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Criminal Procedure. Class Seven. Today’s Topics. Confessions & Due Process Voluntariness Test Role of Counsel Deceit Police Action. Today’s Topics. Confessions & 5 th Amd Limitations Miranda Exclusionary Rule Developments re: “Custody”, “Interrogation” Invocation & Waiver.

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Criminal Procedure

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today s topics
Today’s Topics
  • Confessions & Due Process
    • Voluntariness Test
    • Role of Counsel
    • Deceit
    • Police Action
today s topics1
Today’s Topics
  • Confessions & 5th Amd Limitations
    • Miranda
    • Exclusionary Rule
    • Developments re: “Custody”, “Interrogation”
    • Invocation & Waiver
confessions theories for analyzing
Confessions: Theories for Analyzing
  • Due Process
    • 5th Amd
    • Involuntary Confessions
  • Right to Counsel
    • 6th Amd
    • Following Formal Charges
  • Self Incrimination
    • 5th Amd
    • Miranda
historical background
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 analysis1
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
  • Appropriate response to intersection of police practices and person’s free will to withstand coercion
issues confronting court under voluntariness test
Issues Confronting Court under Voluntariness Test
  • Personal characteristics of accused
  • Physical deprivation or mistreatment
  • Psychological influences
  • Suspect’s awareness of rights
policy factors
Policy Factors
  • Untrustworthy
  • Offensive to civilized justice system
  • U.S. as accusatorial system
  • Human dignity, personal autonomy
  • Police deterrence
role of counsel
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
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 viable1
Why Doctrine Still Viable
  • Potential for Waiver
  • Collateral Uses
role of deceit
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
Role of “Threats of Violence”
  • Generally dispositive
  • Arizona v. Fulminate
    • Totality test
    • Credible threat {or actual violence}
requirement of police action
Requirement of Police Action
  • Colorado v. Connolly
    • Must be link between course of state activity and resulting confession
  • Free will vs. police overreaching
historical link
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
  • Concern: Coercive atmosphere inherent in custodial interrogation
  • 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?
  • “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
  • Role of counsel: ensure that suspect’s ability to choose whether to speak or remain silent is unfettered
  • “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?
  • Waiver possible
    • Test: voluntary, knowing and intelligent
  • Invocation / Assertion
    • At any stage
    • Contrast, invoking privilege against self incrimination at trial
  • Impact of D’s actual knowledge of rights
  • Bright line rule
miranda and habeas review
Miranda and Habeas Review
  • Miranda claims can be litigated on collateral attack
    • Contrast: 4th Amd violations
miranda congress response
Miranda & Congress’ Response
  • Section 3501
    • Appears designed to “overrule” Miranda
    • Return to voluntariness standard
supreme court s response to congress
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
  • Two possible forms
    • Prior inconsistent statement
      • Trial testimony
      • Prior confession
    • Silence
use of miranda defective statements to impeach
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
Contrast: Involuntary Confessions
  • Mincey v. Arizona
    • Not admissible, even for impeachment
impeachment with silence
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
Fruits of Miranda-Defective Confessions
  • Physical evidence
  • Second confession
  • Investigative leads
fruits 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
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
Miranda “Exceptions”
  • Exigent Circumstances
    • New York v. Quarles
miranda developments
Miranda Developments
  • Custody / Location
    • Arrest
    • Prisoners
    • Police Station
    • Probation Officer
    • Terry
  • Interrogation
miranda developments1
Miranda Developments
  • Covert Activity
  • Crime-Based Requirement?
