Interrogation and Confession

Terms in this set (38)

3. Three Doctrines and their Objectives of Confession Law:
a) Due Process Requirement that the statement be Voluntary:
(1) ReliabilityTraditionally it was about considerations of reliability that a coerced out of court statement that has unreliable evidence of D's guilt ought not to be admitted during his/her trial. (Contrast to 4a law, which is not concerned w/ this and even willing to sacrifice some accuracy for bright-line rules)
(2) OffensiveCoercion isn't a way gov't should treat its citizens. "Belief that police must obey the law while enforcing the law" (Blackburn)
(3) Privacy a person's personal thoughts ought to be protected from coercion, that they ought not to be forced to reveal them.
b) 5th amd as developed in Miranda against self-incrimination
(1) Protection of self-incriminationwhere a statement is the result of custodial interrogation risks to D's protected interests is so great that procedural protections are justified and required.
(2) Personal Autonomysince the decision whether or not to confess will have a marked effect on a person's future freedom, we want to preserve their freedom of choice when it comes to this decision.
(3) Pre-requisitites: (1) D is in custody and (2) there is interrogation
c) 6a right to counsel that applies primarily at trial, but applies also to some pre-trial
(1) Right to effective representation at trialFocused upon right to be represented at trial itself, but certain pre-trial events are sufficiently related to counsel's ability to function effectively at trial so that it applies to certain pre-trail events.
(2) Requirement: Adversary judicial proceedings have begun and that the event be a critical stage.
d) But why exclude confessions? Ds are already allowed to raise method of obtaining a confession as testament to its reliability. Shouldn't that be enough?
(1) Jurors tend to treat confessions with reverence, even when all other evidence suggests Ds innocence.
(2) Discourage LE behavior likely to elicit unreliable confessions.
(a) CONTRA: Others say that current interrogation techniques are only likely to elicit unreliable confessions if the suspect is retarded.
(3) Improper Interrogation is not a constitutional violation if no confession is produced, or the produced confession is not used at trial: Chavez v. Martinez
(a) 5a prohibits only compelling a person to be a witness in a criminal case.


Corroboration Many states require confirmation of the corpus delicti—that a crime was actually committed (other than an out-of-court confession). But this is not a federal constitutional requirement.
6. Improper Delay:
a) Undue Delay in Presentation:
(1) Federal Statute FRCP 5(a): if Ds presentation was delayed for purposes of interrogation, any statement after the delay became unacceptable is inadmissible. McNabb-Mallory
(2) Congress then modified, but did not overrule, the McNabb-Mallory rule to include 6 hour safe harbor:
(a) Statement is inadmissible in a federal prosecution if it was obtained during unnecessary delay in presenting an arrested suspect before a magistrate and it was obtained after that delay exceeded the 6 hour statutory "safe haven" time period (still requires it be voluntary under DP/other rules of evidence). [Corley (5-4)]
(3) If SCt were to reconsider McNabb-Mallory, would the exclusionary requirement be reaffirmed?
(4) For exam: If past 6 hours + unnecessary delay, argue McNabb-Mallory automatic exclusion. If under 6 hours, then argue due-process violation because involuntary.
(5) McNabb-Mallory rule is NOT binding on the states, and is NOT a federal constitutional requirement.
(a) For federal constitutional purposes, undue delay will be one factor in ToC analysis.
(b) State courts may or may not have power to promulgate similar exclusionary requirements for violation of state law prompt presentation requirements.
(c) Ex: Texas law requires suppression of evidence obtained in violation of state statute, one says no unreasonable delay. D must show causal connection between delay and making of confession. This is inconsistent with McNabb Mallory rule. Not a single appellate case where D has shown the req'd connection.
b) 4a violations that make confessions inadmissible:
(1) Violation of 4a Right to Prompt Determination of PC.
(a) Benchmark: 48 hours PC determination (McLaughlin)
(b) ISSUE: Is a confession given during detention after reasonable period for PC determination admissible?
