Statements & Confessions

Question 1

What are the 4 basises to exclude statements and confessions?

Answer 1

Statements obtained

1. By actual coercion
2. When a defendant had right to counsel
3. With no Miranda warnings given
4. As fruits of illegal conduct

Question 2

When is a statement produce by coercion admissible?

Answer 2

It is inadmissible for any reason

Question 3

What factors are weighed in determining if coercion occurred?

Answer 3

1. The defendant’s age, health, education, intelligence, gender, and cultural background
2. The location, duration, and physical conditions of the interrogation
3. Number and demeanor of police officers
4. The suspect’s experience with the criminal justice system

And

5. The use of deception and trickery

Question 4

Coercion can manifest in what ways?

Answer 4

1. Physical abuse
2. Psychological pressure

Or

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

Question 5

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

Answer 5

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

Question 6

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

Answer 6

The right extends to all critical stages of adversarial process.

More Info: Scope of the 6th Amendment

Question 7

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

Answer 7

1. Lineups
2. Preliminary hearings
3. Deliberate elicitation of a statement

And

4. Trial

Question 8

When does a suspect become a defendant?

Answer 8

When they are formally charged

Question 9

What are the 6th Amendment rights for suspects?

Answer 9

There are no 6th Amendment rights for suspects

Question 10

What is deliberate elicitation?

Answer 10

Express or implied questioning by the police

Question 11

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

Answer 11

1. Lawyer is present

Or

2. Has executed a knowing or voluntary waiver

Question 12

What does questioning by a snitch or informant trigger?

Answer 12

The right to counsel

Question 13

When is a defendant’s 6th Amendment waiver valid?

Answer 13

1. Knew the right he was giving up

And

2. Did so without government coercion

Question 14

The 6th Amendment only bars?

Answer 14

Questioning about the specific events related to what is formally charged

Question 15

The 5th Amendment provides what right?

Answer 15

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

Question 16

When can a person refuse to testify?

Answer 16

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.

More Info: Refusal to Testify

Question 17

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

Answer 17

The 5th Amendment 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.).

Question 18

How can the 5th Amendment privilege be waived?

Answer 18

Answering questions from the police of government

Question 19

Use/Testimonial immunity protects a witness in what way?

Answer 19

Prohibits the use of the witnesses’ testimony against them

More Info: Use/Testimonial Immunity

Question 20

Transactional immunity protects a witness in what way?

Answer 20

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

Question 21

What is the Miranda rule?

Answer 21

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

Question 22

What triggers the Miranda warning and waiver requirement?

Answer 22

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 a formal arrest

And

2. Interrogation
   * More Info:* Miranda Warning and Waiver

Question 23

What are the elements of a Miranda warning?

Answer 23

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

Question 24

Differentiate

Non-Custody Seizure v. Custody Seizure.

Answer 24

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.

Question 25

Do police have to give **Miranda** warnings at a **Terry** **stop**?

Answer 25

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

Question 26

What is an **interrogation**?

Answer 26

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

Question 27

What is covered by M**iranda**?

Answer 27

The products of the questioning

Question 28

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

Answer 28

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.

Question 29

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

Answer 29

To impeach a defendant at trial.

Question 30

A M**iranda waiver** may **never** be **presumed** from what action by the defendant?

Answer 30

Silence. A defendant always has the right to remain silent.

Question 31

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

Answer 31

All interrogation must stop.

Question 32

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

Answer 32

1. An attorney is present during the interrogation 2. Defendant re-initiates the contact with police Or 3. Two weeks have elapsed and the suspect is given a new Miranda warning. * More Info:* [Miranda Right to Counsel](http://www.lectlaw.com/files/cri13.htm)

Question 33

When someone invokes their **M****iranda rights,**it**applies**to what lines of**questioning**?

Answer 33

To all questioning

Question 34

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

Answer 34

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

Question 35

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

Answer 35

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.

Question 36

In what type of **confessions** are **Miranda** warnings **not required**?

Answer 36

Voluntary confessions

Question 37

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

Answer 37

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

Question 38

Is entrapment a constitutional question?

Answer 38

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

Question 39

When does the **due process** standard apply in **identifications**?

Answer 39

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

Question 40

What is the **due process standard** for **identifications**?

Answer 40

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.

Question 41

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

Answer 41

**Reliability**. The defendant must prove both: 1. That the procedures used were unnecessarily suggestive And 2. That the suggestiveness produced an unreliable ID.

Question 42

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

Answer 42

1. The witness' opportunity to view the criminal at the scene 2. The witness' degree of attention 3. The accuracy of the witness' description 4. The degree of certainty of the witness And 5. The time interval between the crime and the identification (the longer the interval, the less reliable)

Question 43

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

Answer 43

Almost always be excluded as fruit of a poisonous tree

Question 44

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

Answer 44

1. Applies only to corporeal identifications (in-person) And 2. Only after the initiation of formal adversarial process * More Info:* [Violation of the Right to Counsel](http://www.boulder-bar.org/bar_media_manual/procedures/7.6.html)

Question 45

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

Answer 45

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

Question 46

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

Answer 46

In violation of the 6th Amendment, if asserted

Question 47

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

Answer 47

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