Criminal Procedure

Criminal Procedure Class Seven

Today’s Topics • Confessions & Due Process • Voluntariness Test • Role of Counsel • Deceit • Police Action

Today’s Topics • Confessions & 5th Amd Limitations • Miranda • Exclusionary Rule • Developments re: “Custody”, “Interrogation” • Invocation & Waiver

Confessions: Theories for Analyzing • Due Process • 5th Amd • Involuntary Confessions • Right to Counsel • 6th Amd • Following Formal Charges • Self Incrimination • 5th Amd • Miranda

DUE PROCESS ANALYSIS

Historical Background • Torture at early English common law • 18th century developments: emphasis on “voluntary” • Exclusionary rule rationale: statements are untrustworthy • Early U.S. cases adopting English view

Due Process Analysis • 1897 – 1964, Supreme Court relied on due process clause when confronted with claims of coerced confessions • Analytical key: unreliability of confessions extracted by torture • Problem area: line drawing, with move toward more subtle and less physical methods of interrogation

Issue • Appropriate response to intersection of police practices and person’s free will to withstand coercion

Issues Confronting Court under Voluntariness Test • Personal characteristics of accused • Physical deprivation or mistreatment • Psychological influences • Suspect’s awareness of rights

Policy Factors • Untrustworthy • Offensive to civilized justice system • U.S. as accusatorial system • Human dignity, personal autonomy • Police deterrence

Role of Counsel • Spano v. New York • Important doctrinal bridge case [spanning due process and right to counsel] • Decided on due process grounds --- under totality of circumstances, D’s will was overborne by officer pressure, fatigue and falsely aroused sympathy

Why Doctrine Still Viable • Issue: Subsequently Court developed 5th Amd Miranda & 6th Amd Right to Counsel protections in confession context … so why should we care? • Only source of protection in some circumstances

Why Doctrine Still Viable • Potential for Waiver • Collateral Uses

Role of “Deceit” • Police deception will not necessarily cause statement to be involuntary • Examples • Good cop/bad cop • False representations about evidence • Promises of leniency • Threats of more severe punishment

Role of “Threats of Violence” • Generally dispositive • Arizona v. Fulminate • Totality test • Credible threat {or actual violence}

Requirement of Police Action • Colorado v. Connolly • Must be link between course of state activity and resulting confession • Free will vs. police overreaching

FIFTH AMENDMENT LIMITATIONS

Historical Link • Due process test wasn’t working as sole means to regulate confessions • Beginning 1964, Court also used 6th Amd right to counsel as significant limitation • Concern: potential abuses that might occur during investigatory stage

Miranda • Concern: Coercive atmosphere inherent in custodial interrogation

Miranda • Holding: Prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of D, unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination • Burden?

Miranda • “Custodial interrogation”: questioning initiated by law enforcement after person either (1) taken into custody or (2) otherwise deprived of freedom of action in any significant way

Miranda • Role of counsel: ensure that suspect’s ability to choose whether to speak or remain silent is unfettered

Miranda • “Procedural safeguards”: Prior to questioning, person must be warned of right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed • Exclusive procedural safeguard?

Miranda • Waiver possible • Test: voluntary, knowing and intelligent

Miranda • Invocation / Assertion • At any stage • Contrast, invoking privilege against self incrimination at trial

Miranda • Impact of D’s actual knowledge of rights • Bright line rule

Miranda and Habeas Review • Miranda claims can be litigated on collateral attack • Contrast: 4th Amd violations

Miranda & Congress’ Response • Section 3501 • Appears designed to “overrule” Miranda • Return to voluntariness standard

Supreme Court’s Response to Congress • Dickerson v. U.S. (2000) • CAUTION: MAJOR MODIFICATION TO CASEBOOK ---- Supreme Court has recognized that Miranda safeguards are constitutionally based. Cases discussing “impact” are essentially “re-written” as “modifying” Miranda [not depriving its safeguards of constitutional status]. • Limitations still apply; rationale has changed

Impeachment • Two possible forms • Prior inconsistent statement • Trial testimony • Prior confession • Silence

Use of Miranda-Defective Statements to Impeach • Harris v. New York • Rationale: Shield provided by Miranda cannot be perverted into license to use perjury as defense • Oregon v. Hass

Contrast: Involuntary Confessions • Mincey v. Arizona • Not admissible, even for impeachment

Impeachment with Silence • Doyle v. Ohio • Post-warning silence • Jenkins v. Anderson • Pre-arrest silence • Fletcher v. Weir • Post-arrest, pre-warning silence

Fruits of Miranda-Defective Confessions • Physical evidence • Second confession • Investigative leads

Fruits: Investigative Leads • Michigan v. Tucker • During Miranda-defective confession, D gave police name of friend he claimed to be with

Fruits: Second Confession • Oregon v. Elstad • “Cat out of bag” claim • Cost benefit analysis • Contrast with E/R function under 4th Amd • Hypo: What if second confession flowed from involuntary confession?

Miranda “Exceptions” • Exigent Circumstances • New York v. Quarles

Miranda Developments • Custody / Location • Arrest • Prisoners • Police Station • Probation Officer • Terry • Interrogation

Miranda Developments • Covert Activity • Crime-Based Requirement? • Adequacy of Warnings

“Custody” • Key: If D is not in custody, Miranda does not apply • Arrest • Contrast • Orozco v. Texas • Beckwith v. United States

“Custody” • Prisoners • Mathias v. United States [in jail for unrelated reasons] • Questioning at Police Station [not automatically “custody”] • Oregon v. Mathiason • California v. Behaler

“Custody” • Probation Officer interrogation • Test for all “custody” determinations: Objective [not subjective intent of officer] • Note: Officer’s subjective intent might become relevant if somehow conveyed to suspect • Terry stops are not “custody”

“Interrogation” • Rhode Island v. Innis • Miranda safeguards come into play wherever person in custody is subjected to either • Express questioning • Functional equivalent • Test: Should police know practice is reasonably likely to invoke an incriminating response • Arizona v. Mauro • Edwards v. Arizona • Pennsylvania v. Muniz [routine booking]

Covert Activity • Issue: Does Miranda apply if suspect does not know that he is being interrogated by police [think: undercover agent] • Illinois v. Perkins

Miranda Applies to Which Offenses? • Issue: Does Miranda apply only to serious crimes, or to all custodial interrogation regardless of the charge • Berkemier v. McCarty • Rationales: clarity; practical application

Adequacy of Warning Given • Background: Miranda left open possibility that some other type of warning or statement might suffice to convey the required protections. • Issue: What is the constitutional significance when warnings actually given differ from Miranda?

Adequacy of Warnings Given • Compare: • California v. Prysock • Duckworth v. Eagan • Conclusion: As long as officer’s explanation of suspect’s rights is a fully effective equivalent, no magic words are necessary

Waiver of Miranda Protections • 2 constitutional protections implicated in Miranda warnings: • Silence • Right to counsel

Waiver of Miranda Protections • Issues: • How does a suspect relinquish these protections • Which party bears the burden of establishing waiver • How is waiver shown

Waiver Background • Miranda stated that valid waiver would not be assumed from either • D’s silence • Fact that confession was ultimately obtained • 15 years later Court held that neither an express nor written waiver is required • Contemporary rule: Sufficient evidence to show suspect understood his rights and voluntarily waived them

Criminal Procedure