(i) Court has left this open, but in Powell several justices said delay needs to be "but for" cause of confession; this will rarely be the case because in most cases hearing w/in 48 hours would've shown PC. Also, Hudson vs. Michigan might apply—where Ct. said 4a exclusionary rule doesn't apply where 4a violation is failure to announce for warrant execution.
(2) Improper seizure under 4a can render confession inadmissible
(a) Confession challenged as fruit of improper detention or seizure (primarily an arrest), like in Wong Sun. Often but for causation is clear making the real issue attenuation of the taint.
c) Recording and Interrogation of cases: Some of statutes requiring recordings, some states train officers because of recordings, sometimes expert testimony is introduced.
(1) Use of expert testimony for confessions: Some say right to challenge credibility under Crane includes right to introduce expert. Others have said inadmissible or at least no error because needs to come from beyond usual human experience. Especially reluctant if invading province of jury to assess credibility. Cannot comment on specific interrogation in controversy.
d) Judicial Review of Offered Confessions for Reliability: Some want trial judges to scrutinize this. Using probative value vs. unfair undue prejudice is already allowed. Others want to expand.


Dix has suggested that confession law should require more than Ds being aware of their abstract legal rights, but also of their tactical positions if they choose to confess. Perhaps if a confession assures conviction, it should be treated as a waiver of the right to trial.
2. Basic Requirements
a) Rule:
(1) A confession is involuntary if it is:
(a) A product of coercion (improper force or threat of force), OR
(b) A result of overbearing of the will ("psychological coercion") (ToC test)
(2) State Action is Required (Connelly): If D's confession is involuntary for some other reason (like where D had undisclosed mental illness thought G-d told him to confess or die), fed. con'l law is not implicated, but if there is evidence of police coercion or overreaching causally related to the confession, any mental abnormality of the suspect is relevant to assessing the impact of that police action.
b) Factors for ToC Test:
(1) Extensive cross-questioning
(2) Undue delay in arraignment
(3) Failure to caution a prisoner
(4) Refusal to permit communication with friends and lawyer
(5) Duration and conditions of detention
(6) Manifest attitude of police
(7) Diverse pressures which sap his resistance and self-control
(8) Deception by POs (Frazier) / Misrepresentation of Law by POs
(9) False Promises (Fulminante)
c) EXAMPLES:
(1) Frazier: D of normal intelligence. PO lied and said counterpart had made confession to murder, short duration of questioning etc. = voluntary
(2) Greenwald: D held overnight in cell, didn't sleep, w/o medications, 9th grade education, no food, but he admitted he knew his rights and had not asked for food or medication = involuntary under ToC.
(3) Fulminante: where gov't informant said if you confess I will protect you in jail = involuntary under ToC
(4) Moore v. Czerniak (9th Cir.): where PO suggest if you comply we will help. Call Deputy DA "we won't jam you." Would go to bat for them like they did for the bro. Fair shake, etc. (though technically didn't lie because not charged w/ capital murder but felony muder) = involuntary under ToC
d) Critique: Voluntariness isn't a fact but a characterization (Posner). There is no clear standard to determine when confessions should be excluded on voluntariness grounds.
a) Promises:
(1) Traditional requirement: excluded confessions obtained as a result of a promise or inducement made by a person in a position of authority, concerning the charges to which D confesses (e.g. if D is told he'll get a shorter sentence if he confesses).
(2) Now: Promises are no longer dispositive, merely one factor to be considered in the ToC test. [Fulminante: where gov't informant said if you confess I will protect you in jail = involuntary under ToC]
(a) Particular promises may be more troublesome then others such as false promises of leniency (may be issue of unreliability because innocent person likely to confess)
(3) Texas: theoretically a more rigorous standard. (Though this is almost never met). If the promise was a) made by an authority figure, and b) likely to compel a false confession, it renders the confession involuntary.
b) Deception:
(1) General Rule: Also only one factor in ToC analysis. Not controlling. Frazier.
