Walker Hearings

1. Walker Hearings A to Z

2. Major Felony Recordings MCL 763.8 • When police conduct an interrogation in an effort to determine a person’s involvement in a major felony, there must be a time-stamped, audiovisual recording of the entire interrogation. • The video must include Miranda warnings • A copy of the video must be provided to the defense pursuant to any discovery request.

3. Failure to Record • Failure on the part of the police to record an interrogation under MCL 763.8 does not prevent use of the statement in court. MCL 763.9. • Under such circumstances, “the jury shall be instructed that it is the law of this state to record statements of an individual in custodial detention who is under interrogation for a major felony and that the jury may consider the absence of a recording in evaluating the evidence relating to the individual’s statement.” Id.

4. The Fifth Amendment No person . . . shall be compelled in any criminal case to be a witness against himself. US Const. Amend. V.

5. Was Your Client Properly Advised of Her Miranda Rights? A suspect must be warned of the following prior to being subjected to custodial interrogation: • She has the right to remain silent • Anything she says can be used against her in a court of law • She has the right to the presence of an attorney prior to and during any questioning and • If she cannot afford an attorney, one will be appointed at no cost to her

6. Missouri v Seibert • In Missouri v Seibert, the United States Supreme Court addressed the constitutionality of a “question first” policy employed by police. Missouri v Seibert, 542 US 600, 604(2004). • The defendant in that case was interrogated for forty minutes before police Mirandized her, obtained her signature on a waiver form, and resumed questioning. Id. • The Court explained that neither of the statements were admissible, as “the earlier and later statements [were] realistically [] parts of a single, unwarned sequence of questioning.” Id. at 612 n 4.

7. When Does Miranda Apply? • Miranda rights only attach once a person is in custody and is subject to interrogation • Custodial interrogation is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way.” Miranda v Arizona, 384 US 436, 444 (1966).

8. Miranda Custody • “To determine whether a defendant was in custody at the time of the interrogation, we look at the totality of the circumstances, with the key question being whether the accused reasonably could have believed that he was not free to leave . . . the determination of custody depends on the objective circumstances of the interrogation rather than the subjective views harbored by either the interrogating officers or the person being questioned.” People v Zahn, 234 Mich App 438, 449 (1999). • The temporary and relatively nonthreatening detention involved in a traffic stop or Terrystop does not constitute Miranda custody. Maryland v Shatzer, 559 US 98, 113 (2010).

9. Did Your Client Properly Invoke Her Right to Counsel under Miranda? • Invocation of the right to counsel must be unambiguous: • The suspect “must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect.” Davis v United States, 512 US 452, 459 (1994) (holding “maybe I should talk to a lawyer” was too ambiguous to properly invoke right to Miranda counsel).

10. Did Your Client Properly Invoke Her Right to Silence under Miranda? • An invocation of the right to remain silent must be unambiguous. Berghuis v Thompkins, 560 US 370, 388-89 (2010). • Simply remaining silent is not sufficient to invoke the right. Id.

11. Effect of Invoking the Right to Silence • “[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning was scrupulously honored.” Michigan v Mosley, 423 US 96, 104 (1975). • “[T]he prosecutor may not . . . refer to [a] defendant’s postarrest, post‐Miranda silence with the police[.]” People v Clary, 494 Mich260, 271‐272 (2013) (citing Doyle v Ohio, 426 US 610, 618‐619 (1976).

12. Effect of Invoking the Right to Counsel • When the right to counsel is invoked, all questioning must stop until the suspect is represented by counsel. Edwards v Arizona, 451 US 477, 484-85 (1981). Under Edwards, any subsequent waiver of the right to counsel is presumed invalid. • This presumption does not apply to situations where there has been a 14 day break in custody prior to reinterrogation by the police, as “that provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody. Maryland v Shatzer, 559 US 98, 110 (2010).

13. Reinitiation • An interrogation can be resumed despite a valid invocation of Miranda Rights if: • The suspect is the person reinitiating communication with the police. People v Bishop, 117 Mich App 553 (1982). • There has been a break in custody lasting at least 14 days, as this amount of time “provides plenty of time for the suspect to get reacclimatedto his [or her] normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.” Maryland v Shatzer, 559 US 98, 110 (2010).

14. Interrogation • Interrogation involves questioning or its functional equivalent which includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v Innis, 446 US 291, 301 (1980).

