to record custodial and stationhouse interrogations, but they should not avoid interviewing just because they do not have a recording device available.
114
Record any interrogation involving an interpreter when:
practical.
-this will allow the court to fairly assess whether they accused received an accurate translation of police questions.
115
As long as there is a (blank), officer do NOT have to inform a suspect that he is being recorded at the station.
conspicuous sign.
Do not ask for permission to record. The sign is about notification, not permission.
Notes:
-Record the ENTIRE interview
-Explain any time the recorder is shut off
116
Interview/ Interrogation at the station:
In the event that a suspect objects to being recorded, investigators should:(2)
1. Emphasize that the recording protects the suspect
2. Agree to turn off the recorder after the suspect completes a Miranda Waiver
117
Officers do not have to record certain interviews: (2)
1. non- suspects
2. Intelligence gathering (flipping a drug dealer/user, informants, etc)
118
Any reasonable expression of a suspect's wish to remain silent or be represented by counsel:
invokes his rights.
*A suspect may verbally or nonverbally invoke his right to silence.
119
May a suspect nonverablly invoke his right to silence?
Yes.
ex. negative head shake invoked defendant's right to silence.
120
In an investigation, when the suspect hears Miranda warning for the first time, the police should not require that he invoke silence with:
"the utmost clarity"
If something like a head shake is unclear, police may ask one follow up question to clarify
121
In an investigation, when the suspect hears Miranda warning for the first time, the police should not require that he invoke silence with "the utmost clarity".
On the other hand, (blank) is expected when a suspect wants to stop his interrogation *after* he already waived his rights and answered questions.
"heightened clarity"
Ex. Toward the end of a three hour interrogation, in which costa flip-flopped about his whereabouts during a murder, he said "I dont want to be a canary... I won't squeal on my friends". He then confessed. While Costa might have been reluctant to talk, he never invoked his right to silence.
122
Is selectively answering questions a request to remain silent after an initial waiver?
No.
123
The defendant waived his Miranda rights. In the middle of the interview, he was confronted with evidence. He did not answer questions for 30 minutes. After this period of silence, the defendant talked about his involvement in the murder. Did this delay constitute a right to remain silent, that should have been respected by the investigators?
No.
The delay did not constitute a request to remain silent; it reflected the defendant's emotional realization that he had been caught.
124
Police do not have to honor, but should (blank), a suspect's pre-custody request for a lawyer
clarify.
Comm vs Molina
125
Pre-custodial request for counsel.
Comm Vs Molina
After a shooting, police asked Alex Molina if he would come to the station. Trooper Serrano provided miranda warnings. When asked if he would talk, Molinda said, "Whatever you say" and signed the waiver form. Serrano asked general questions. Molina started to get nervous when the questions got more targeted. He said "If i had known it would be like this, I would have brought an attorney because I truly don't even known what happened." Serrano told Molina they already knew about the shooting, so if he lied, he would look suspicious. Molina continued to talk and was eventually charged.
Was this valid?
Yes. Police do NOT have to honor (but should clarify) a suspect's *pre-custody* request for a lawyer
When Molina mentioned counsel, he clearly was not in custody for Miranda. The fact that Serrano read Molina his rights did not mean he was in custody. After all, Molina had voluntarily come to the station, and the questioning was conversational, not aggressive. At the point he mentioned a lawyer, the SJC held that Molina did not have a RIGHT to counsel.
126
Comm Vs Molina
Pre-custodial request for counsel:
The lessons from Molina that officers should:(2)
1. Never downplay a citizen's need for counsel unless there is no probability that the person will becomes a suspect; and
2. Clarify any ambiguous, pre-custodial requests for counsel.
127
Post- custodial Request for counsel:
To get a valid waiver, do officers have to explicitly ask a suspect if he wants a lawyer?
No.