(2) Alternative formulation: Deception will invalidate a confession if it is the sort of deception that under the circumstances is reasonably likely to induce an innocent person to make a false confession.
c) Burden of Proof: P must demonstrate voluntariness by a preponderance of the evidence (BARD not required).
d) Harmless Error: If appellate court is convinced BARD that the involuntary confession did not cause the conviction, it's harmless error and reversal won't be required.
e) Obviously states can provide more protection. For example Tex. holds that as a matter of state voluntariness law if coerced by private action = involuntary ex: Victims beating assailants to extract confessions
2. Miranda Decision: First determined that custodial police interrogations implicated the 5A.
a) Miranda Innovations:
(1) 5A applies to police interrogation.
(a) Early Conception of 5A: That it did not apply to interrogation, only situations of "legal compulsion" (e.g. can be compelled to speak at risk of contempt, to incriminate self at risk of perjury).
(2) Creates a Right to Remain Silent:
(a) In most situations, 5A simply means a right not to answer some questions...have to invoke the right to use it. Miranda allows ppl to simply say nothing.
(b) Though not an absolute right: (Hiibel)
(3) Per Se Rules: Miranda stressed the development of per se rules, which, if violated, would require the exclusion of evidence.
(4) Emphasis on Right to Counsel: This was the court's major assumption. The Miranda court believed that the decision would put counsel in interrogation rooms.
(a) In reality, the vast majority of ppl waive the right to counsel. Warren Ct never anticipated this. Generally, when D does invoke the right, PO don't continue with interrogation—it's not worth the time.
b) Two Major Issues:
(1) What requirements does Miranda place on POs?
(2) What effect do these requirements have on admissibility of evidence?
c) Conceptual/Doctrinal Basis for Miranda
(1) Fifth Amendment privilege against compelled self-incrimination applies during custodial interrogation.
(2) Custodial interrogation places self-incrimination privilege at such exceptional risk that unusual protections for the privilege are required in this context.
(3) U.S. Supreme Court has power to promulgate rules for providing such protection and to require exclusion of even voluntary confessions to encourage compliance with those rules.
(4) State courts may be willing to construe state constitutional self-incrimination provisions as imposing similar requirements. If so, these state law requirements may be more protective of suspects' interests than federal constitutional requirements.
d) Basic Requirements:
(1) Limited to Situations that involved both: (If either is lacking, we're left with voluntariness rule)
(a) Custody, and
(b) Interrogation.
(2) Requirements for Police:
(a) Must Give 4-part warning:
(i) That suspect has right to remain silent
(ii) Anything said can be used against him
(iii) That suspect has the right to the assistance of counsel and counsel's presence during questioning; and
(iv) That suspect will be provided atty if he is unable to afford one.
(b) These are per se requirements: It's not relevant that D already knew his rights. If even one of these warnings isn't made, exclusion is automatic.
(i) Exception: D obviously can afford counsel or already has counsel. 1: If P can prove that it was obvious to POs that person has or is able to provide his own counsel, then the fourth part of the warning is irrelevant.
(a) But if there is any doubt, we won't engage in ex post facto inquiries. D gets bene of doubt.
(c) Warnings not talismanic: Warning does not have to be in the exact language of the opinion.
(i) Examples:
(a) Where kid's mom asked if he would have atty later if he did not request one now. PO said yes when he went to ct. and could have one know if he wanted. D argued not adequately warned that free atty available prior to questioning. Ct. said this complied. California v. Prysock
(b) Where warning said "if you want a lawyer and can't pay one will be appointed for you when you go to court. SCOTUS narrowly decided that this complied with Miranda. The warning wasn't confusing because it anticipates the question when do you get one, under state law you get atty when you go to court. Duckworth v. Eagan.
(c) Where warning said you have right to talk to attorney before questioning. And later, said right to use any of these rights at any time during this interview. Despite the fact this suggests you can only talk to atty before answering any questions, and that you must answer questions Ct. said complied with Miranda. Florida v. Powell.
(ii) TAKEAWAY: police get in trouble when they try to explain these rights. There's a difficulty in implementing SCt's approach: there isn't a stationhouse lawyer on hand; BUT SCts. been unsympathetic to proposition tinkering with warnings makes them ineffective.