15. Rhode Island v Innis • A conversation between officers transporting a suspect was not an interrogation where one officer stated “there's a lot of handicapped children running around in this area, and God forbid one of them might find a weapon with shells and they might hurt themselves“ was not an interrogation.Rhode Island v Innis, 446 US 291, 294-95 (1980) • The Court reasoned that it was not established that the officer “should have known [his comments] were reasonably likely to elicit an incriminating response.” Id. at 303.

16. People v White • The Michigan Supreme Court held that the following conversation did not constitute an interrogation and even though the suspect had already invoked his right to counsel, his subsequent statements were admissible: • “[Officer]: The only thing I can tell you . . . is good luck man. . . . The only thing that I can tell you is this, and I'm not asking you questions, I'm just telling you. I hope that the gun is in a place where nobody can get a hold of it and nobody else can get hurt by it . . . • [Defendant]: I didn't even mean for it to happen like that. It was a complete accident.” People v White, 493 Mich 187, 191-92; 828 NW2d 329 (2013).

17. Was the Statement Voluntarily Made? • For a confession to be voluntary, it “must have been . . . the product of a free and deliberate choice rather than intimidation, coercion or deception[.]” People v Ryan (Sean), 295 Mich App 388, 397 (2012). • The same analysis is used to determine both whether a statement is voluntary under the due process clause and whether the waiver of Miranda rights was voluntary. Id.

18. Cipriano Factors • In determining whether a statement is voluntary, the trial court should consider: • the age of the accused; • his lack of education or his intelligence level; • the extent of his previous experience with the police; • the repeated and prolonged nature of the questioning; • the length of the detention of the accused before he gave the statement in question; • the lack of any advice to the accused of his constitutional rights; • whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; • whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; • whether the accused was deprived of food, sleep, or medical attention; • whether the accused was physically abused; • and whether the suspect was threatened with abuse. People v Cipriano, 431 Mich 315, 334 (1988).

19. People v DeLisle • In DeLisle, the Court of Appeals held the defendant’s statement to police was properly suppressed, reasoning that • The length of detention suggested the statement was involuntary • The defendant’s emotional state was very poor • The defendant was promised leniency in exchange for his confession • The defendant had a 10th grade education • The defendant had no prior experience with the criminal justice system People v DeLisle, 183 Mich App 713, 719-20; 455 NW2d 401 (1990).

20. Promises • “[A] statement induced by a law enforcement official’s promise of leniency is involuntary and inadmissible, if there was a promise of leniency and that promise caused the defendant to confess.” People v Conte, 421 Mich704, 712 (1984). • The defendant must have understood the officer’s statements as promises of leniency and relied on them in making inculpatory statements in order for the statement to be considered involuntary. Id.

21. Threats • Threats by police often are viewed by courts as a form of psychological coercion. People v Richter, 54 Mich App 598, 604; 221 NW2d 429 (1974). • In a case where police threatened to take the suspect‘s children away unless she cooperated, the United States Supreme Court explained, "a confession made under such circumstances must be deemed not voluntary, but coerced. . . . [T]he question in each case is whether the defendant's will was overborne at the time he confessed. If so, the confession cannot be deemed the product of a rational intellect and a free will." Lynumn v Illinois, 372 US 528, 534 (1963).

22. Did Your Client Knowingly and Voluntarily Waive Her Miranda rights? • “The prosecutor must show by a preponderance of the evidence that the defendant knowingly, intelligently, and voluntarily waived his Fifth Amendment right.” People v Tierney, 266 Mich App 687, 707 (2005) (citing People v Daoud, 462 Mich 621, 634 (2000)). • “While advanced intoxication from drugs or alcohol may preclude an effective waiver of Miranda rights, the fact that a person was narcotized or under the influence of drugs is not dispositive of the issue of voluntariness.” People v Leighty, 161 Mich App 565, 571 (1987).

23. Moran v Burbine • The Supreme Court held that waiver was knowing and voluntary in a case where the suspect’s retained counsel informed the police of the representation. police intended to place him in a lineup or question him. Moran v Burbine, 475 US 412, 417 (1986). • The Supreme Court stated that the failure to inform the suspect of the fact that an attorney had been retained for him had no bearing on the validity of his Miranda waiver. Id. • The fact that police reassured the attorney that the suspect would not be subject to questioning was also not relevant to whether the waiver was valid. Id.

24. Did Your Client Understand Her Rights? • “A confession is validly suppressed where the police exploit an apparent mental deficiency in the defendant, or where a defendant's level of cognitive understanding is so low that the police knew or should have known that the person is not capable of understanding.” People v Cheatham, 453 Mich 1, 21 n.18; 551 NW2d 355 (1996).