128
A suspect's attempt to contact his attorney invokes:
his right to counsel.
even unsuccessful calls to an attorney.
ex defendant had already invoked his
129
A suspects attempts to contact his attorney invokes his right to counsel. A suspects (blank) of his desire for counsel works too.
reasonable expression
Current desire for counsel= sufficient
Future desire for counsel= insufficient (ex. an accused who says he might seek souncel is not the same as one who says he *wants* counsel)
130
Post- custodial Request for counsel:
The defendant, whose English proficiency was limited, received Miranda warnings. He told the officer that he needed a translator, and asked to consult with a friend "who was an American and a paralegal". The court held that the officer should have understood this as:
a request for counsel.
131
Police should typically (blank) to clarify a suspect's post- custodial request for counsel.
ask one follow- up question.
132
Does a suspect ever have to give a reason for requesting silence or an attorney?
No.
133
Ramon Santana was arrested for a double murder. Trooper Beaupre read Miranda warnings. When beaupre asked if he would speak, Santana said, "Ill talk, but I'm not signing anything without a lawyer." Beaupre asked Santana to sign the waiver. Santana remarked "I'm not signing anything else." He answered questions for several hours.
Proper or improper?
Proper.
Police may get a waiver from a suspect who only requests counsel for the limited purpose of making a written statement.
134
Police response to attorney contact:
Police must immediately tell a suspect that his attorney is trying to contact him, and:
recommends that he not talk to police.
Note: Police should verify that the person is an attorney.
135
Police response to attorney contact:
Police must (blank) tell a suspect that his attorney is trying to contact him, and recommends that he not talk to the police.
immediately.
Note: This rule only applies to an attorney.
136
Police response to attorney contact:
Do police have an obligation to inform a suspect that a third party intends to retain legal counsel?
No.
ex defendant's uncle called and told arresting officer that defendant's mother was arranging for a lawyer for her son; officer did not have to relay this information to the defendant
137
Police response to attorney contact:
Who decides whether the suspect speaks with an attorney?
The suspect (defendant).
If the suspect wants help, police must suspend questioning until a meeting occurs or until a reasonable amount of time has passed.
138
Police response to attorney contact:
The (blank) decides whether to speak with his attorney
Defendant (suspect)
ex. Defendant murdered his five year old girl. His appointed attorney spoke with the officer administering a polygraph. The attorney requested that the polygraph and all questioning cease. The officer honestly informed the defendant of his attorney's wishes but said that it was his choice. The defendant agreed to continue and ultimately confessed. The SCJ affirmed the defendant's conviction and commended the professionalism of the investigator.
139
True or false?
The defendant may still choose to speak with police after he meets with counsel.
True.
ex defendant stabbed two people after a night of cocaine use. Three days later, he voluntarily went to the station. At one point, counsel arrived. A detective told the defendant, he met privately with his lawyer
While leaving, the attorney tolh police that defendant had been instructed not to answer any questions. Afterwards, defendant said he wanted to talk with Detective Laster, whom he trusted. Laster read the defendant his rights, but defendant was concerned that his attorney might be angry. Another detective said: Well, ultimately, you're your own boss". Defendant waived his rights and confessed. Once his lawyer left, the detective did nothing wrong by asking the defendant how he wanted to proceed.
140
Defendant stabbed two people after a night of cocaine use. Three days later, he voluntarily went to the station. At one point, counsel arrived. A detective told the defendant, he met privately with his lawyer
While leaving, the attorney tolh police that defendant had been instructed not to answer any questions. Afterwards, defendant said he wanted to talk with Detective Laster, whom he trusted. Laster read the defendant his rights, but defendant was concerned that his attorney might be angry. Another detective said: Well, ultimately, you're your own boss". Defendant waived his rights and confessed.
Valid or invalid?
Valid.
Once his lawyer left, the detective did nothing wrong by asking the defendant how he wanted to proceed.