(iii) Miranda doesn't tell the suspect that he has a right not to be questioned or to cut off questioning. This is a big problem with it. The court assumes everyone will understand this.
e) Rights Conferred on Suspect:
(1) Suspect has right to remain completely silent during custodial interrogation, rather than just a right to invoke the self-incrimination privilege in response to self-incriminating questions.
(2) Suspect has a right to the presence of counsel during any custodial interrogation, and to an attorney provided at public expense if the suspect is indigent
(a) Can't be questioned until lawyer is present or suspect waives right to counsel.
(b) We give atty at public expense because of equal protection
(3) Suspect has the right to a four-element warning:
(a) there is a right to remain silent;
(b) anything the suspect says can and will be used in evidence against the suspect;
(c) the suspect has the right to the assistance of counsel and counsel's presence during questioning; and
(d) the suspect, if indigent, has the right to appointed counsel.
(4) Suspect has a right to halt interrogation, to revoke waiver, and even to avoid interrogation from beginning. Precisely whether and how the suspect must invoke this right is somewhat unclear.
(a) If counsel is requested, no interrogation must occur after that request until a lawyer is provided and present. [Edwards]
(b) Some language in Miranda suggests that if the suspect indicates a desire to remain silent, further interrogation is barred.
(i) But if a lawyer is present, interrogation may sometimes be permissible even over objections of suspect and lawyer. [Miranda footnote]
(c) If "interrogation" is not permitted, officers may be able to "reapproach" suspect and request that suspect "reconsider" his or her situation; see below.
EXCEPT: Some situations in which right of silence is invoked with atty present. Though it's unclear which ones. "Statements made might be free of the compelling influence of the interrogation process and might be construed as a waiver." The bottom line is that court doesn't tell us when this is ok. D will also often waive right to remain silent before right to not self-incriminate (D intends to make exculpatory statements).
f) Impeachment Exception: As in 4A law impeachment exception (Harris v. NY )for Miranda violations, but the confession MUST be voluntary because involuntary statements do not satisfy legal standards of trustworthiness unlike statements inadmissible solely because violated Miranda. (Mincey v. Arizona)
(1) Merely speculative that POs would proceed on basis that once suspect indicates desire for counsel no incentive to comply. Oregon v. Hass.
g) Warning efforts frustrated by the suspect: Patane left open what happens if suspect frustrates reading of rights by saying STFU I know, when no further effort made to continue reading. SCt seemed to assume Miranda violated here, but this was in part because government did not contest that responses were inadmissible. Dix says unresolved matter. Surely, PO don't have obligation to shout over D.
h) Use of Suspect's silence:
(1) Post-warning Silence Not Admissible: P can't produce evidence of Ds silence after warnings as evidence of guilt (e.g. a normal person in this situation would have denied guilt). This is true even though silence is admissible as a general evidentiary rule. It's unfair to tell him he has a right to remain silent and then use it against him. Doyle v. Ohio; Fletcher v. Weir
(2) Silence before warnings admissible: There's an argument that this shouldn't be admissible either because D may be acting in reliance on the privilege. Some states, including TX, have adopted this. But SCt rejects.
(a) Can use pre-arrest silence to impeach D. Jenkins v. Anderson.
(b) Can also question based on inconsistent statements made after arrest and receipt of Miranda. He chose to speak so this is okay. Anderson v. Charles.
5. Applicability of Miranda: The Threshold Requirements
a) Statement Must be Response to "Interrogation"
(1) General Rule: Interrogation is either:
(a) express questioning; or
(b) "functional equivalent," i.e., any words or actions (other than those normally incident to arrest and booking) that the officers should know are reasonably likely to elicit an incriminating response from the suspect. Objective standard, but subjective intent will likely have bearing on whether the PO should have known something was likely to elicit incriminating response [Innis]
(2) Issue: What "psychological ploys" (if any) come within this definition of interrogation?