25. Competency to Waive Miranda • “To establish a valid waiver of Miranda rights, the prosecution need only present evidence sufficient to demonstrate that the accused understood that he did not have to speak, that he had the right to the presence of counsel, and that the state could use what he said in a later trial against him.” People v Abraham (In re Abraham), 234 Mich App 640, 647; 599 NW2d 736 (1999). • “An accused need not fully appreciate the ramifications of talking to the police[.]” Id. • “Lack of foresight isinsufficient to render an otherwise proper waiver invalid.” Id. • “A suspect's awareness of all the possible subjects of questioning . . . is not relevant to determining whether the suspect [validly] waived his Fifth Amendment privilege.” Id.

26. Filing the Motion • Keep your motion brief and simple • Allege that the statement was not freely and voluntarily made • Prepare your client • Make sure he understands the purpose of the hearing

27. Testimony at the Hearing • The prosecutor will have the interrogating officer testify in an effort to establish: • The Mirandawaiver form was signed • No threats or promises were made • The defendant freely and voluntarily confessed • Rights were not invoked • The defendant was not deprived of food, water or sleep • The defendant will likely need to testify • The prosecutor may only ask questions relating to the circumstances of the interrogation • No questions can be asked about the defendant’s involvement with the allegations underlying the charges against your client

28. Statements Obtained as Fruits of a Fourth Amendment Violation • In addition to due process and Miranda violations, statements obtained as a result of a Fourth Amendment violation must also be suppressed. Kauppv Texas, 538 US 626 (2003). • Statements obtained pursuant to unlawful arrests must be suppressed. People v Mosley (Richard), 400 Mich 181, 183 (1977). • To determine whether the illegal arrest caused the confession, courts should consider the following factors: • the time between the illegal arrest and confession • whether the official misconduct was flagrant • whether there were intervening circumstances, and • any events that occurred before the arrest. People v Mallory, 421 Mich229, 243 n.8 (1984).

29. Kaupp v Texas • The defendant, who was 17 years old, was awakened by six police officers at 3:00 a.m. while asleep in his bedroom at his father’s house. Kaupp v Texas, 538 US 626, 628 (2003). • After a failed attempt to obtain a warrant for his arrest, the officers went to the house to confront him about his involvement in a homicide they were investigating. Id. • The boy was taken into custody and removed from the house wearing only boxer shorts and a T-shirt, placed in the backseat of a patrol car, driven to the scene of the crime, and interrogated by the officers until he ultimately confessed. Id. • The Court held that because the statement was the fruit of an unlawful arrest, it had to be suppressed. Id. at 633.

30. Suppressing a Statement the Defendant Denies Making • Where “a defendant claims that he involuntarily signed a statement and that the statement was fabricated by police, the trial court must hold a Walker hearing prior to introduction of the statement at trial. At the hearing the trial court must determine, assuming the defendant made the statement, whether he did so voluntarily.” • “If it is found that the defendant voluntarily made the statement, the defendant is free to argue to the jury that the police fabricated it.” • “However, if the trial court at the hearing finds the statement was involuntarily made, the statement is inadmissible, regardless of the defendant's claim that he never actually made it.” People v Neal, 182 Mich App 368, 372; 451 NW2d 639 (1990).

31. Losing the Motion • Even if the statement is not suppressed, circumstances surrounding the statement can often be relevant to its credibility at trial: • “[T]he physical and psychological environment that yielded the confession can also be of substantial relevance to the ultimate factual issue of the defendant's guilt or innocence. Confessions, even those that have been found to be voluntary, are not conclusive of guilt. And, as with any other part of the prosecutor's case, a confession may be shown to be "insufficiently corroborated or otherwise . . . unworthy of belief." . . . [R]egardlessof whether the defendant marshaled the same evidence earlier in support of an unsuccessful motion to suppress, and entirely independent of any question of voluntariness, a defendant's case may stand or fall on his ability to convince the jury that the manner in which the confession was obtained casts doubt on its credibility.” Crane v Kentucy, 476 US 683, 689 (1986)

32. Excluding Inadmissible Statements at Preliminary Exams • MCR 6.110(D) provides that the magistrate at a preliminary examination must exclude inadmissible evidence: • “If, during the preliminary examination, the court determines that evidence being offered is excludable, it must, on motion or objection, exclude the evidence.” MCR 6.110(D)(2).