141
The rule concerning attorney contact does not apply in certain situations: (3)
1. Officers need not inform a suspect about past conversations.
2. Officers do not have to report that an attorney ordered them to be silent.
3. Officers are not expected to volunteer information
142
The rule concerning attorney contact does not apply in certain situations: (3)
1. Officers need not inform a suspect about past conversations.
(read example)
Once Collins learned he was the target of a sexual abuse investigation, he retained counsel. The lawyer said he wanted to be present at any interview. Scheduling difficulties with this attorney prompted the detective to go out and arrest Collins. The detective did not need to tell Collins about his Lawyer's wishes in order to obtain a valid Miranda waiver. It was the attorney's obligation to speak with his client about that.
143
The rule concerning attorney contact does not apply in certain situations: (3)
2. Officers do not have to report that an attorney "ordered" them to be silent. An attorney can expect that police will communicate his *recommendation* that his client stay silent, but not that:
police will abide by his directive!
The former is legal advice (recommending it); the latter attempts to invoke the client's right to silence.
144
The rule concerning attorney contact does not apply in certain situations: (3)
3. Officers are not expected to volunteer (blank).
information.
Phinney voluntarily accompanied detective to the station. He was told that he could leave. He waived his Miranda rights. During the interview, Phinney's attorney called. The detective's did not mention that Phinney was being interviewed because the attorney only asked about whether the police were thinking of searching his client's home. Investigators did not tell Phinney about his lawyer's call. Because his lawyer had not specifically asked about Phinney's whereabouts or whether he was being interrogated, the police had no obligation to volunteer this information.
145
Once a suspect invokes his right to silence and/or counsel, authorities must:
immediately terminate any interrogation.
146
Is a detainee's post-arrest decision to stay silent or talk with an attorney is inadmissible at trial.
There are 3 exceptions to this rule: (3)
1. The defendant, at trial, claims to have told police, at the time of his arrest, the story he is testifying to.
2. The prosecutor needs to explain why the police interview ended abruptly because, at trial, the defendant suggests that it ended because of police incompetence or misconduct
3. The defendant claims his post-arrest silence supports his insanity.
147
Once a suspect validly waives his Miranda rights, the police may question him until he expressly (2)
1. states he wants an attorney; or
2. does not wish to talk anymore
148
Right to Remain Silent:
The defendant was arrested for robbery and exercised his right to remain silent. The interrogation stopped. Over two hours later, another officer re-advised the defendant of his rights and questioned him about a different crime. The defendant confessed. The Supreme Court held that the interrogation was lawful because police (3)
1. "scrupulously honored" the suspect;s right to remain silent when first exercised;
2. Began the second interrogation after a significant time lapse; and
3. Properly advised the suspect of his Miranda warnings before both investigations.
Important Note: while the investigators in Mosely discussed a different crime when they re-approached the defendant, this was not central to the Supreme Court's decision and does not seem to be required in Massachusetts
149
Right to Remain Silent
When a suspect invoked his right to remain silent, are police automatically prohibited from later questioning?
No. In Michigan v Mosely, the police:
1. "scrupulously honored" the suspect;s right to remain silent when first exercised;
2. Began the second interrogation after a significant time lapse; and
3. Properly advised the suspect of his Miranda warnings before both investigations.
Supreme Court held that the interrogation was lawful
150
Right to Remain Silent:
Police must honor the suspect's initial silence. Only re-approach a defendant after a :
2-hour interval.
The SJC has never specified a minimum time period, although a two hour interval was approved in Michigan v Mosely. 35 minutes was too short in a different case
151
Right to Remain Silent:
Must the suspect be properly advised of his rights each time?
Yes.
152
Right to SILENCE:
Once suspect is released, officers may (blank) try to question him.
**Immediately**
The waiting period only applies while a suspect remains in custody.
***Do not confuse this with Right to counsel, which is 14 days after suspect is freed from custody
153
Right to Counsel
*Edwards* V Arizona created a clear rule for law enforcement: Once a suspect invokes his right to counsel under Miranda: (2)
1. Stop interrogation
2. Make counsel available
The current investigation must stop; and the suspect may not be approached for further interrogation until counsel has been made available to him.