(3) Not Interrogation:
(a) PO's offhand comments about fear that a child would get hurt if they didn't find the murder weapon soon (though this is 'psychotic') (Innis)
(b) Bringing in suspect's wife, putting tape recorder in there with them; Dix thinks it so obviously you thought it was going to work for interrogating (Mauro)
(c) Silence: Even though it's well-established that awkward silence is likely to elicit D to talk. The court isn't going to go so far as to establish an affirmative duty to make small talk.
(4) Unclear: HypoBallistics report thrown down. Your gun was used. This might occur before POs start traditional interrogation and after counsel right invoked. Lower courts split. Dix thinks Miranda ought to cover it, but SCt suggested in Innis narrow application may be ok, just providing info, but unlike Innis it is directed at suspect, he is essentially invited to speak.
(5) Interrogation:
(a) Exploiting Weakness of Suspect: E.g. "Christian Burial Speech": police PO gives speech in car on way to another jail where his atty is waiting—"Rev., I don't want you to say anything, but just think how sad that this little girl isn't going to get a Christian burial." This was clearly designed to stimulate self-incrimination, and specifically exploited Ds likeliness to be persuaded by religious rhetoric.
(b) Bringing in a fake evidence, saying "don't say anything, just look." (lower courts split, Dix thinks ought to cover)
(c) Telling D that invoking right to counsel will eliminate his right to make an informal deal? Austin COA says this is interrogation. While it's not designed to illicit directly self incriminating response, it is reasonably likely to change decision to submitting to interrogation further w/o present atty. Dix thinks functional equivalent interrogation should include likely to give up right to atty and submit to further interrogation, which is likely to lead to guilt.
b) Defendant Must be In "Custody"
(1) General Standard: Defendant must reasonably perceive she is not free to leave officer's presence (this applies to stationhouse as well)
(2) Further Requirement: Detention must not be just a traffic stop or, apparently, field investigatory stop. [McCarty]
(3) Apparent ultimate requirement: Suspect must either be under formal arrest or its functional equivalent.
(a) Objective standard. PO's own views about custody is irrelevant unless he makes them known to suspect either by saying so or through manifestations. [Stansbury v. California]
(i) Would a reasonable person in regard themselves as free to decline the POs invitation or leave the stationhouse if applicable? (emphasizing high-risk self-incrimination situations Miranda was aimed at)
(a) For age purposes we look at reasonable person in suspect's position. [JDB]
(4) Suspect's youth is properly considered as long as it was known to the interrogating officer or would have been apparent to any reasonable officer. [J.D.B.]
(5) Suspect's prior experience with law enforcement cannot be considered [Alvarado]
(6) Custody does not need to be for the offense to be interrogated about.
(7) Custody::
(a) Field situations where D is clearly not free to go are custody. Questioning of D in his own bedroom by 4 POs = custody. Required Miranda. [Orzco v. Texas]
(b) Where suspect admits to being present at murder? Investigating dad because believed son had done it. Dad admitted to being present, interrogation continued w/o Miranda—reasonable suspect would then realize not free to leave, even if they had been previously, thus under Stansbury needed Miranda = custody after admission.
(8) Not custody:
(a) Voluntary appearance not custody:
(i) Asking parolee to drop by for a convo, no restriction on freedom = not custody. Mathiason.
(ii) Probationer appeared at probationer's office in response to request = not custody. Murphy.
(iii) D called PO after he and several others attempted to rob drug dealer, and one of the others killed the dealer. He confesses. PO says you are not under arrest come to the stationhouse, statement from stationhouse admitted = no arrest, this was voluntary, not under arrest, allowed to leave unhindered by PO after brief interview. California v. Beheler.
