Interrogation and Confessions

Question 1

When does 14th Amendment Due Process Apply in Crim Pro?

Answer 1

Whenever police engage in coercive conduct that overcomes the will of the suspect

Exclusion: involuntary confession is not admissible for ANY purpose

Question 2

When does the 6th Amendment Right to Counsel apply in Crim Pro?

Answer 2

When the defendant is formally charged. It attaches to all “critical stages” of the proceedings thereafter.

Question 3

What is the 6th Amendment Right to Counsel rule?

Answer 3

• Once judicial proceedings have been initiated
• the police cannot deliberately elicit an incriminating statement
• about the offense that the defendant was charged with
• in the absence of counsel or a knowing, intelligent, and voluntary waiver

Exclusion: any confession is excluded in the prosector’s case-in-chief but may be used for impeachment

Question 4

When do 5th Amendment Miranda rights apply?

Answer 4

Whenever there is a custodial interrogation

Question 5

What is the rule under 5th Amendment Miranda rights?

Answer 5

Police cannot interrogate a suspect who is in custody without counsel or a waiver (unless the public safety exception applies)

Exclusion: Any confession is excluded in the prosecutor’s case-in-chief. However, the prosecutor may use any “fruits” of the confession against the defendant for impeachment

Question 6

Are statements made involuntarily under the 14th Amendment admissible?

Answer 6

No, not for any reason, even impeachment

Question 7

What applies to the “critical stages” of prosecution?

Answer 7

• Arraignments
• Probable cause hearings
• Sentencing
• Plea Bargaining
• Police Interrogation
• Post-Charge Lineups

Question 8

What does not apply to all “critical stages” of prosecution?

Answer 8

• Blood Sampling
• Fingerprinting
• Taking of Handwriting
• Taking voice or hair exemplars

Question 9

Define: Custodial Interrogation

Answer 9

Interrogation initiated by law enforcement officers after a person has been taken into custody or deprived of their freedom of action in any significant way.

Question 10

When is a suspect in custody?

Answer 10

if there is a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest.

Question 11

Define: Interrogation

Answer 11

Questioning initiated by law enforcement officers or its functional equivalent

Question 12

What is not an interrogation?

Answer 12

• If the defendant volunteers a confession
• Routine background information (name, address, etc.)

Question 13

Do Miranda rights apply with an undercover informant?

Answer 13

If the defendant does not realize the person they are talking to is a police officer, then 5th Amendment Miranda rights don’t apply

Question 14

Miranda rights - Public Safety Exception

Answer 14

A police officer is not obligated to give Miranda warnings if the threat to public safety outweighs the need to protect the suspect’s 5th Amendment Rights

Ex: man with gun pursued into store. Police frisk man and find no gun. Officer asks man where is the gun in an interest of public safety as he knows the gun is somewhere in the store

Question 15

What are the Miranda warnings?

Answer 15

• You have the right to remain silent
• Anything you say can and will be used against you in court
• You have the right to an attorney
• If you cannot afford one, an attorney will be appointed for you

Question 16

How much Miranda rights be conveyed?

Answer 16

The Police Officer must “reasonably” convey the Miranda rights and obtain a waiver of the right to remain silent and the right to counsel

Question 17

How does someone invoke their right to remain silent?

Answer 17

The invocation must be explicit, unambiguous, and unequivocal

Note: silence before reading of Miranda rights is not protected under the 5th Amendment but silence after the reading of them generally is

Question 18

What must police do once someone invokes their right to remain silent?

Answer 18

They must stop questioning and scrupulously honor the invocation

Question 19

How to invoke the right to counsel

Answer 19

The request must be clear or unequivocal

Question 20

What are the consequences of invoking your right to counsel?

Answer 20

All questioning about any crime at all must cease unless the suspect initiates it.

Question 21

When does the request for counsel expire?

Answer 21

14 days after a suspect is released from custody so long as a knowing, intelligent, and voluntary waiver is thereafter obtained

Question 22

What evidence is excluded when there is a Miranda violation?

Answer 22

Incriminating statements used in the prosecutor’s case-in-chief

Question 23

What evidence is not excluded and can be used in court when there is a Miranda violation?

Answer 23

• Incriminating statements used to impeach the defendant’s testimony on cross examination
• “Physical Fruits” of voluntarily made incriminating statements

Question 24

Harmless Error Test

Answer 24

If a confession is improperly admitted at trial and the defendant is found guilty, that verdict will stand on appeal so long as the government can prove beyond a reasonable doubt that the error was harmless

Question 25

Miranda rights - Officer Error

Answer 25

If an officer unintentionally fails to give a defendant their Miranda warnings, they can always stop the questions and warn the suspect. Any statement made subsequent to the warning is admissible in court.

Question 26

Miranda rights - Question-First Tactic

Answer 26

If Miranda rights are deliberately withheld as a technique to get the defendant to confess, officer error does not apply and the confession is inadmissible

Question 27

When can someone “plead the 5th?”

Answer 27

Any person (defendants, witnesses, parties) can plead the fifth in any proceeding where they are testifying under oath.

Question 28

What is the privilege against self-incrimination/pleading the 5th?

Answer 28

It protects witnesses from having to give testimony against themselves.

Question 29

When does pleading the 5th **not** apply?

Answer 29

* It does *not* apply when the government tries to use a D's blood, voice, or handwriting against them in court. * It does not apply to lineups

Question 30

Can corporations invoke the 5th?

Answer 30

No

Question 31

When can someone **not** invoke the 5th?

Answer 31

If the prosecution gives **use immunity** or **transaction immunity**

Question 32

Define: Use Immunity

Answer 32

After granting immunity, the prosecution must not use the statements the witness makes against that person in a later criminal prosecution

Question 33

Define: Transaction Immunity

Answer 33

After granting this immunity, the prosecution must not prosecute the witness for any offense he testifies about.

Question 34

If a witness does not assert their 5th amendment privilege at the first possible opportunity, can they assert it later?

Answer 34

No, it is waived and may not be asserted later.

Question 35

What should occur if a Defendant challenges the **admissibility** of a statement or confession?

Answer 35

The admissibility should be determined by the court prior to trial as a matter of law

Question 36

What should occur if the Defendant **denies making a statement**?

Answer 36

They are not entitled to an evidentiary hearing, the jury can simply decide if the D made the statement

Question 37

What should happen if a Defendant asserts that a statement was made **under duress**?

Answer 37

The Defendant is entitled to a hearing outside of the ears of the jury and the statement is inadmissible if the allegations are true.