*The supreme court adopted this rule "to prevent police from badgering a defendant into waiving his previously asserted Miranda rights
154
Right to Counsel
The Edward's Rule is not offense specific: Once a suspect invokes his right to counsel regarding one offense, he may not be re-approached regarding any other offense unless:
counsel is present.
155
Right to Counsel
The Edwards rule applies for as long as:
the suspect remains in custody.
156
Right to Counsel
There are only three exceptions to the Edwards rule.
1. First, a defendant's statement is admissible in response to notification about a police procedure (ex incriminating statement made in response to DNA swab after already invoking right to counsel= admissible)
2. Second, if a defendant initiates conversation, police may resume questioning following a new waiver.
3. Third, at least 14 days after the defendant is freed from custody, the police may approach him and seek a new waiver.
157
Right to Counsel:
Edwards Rule: Exceptions
Police may approach and seek a new waiver no less than (blank) after the defendant has been freed from custody.
14 days.
Requiring that police observe a 14 day buffer ensures "plenty of time for the suspect to get re-acclimated to his normal life, to consult with his friends and counsel, and to shake off any residual coercive effects of his prior custody.
158
Right to Counsel:
Edwards Rule:
Once a defendant has invoked his right to counsel, may police resume questioning following a new waiver, if the defendant is the one who initiates the new conversation?
Yes. This is an exception to the Edwards rule (#2)
159
Consequences of a Miranda Violation:
Any statement of physical evident obtained in violation of Miranda will be:
Suppressed.
However, even though police violate a suspect's Miranda rights, they may still be able to offer a later, properly obtained statement if:
1. *There was a break in the stream of events*. This means there was a break in time that insulated the second statement from the tainted original; or
2. *The cat was not out of the bag*. This means the initial statement did not incriminate the defendant, so at the time of the later statement, and incriminating information was new.
160
Consequences of a Miranda Violation:
Any statement of physical evident obtained in violation of Miranda will be suppressed.
However, even though police violate a suspect's Miranda rights, they may still be able to offer a later, properly obtained statement if:
1. *There was a break in the stream of events*. This means there was a break in time that insulated the second statement from the tainted original; or
2. *The cat was not out of the bag*. This means the initial statement did not incriminate the defendant, so at the time of the later statement, and incriminating information was new.
161
Consequences of a Miranda Violation:
Any statement of physical evident obtained in violation of Miranda will be suppressed.
However, even though police violate a suspect's Miranda rights, they may still be able to offer a later, properly obtained statement if: (2)
1. *There was a break in the stream of events*. ; or
2. *The cat was not out of the bag*.
162
19 year old Charles Prater admitted to ax murdering his friend while very drunk and high. The court found he did not voluntarily waive his miranda warnings before his intial confession. Prater was so intoxicated, he even misspelled his own name on the waiver.
The court did rule that a second, videotaped confession was admissible. It was not tainted by the first one because: (1) almost three hours passed so the effect of the drugs and alcohol had worn off; (2) Prater got to telephone his mother; (3) in the video, Prater calmly and clearly described what he did; (4) this confession was motivated by his guilty conscience, not police pressure, and ; (50 Prater spelled his name correctly on the second waiver form.
In short, Praters second confession came after a significant:
"Break in the stream of events"
163
Police issued Miranda warnings 10 minutes too late because Larkin was already in custody. However, Larkin admitted nothing in the initial 10 minutes. In fact, he spent most of the time asking questions, and the troopers gave accurate answers that enhanced his understanding of his situation. Although he technically should have received warnings earlier, Larkin was not prejudiced by the oversight since he did not implicate himself.
This refers to:
"Cat was not out of the bag"
His later Miranda waiver and confession were proper for this reason.
164