(iv) Where guy raped and murdered 10 y/o girl. PO found out he had seen her, went to ask him to come down to answer questions. He said ok. Made incriminating statements w/o Miranda on remand ct. said = not custody, reasonable person would feel free to decline. Stansbury v. California
(b) Post-conviction incarceration as custody: Howes v. Fields—escorted to conference room questioned for 5-7 hours by two sheriffs deputies for crime before imprisonment, told him several times free to go back to cell, but obvi correctional officer would have to escort him, well-lit, conference room, door sometimes left open, guy himself said "not uncomfortable" no physical restraint or threats = no custody
(c) Note: While the fact D came to stationhouse may suggest he didn't think he was free, on the other hand, he might have voluntarily gone to lie and turn investigation away from him, talk his way out. This happens a lot.
c) Exceptions: Miranda does not apply despite both "custody" and "interrogation"
(1) "Public Safety" Exception
(a) General Rule: Officers can engage in custodial interrogation without complying with Miranda in certain situations where questioning serves important "public safety" needs. [Quarles]
(b) Objective standard: Officer need not actually intend that questioning be for this purpose in order for this exception to apply. [Quarles]
(c) Ex: POs find robber in grocery store w/o his gun, they can ask him where it is beforehand.
(d) ISSUE: What contours of public safety exception? How many ppl have to be involved? How grave the threat? The court leaves this open.
(2) Routine Processing Questions: Miranda does not apply during the asking of routine "booking" or processing questions like DOB, age, height, occupation, but cannot be designed to illicit incriminating admissions. [Muniz plurality] (ex: what is your occupation? Pimp. This is ok)
(3) Request for Consent to Search: Miranda does not apply to a request that a suspect submit to a blood alcohol test [Neville], and probably to other requests for consent to search because they are not interrogation. Similar to request to fingerprinting or photography. While may be likely to incriminate a D, it is not testimonial. No right to counsel to decide whether to respond affirmatively to consent to search.
d) Special Problem Areas in Application of Miranda
(1) Questioning During Traffic Stops
(a) Miranda does not apply to a "traffic stop," but it becomes applicable if the "stop" becomes an "arrest" for a traffic violation. [Berkemer v. McCarty]
(b) In some situations, despite the absence of a formal arrest the suspect is in custody for practical purposes and Miranda applies. [McCarty]
(2) Questioning During Field (Or Terry) Stops
(a) Supreme Court has assumed Miranda has no applicability to questioning during Terry stop. [McCarty]
(b) Alternative: Suspect may have only right to remain silent (no right to counsel) and therefore warnings regarding only this need be given.
(c) Issue: Can refusal to identify oneself during a Terry stop be made a crime? YEP!
(3) Miranda gives a suspect no "right" to be contacted by an attorney for purposes of offering to provide assistance during interrogation, nor does Miranda establish a per se rule barring police interference with counsel's efforts to contact a client-suspect. [Moran v. Burbine]
(4) NOTE: Arrested person does not have to be informed immediately of his rights. It's simply a prerequisite for interrogation.

Issue:
Is it possible to have a Terry stop at the stationhouse? (such that person did not believe he was free to leave, but it did not amount to custody for Miranda purposes? (e.g. D goes voluntarily, suspicion raised, detained briefly to clarify)?
2. Right extends to Invoking Right to Silence: (Mosely) If suspect invokes only right to remain silent, reapproach is not absolutely barred by any per se rule. A reapproach must be done "very carefully" so as to "scrupulously honor" suspect's continued right to cut off questioning by again indicating desire to remain silent. [Mosley]
a) Invocation of right to remain silent does not bar reapproach. Edwards does not apply in these situations.
(1) This means it makes a huge difference, which right D invokes to avoid questioning.
(2) But: if D invoked right to silence, this will make it harder for P to show that D effectively waived right to silence.
