the fifth ammendment

Question 1

what is the rule about 6th amendment right to counsel

Answer 1

6th amendment right to counsel attaches at indictment
indictment= formally starting the legal process via prosecution

Question 2

what three elements are needed for the 5A priv against self incrim to kick in

Answer 2

1. Compulsion
   If no compulsion, then it does not implicate the right
2. Incrimination
3. Testimonial evidence
   Means to be a witness against oneself

Question 3

what do confessions need to be

Answer 3

voluntary

Question 4

does the voluntariness requiremnt of confessions only apply to fed

Answer 4

no applies to state too

Question 5

waht does it mean for a confession to be voluntary

Answer 5

A statement to be voluntary does not need to be volunteered; however, if it is the product of sustained pressure by the police it does not come from free choice

Question 6

two phases of police investifation

Answer 6

Interview phase – officers just gathering info
Interrogation phase – point is to get a confession

Question 7

what are the four miranda rights

Answer 7

1. Right to remain silent
2. Anything said can be used against them
3. Right to atty
4. If you cant afford, one will be appointed

Question 8

what does miranda think about custiodial interrigation that leads it to create miranda warnings

Answer 8

Custodial interrogation is so cocerice that it raises to level of compulsion

Question 9

what is custodial interrigation in the absence of MW

Answer 9

compulsion and a violation of a 5A

Question 10

when must mr be given

Answer 10

only given in custodial interrogations

Question 11

what does custody mean

Answer 11

anything that would be consideed a FA arrest (ie anything exceeding a terry stop)

Question 12

who has the burden to show that there was a custodial interregation that warrants mr

Answer 12

d

Question 13

who has the burdne to show that the mr rights were wavied

Answer 13

prosecution

Question 14

is a traffic stop custody for mr purposes

Answer 14

TRAFFIC STOP DOES NOT AMOUNT TO CUSTODY TO WARRANT ISSUANCE OF MIRANDA RIGHTS

Question 15

is mandatory meeting w probation officer a FA arrest, and therefore custody

Answer 15

mandatory meeting with probation officer is not FA arrest, and therefore not custody for fifth purposes

Question 16

what is the JBD rule when it comes to deciding if custody of a child

Answer 16

For purposes of custody, we consider the age of child, so long as officers know or should know they are dealing with a child

This means that what might count as custody for an adult, might not count for a child

Question 17

what is interrgiation

Answer 17

not limited to direct questioning; also applies to words or actions that the police SHOULD KNOW are reasonbly likely to elicit an incriminating response from the suspect

Question 18

how is the officers intent in questioning subjective in determining if interroation

Answer 18

If an officer INTENDS to get a response, then they should reasonably know its reasonably likely to get a response

Question 19

what is the interregation rule when it comes to undercover questioning/police sending in someone to ask questuons

Answer 19

for it to be interrgation, must ACTUALLY be police words/actions (maruo) AND must APPEAR to be police words/actions (perkins)

Question 20

why was the case where the cop went undercover to ask somone in jail questions not mr violation even tho it was techincally intergation

Answer 20

Lack of coercion because HE DIDN’T KNOW HE WAS TALKING TO COP

So for interrogation, we also need something that APPEARS to be police action

Question 21

two exceptions to giving mw

Answer 21

1. routine book exception (?s about bio, DOB)
2. Immeidnet threat to public saftey

Question 22

define the immednet threat to public saftey exception to miranda

Answer 22

Reason (most likely PC) to believe that imminent threat to public saftey and the can get info from who they are speaking to, no need for mw

Question 23

how do the warnings need to be issued

Answer 23

Officers don’t have to quote miranda verbatim; it must be SUFFICIENTLY COMPREHENSIVE and COMPREHENSIBLE given a common sense understanding

Question 24

what happens when suspect invokes right to silence

Answer 24

cease questioning but can reinitiate/begin second separate unrelated integration

Question 25

what happens when perp invokes right to atty

Answer 25

lawyer invocation- cease questioning and cops cant initiate on their own until lawyer comes or suspect reinetates

Question 26

how do you invoke your right to remain silent

Answer 26

must be unambigoulsy invoked; its not self executing so sitting in silence is not enough to invoke

Question 27

what are the two exceptions to the rule that the right to reamin slent must be positvily asserted

Answer 27

Criminal d need not take the stand and assert the privilege at his own trial A witness’ failure to invoke the privialge must be excused where governmental coercion makes his forfeiture of the privilege involuntary

Question 28

when can silence be used against you

Answer 28

Silence pre invocation can be used against a d , but not after

Question 29

how do you invoke your right to counsel

Answer 29

Invocation must be unambiguously and affirmitly requested

Question 30

what does a valid wavier of rights require and how does mrianda address

Answer 30

1. Voluntary -- reading of the rights alleviates coercion 2.knowledge of what it mwans to abandon the rights; did d have all the info he needed; only applies to what he knows as it relates to whats going on in the room

Question 31

how can someone waive their right to consel after they invoked it

Answer 31

if he asks questions about what is goning to ahppen to him; after this tho his rights must be read again before you can resume questioning

Question 32

what if the cops decive the lawyer trying to get in contact w the suspect (moran)

Answer 32

If a suspect has knowingly waived his Miranda rights, officers’ deception of a lawyer seeking to represent the suspect and their refusal to inform the suspect that his family has obtained a lawyer for him do not invalidate the suspect’s Miranda waiver.

Question 33

how does a suspect implicty waive his right to silent even if he doesnt invoke it thomposn -- the case where he was silent up until the cop asked if he prayed to god for forgivness for what he did

Answer 33

If a defendant does not invoke his right to remain silent after fully understanding his Miranda rights, he implicitly waives his Miranda rights by making a voluntary statement to police.

Question 34

what happnes if there is no invocation and the person just remains silent

Answer 34

if there is no invocation→ implied waiver→ police may keep questioning

Question 35

what is the remedy for mr vioaltion

Answer 35

Failure to read mr, testimonial evidence cant be used for case in chief, but can be used to impeach

Question 36

are miranda violation constiuional violations

Answer 36

no

Question 37

if the violation is a fourt ammendment one, what happens to the testiominal and physcial fruits

Answer 37

Testimonial fruits are admissible only to impeach the D Physical fruits admissible only to impeach the D

Question 38

if violation of mr via voluntary statement -- what is the remedy

Answer 38

Testimonial fruits admissible only to impeach the D Physical fruits are FULLY ADMISSIBLE

Question 39

if mr violation is actual involutary confession, what is hte remedy

Answer 39

Testimonial fruits are inadmissible Physical fruits inadmissible

Question 40

if mr vioation as to right to counsel, what are remdies

Answer 40

Testimonial fruits inadmissible Physical fruits inadmissible

Question 41

what is testimonail evidnecw

Answer 41

Requires cognition, memories, belief, or thought

Question 42

what is the seibert rule about giving mw (ie waht did the cops do wrong)

Answer 42

question first, then give warnings, and then repeat questioning until officer gets the incriminating answer that she’s already provided once = NOT allowed