  • Adequacy of Warnings
  • Key: If D is not in custody, Miranda does not apply
  • Arrest
    • Contrast
      • Orozco v. Texas
      • Beckwith v. United States
  • Prisoners
    • Mathias v. United States [in jail for unrelated reasons]
  • Questioning at Police Station [not automatically “custody”]
    • Oregon v. Mathiason
    • California v. Behaler
  • 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”
  • 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
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
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
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
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
Waiver of Miranda Protections
  • 2 constitutional protections implicated in Miranda warnings:
    • Silence
    • Right to counsel
waiver of miranda protections1
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
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
waiver test
Waiver: Test
  • Relinquishment must have been voluntary
    • Product of free and deliberate choice, not intimidation, coercion or deception
  • Waiver must have been made with full awareness both of nature of rights being abandoned and consequences of decision
examples of waiver
Examples of Waiver
  • North Carolina v. Butler
  • Moran v. Burbine
  • Teague v. Louisiana
interplay miranda and due process voluntary claims
Interplay Miranda and Due Process Voluntary Claims
  • Concept: Confession can still be unconstitutional even if it’s given after receiving Miranda warnings. It could be coerced under traditional standards
interplay miranda and due process voluntary claims1
Interplay Miranda and Due Process Voluntary Claims
  • Colorado v. Connolly
    • Note: When courts use “voluntary” in confession context, they are not speaking of free will or volitional acts as those terms might be used in moral or philosophical sense
conditional waivers
Conditional Waivers
  • “If, then”
  • Connecticut v. Barrett
    • D agreed to tell officers but not to give written confession
    • Significant concept: “We have never embraced a theory that a D’s ignorance of the full consequences of his decisions vitiates their voluntariness.”
miranda plus
Miranda “Plus”
  • Concept: In certain scenarios, Miranda warnings alone are insufficient … and additional warnings or information should be supplied
miranda plus1
Miranda “Plus”
  • Routinely rejected by Supreme Court
  • Scenarios in which claim has been raised:
    • Information about scope of questions
    • Advise about inadmissibility of prior confession
    • Notice that attorney attempting to reach suspect
cases raising miranda plus
Cases Raising Miranda “Plus”
  • Colorado v. Spring [during questioning about firearms violations, officers asked if D had ever shot anyone]
cases raising miranda plus1
Cases Raising Miranda “Plus”
  • Oregon v. Elstad [“cat out of the bag”; D unaware that his prior Miranda-defective statement could not be used against him]
  • Moran v. Burbine [sister hired lawyer]
waiver following invocation
Waiver Following Invocation
  • Context: Suspect invokes his right to silence or right to consult with attorney and later wants to revoke that invocation (and talk to police)
waiver following invocation1
Waiver Following Invocation
  • Issues
    • What police procedures required when D asserts rights (either silence or counsel)
    • When, if ever, can police obtain a valid waiver once Miranda rights are asserted
asserting right to silence
Asserting Right to Silence
  • Issue: How is suspect’s right to cut off questioning satisfied
  • Police must “scrupulously honor” D’s right to silence once he asserts privilege
  • Not a permanent bar to questioning
asserting right to counsel
Asserting Right to Counsel
  • Consequence of Invocation: Suspect is not subject to further interrogation until
    • Counsel has been made available to him OR
    • Suspect himself initiates further communications
  • Contrast with consequence of asserting right to silence
suspect s invocation later initiation
Suspect’s Invocation & Later Initiation
  • Oregon v. Bradshaw [D initiated further conversation and thus waived his previous invocation of right to consult lawyer]
suspect s invocation later initiation1
Suspect’s Invocation & Later Initiation
  • Davis v. United States [if invocation of right to consult attorney is ambiguous or equivocal, police can continue questioning]
suspect s invocation later initiation2
Suspect’s Invocation & Later Initiation
  • Smith v. Illinois [“Uh, yeah, I’d like that”]
  • In Davis, D argued that allowing police to continue interrogation in face of ambiguous invocation of counsel would permit police to take unfair advantage of inarticulate or overmatched suspects
  • Identify groups on which such a rule might have a disproportionate impact
miranda s application to unrelated crimes
Miranda’s Application to Unrelated Crimes
  • Issue: Is invocation of counsel under Edwards offense-specific
    • If D asserts right to counsel with attorney, can police keep questioning as long as the topic is another crime?
    • Arizona v. Roberson
right to counsel
Right to Counsel
  • 5th Amd -- Miranda
  • 6th Amd -- once formal adversarial proceedings have begun
  • Distinct protections
    • Consider: McNeil v. Wisconsin
renewed questioning once a lawyer s been consulted
Renewed Questioning Once a Lawyer’s Been Consulted
  • Issue: Does Edwards protection cease after suspect has had opportunity to consult with attorney
    • Can police then approach suspect and ask if he would like to talk to them?
      • Minnink v. Mississippi
  • Police are investigating statutory rape claim involving 2 high school students who have been dating and are sexually intimate
  • Girl calls Boy and tells him she is pregnant
  • Police tape phone call
  • Analyze under Due Process and Miranda