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Flashcards in Statements & Confessions Deck (47):

What are the 4 basis to exclude statements and confessions?

Statements obtained

1. By actual coercion

2. When ∆ had right to counsel

3. With no miranda warnings given

4. As fruits of illegal conduct.


When is a statement produce by coercion admissible?

It is inadmissible for any reason.


What factors are weighed in determining if coercion occurred?

1. The defendant's age, health, education, intelligence, gender, cultural background

2. The location, duration, physical conditions of the interrogation

3. Number and demeanor of police officers

4. The suspect's experience with the criminal justice system


5. The use of deception and trickery.


Coercion can manifest in what ways?

1. Physical abuse

2. Psychological pressure


3. Threats of future harm for failing to answer questions.


What does initiation of formal adversarial process (formal charge, indictment, arraignment, or preliminary hearing) trigger?

The 6th Amendment right to the assistance of counsel during all critical stages of the adversarial process.


What is the scope of the 6th Amendment right to the assistance of counsel?

The right extends to all critical stages of adversarial process.


What are the critical stages that trigger the 6th Amendment right to counsel?

1. Lineups

2. Preliminary hearings

3. Deliberate elicitation of a statement


4. Trial


When does a suspect become a defendant?

When they are formally charged.


What are the 6th amendment rights for suspects?

There are no 6th Amendment rights for suspects.


What is deliberate elicitation?

Express or implied questioning by the police.


Any statements obtained by the police from a defendant related to the crime he is formally charged with is inadmissible, unless?

1. Lawyer is present


2. Has executed a knowing or voluntary waiver


What does questioning by a snitch or informant trigger?

The right to counsel.


When is a ∆'s 6th Amendment waiver valid?

1. Knew the right he was giving up


2. Did so without government coercion


The 6th Amendment only bars?

Questioning about the specific events related to what is formally charged.


The 5th Amendment provides what right?

Any person called to testify in any proceeding has an absolute privilege to refuse to testify.


When can a person refuse to testify?

He has a real and substantial fear that his testimony will result in self-incrimination or contribute to his criminal conviction in the United States.


What does is the scope of the 5th Amendment protection?

Applies only to testimonial evidence. It does not permit a witness to refuse to provide other evidence even if it is clearly incriminating (blood, hair, DNA, fingerprints, participation in a lineup, handwriting samples, etc.).


How can the 5th Amendment privilege be waived?

Answering questions from the police of government.


Use/Testimonial immunity protects a witness in what way?

Prohibits the use of the witnesses' testimony against them.


Transactional immunity protects a witness in what way?

Prohibits any future prosecution of the witness for the transaction that is the subject of the testimony.


What is the Miranda rule?

The prosecution may not use statements obtained as the result of questioning while in custody in the case-in-chief unless, the police must advise the suspect of the rights they are giving up by answering questions.


What triggers the Miranda warning and waiver requirement?

1. Custody: formal arrest, or a situation where a reasonable person in the suspect's position would believe their freedom has been deprived to a degree analogous with formal arrest


2. Interrogation


What are the elements of a Miranda warning?

1. The right to remain silent

2. That anything said can be used against him in court

3. The right to the presence of an attorney and

4. If he cannot afford an attorney, one will be provided for him.



Non-custody seizure v. Custody Seizure.

Custody occurs when there are objective indications that the seizure is not brief but instead the suspect is likely going to end up being booked.


Do police have to give Miranda warnings at a Terry Stop?

No, a terry stop lacks the custody triggering a Miranda warning.


What is an interrogation?

Interrogation is direct questioning or words or actions a reasonable officer would anticipate would result in eliciting an incriminating response.


What is covered by Miranda?

The products of the questioning.


What are the limitations of Miranda rule's ability to suppress evidence?

A Miranda violation does not result in the exclusion of other evidence derived from the inadmissible statement, because a Miranda violation does not trigger the fruit of the poisonous tree doctrine.


When are statements obtained from the defendant in violation of Miranda rights admissible?

To impeach a defendant at trial.


A Miranda waiver may never be presumed from what action by the defendant?

Silence. A ∆ always has the right to remain silence.


If a suspect makes an unequivocal request for an attorney or wishes to remain silent, then how can the officers proceed with their interrogation?

All interrogation must stop.


If a suspect invokes their right to counsel, questioning must cease and cannot resume unless?

1. An attorney is present during the interrogation

2. Defendant re-initiates the contact with police


3. Two weeks have elapsed and the suspect is given a new Miranda warning.


When someone invokes their miranda rights it applies what lines of questioning?

To all questioning.


Can police employ a "question first, warn later" tactic and have a valid Miranda warning?

Not when their aim is deliberately to bypass the effect of Miranda warnings.


When can a confession become tainted by the fruit of a poisonous tree?

If a but-for connection exits between a prior constitutional violation and a suspect's statement, the statement may be inadmissible fruit of a poisonous tree.


In what type of confessions are Miranda warnings not required?

Voluntary Confessions


What must a ∆ do to exercise their rights under the 5th Amendment after Miranda warnings have been given?

Make an unequivocal request for an attorney or to remain silent.


Is entrapment a constitutional question?

No, entrapment is not a constitutional defense. The states are at liberty to limit its application.


When does the due process standard apply in identifications?

The due process standard applies to all types of identifications at ALL stages of the investigatory and prosecutorial process.


What is the due process standard for identifications?

If a defendant can prove that an identification procedure used by the government was so unnecessarily suggestive that it created an irreparable risk of mistaken identification; the procedure violates due process and the ID may not be used at trial.


What is the focal point of this due process test for identifications?

Reliability. The defendant must prove both:

1. That the procedures used were unnecessarily suggestive


2. That the suggestiveness produced an unreliable ID.


What factors are considered to assess whether an unnecessarily suggestive procedure results in an unreliable identification?

1. The witness' opportunity to view the criminal at the scene

2. The witness's degree of attention

3. The accuracy of the witness's description

4.The degree of certainty of the witness


5. The time interval between the crime and the identification (the longer the interval, the less reliable).


When an out-of-court identification is excluded because it violates due process a subsequent in-court identification by the same witness will be?

Almost always be excluded as fruit of a poisonous tree.


When will the violation of the right to counsel serve as a basis to exclude an eyewitness ID?

1. Applies only to corporeal identifications (in-person)


2. Only after the initiation of formal adversarial process.


What is the impact of the police conducting a corporeal lineup in violation of the 6th Amendment right to counsel?

1. The results of the lineup (the identification) are per se inadmissible at trial


2. The witness will be prohibited from making a subsequent in court identification of the defendant unless the prosecution can prove: by clear and convincing evidence that the in court identification is independent from the out of court.


Even if police act in good faith, and the lawyer is absent because of his how negligence, conducting the lineup without a lawyer's presence will be held?

In violation of the 6th Amendment, if asserted.


What is the right of a ∆ to have counsel present during a post-charge lineup?

∆ has an absolute right to have counsel present during the entire line-up procedure.