(3) Suspect must unambiguously invoke right to remain silent, at least after having participated in discussion with officers. [Thompkins] (where D was largely non-communicative but was read rights and submitted to interrogation by staying and understanding rights)
(4) Application: Mosely D arrested questioned about specific robbery, said no want to answer your question, several hours later had him brought for questioning concerning death during robbery of a another location, gave Miranda and D admitted to being involved = reapproach was OK
b) Test for Mosley Right to Remain Silent Reapproaches: Whether the POs under the circumstances have sufficiently created impression that they will not honor D's invocation of his rights. It's about voluntariness of D's decision. Looking at:
(1) Time (more time the better)
(2) Personnel (if D reapproached by same officers suggests POs are not honoring his right to stop questioning; different officers aren't as bad)
(3) Location (Ct. thinks this suggests moving suggests starting anewbut Dix is skeptical about this when moving from one PO controlled location to another, however, Mosley ct. suggest doesn't matter)
(4) Relation of crimes (if separate and unrelated offense then this suggests voluntary)
(5) Compliance with Miranda (Don't have to begin with full and careful recitation of warnings, but the fact they have done so suggest they are honoring D's right to invoke rights)
7. Ambiguous References to Counsel:
a) D must unambiguously assert right to counsel. It's good police practice to stop questioning when D makes an ambiguous reference to counsel, but it is not demanded by the 5a. (Davis: where D said maybe I should talk to atty = no invocation)
(1) Application: this applies where D has made a waiver and then reasserted the right to counsel.
(2) Lower courts approach: They have largely held that any reference to counsel requires police to stop. SCt says no-this may be good police practice, but it's not a constitutional requirement.
(3) Rationale: Need bright line rules. But this is spurious, because Miranda is already rife with ambiguity.
b) Problem with Davis Approach:
(1) Disparately affects least sophisticated Ds: unsophisticated Ds are unlikely to make an unequivocal request, especially in the face of POs telling them only an idiot would want a lawyer.
(2) Davis drastically decreases the significance of the Edwards rule, making it much harder to trigger.
c) What constitutes a request for counsel?
(1) Not appearing in court with a lawyer. (McNeil) p. 447: Appearing with PD at bail hearing is not a request for counsel for Miranda purposes (though it will be for 6A purposes).
(2) Not anticipatory Invocation: Suspect must invoke the right to counsel when police approach to get a waiver to interrogate them. (McNeil)
(a) Rationale: would thwart law enforcement activity. D could invoke before process even begins.
(b) But this is a sketchy rationale: is LE interest in having isolated access to D one we really want to protect? Doesn't this suggest overbearing of the will?
(c) Bobby v. Dixon— D not in custody invoked right to counsel. Then taken into custody. SCOTUS said earlier invocation was anticipatory (there was no custody although there was interrogation) and we have never held can invoke Miranda rights anticipatorily.
(d) Salinas Co urt didn't address whether person who formally invokes right prior to being in custody whether that invocation could be used against him at trial. Scalia using in Ct D's silence out of court, is not compelling to be witness, so no 5th amendment issue.
d) What is required when effective request is made? Lawyer has to be present at interrogation. It's not enough just to allow D to talk to a lawyer. Still, Edwards bars reapproach.


This is important because POs will generally avoid using words like "waiver" and rights."
8. Waiver of Miranda Rights:
a) What Must be Shown? (Johnson v. Zerbst standard)
(1) That D made a choice that might constitute waiver (sufficient manifestation of waiver)
(a) Silence following warnings not enough.
(b) Express waiver is not required, and waiver can be :implied" or "inferred" from words and actions of defendant. [Butler]
(2) That the choice was effective, being both:
(a) Voluntary
(b) Intelligent [Edwards]
b) (2010) cast doubt on whether Miranda law continues to impose a meaningful requirement of proof of "waiver."
(1) Thompkins rejected argument that officers could not question Thompkins because the only evidence of waiver was (a) giving of warnings; (b) indication that he understood warnings; (c) he made no request to remain silent; and (d) he eventually made an incriminating statement.
(a) Warned & Understood rights + did not invoke rights affirmatively (submitted to interrogation) + Make incriminating statement later on demonstrates waiver of right to remain silent.
(2) Language of Thompkins suggests prosecution need only prove suspect was warned, suspect understood the rights, and suspect did not invoke those rights.
(3) Issue: Does the Thompkins approach also apply when issues is whether suspect waived right to interrogation?
(a) Ct. technically only addressed right to remain silent, but may have suggested so. On other hand, not hard to require clear manifestation for atty (do you want atty?), and it is mechanism for exercising right to remain silent so maybe we should require more to waive.
c) P has burden of proof. If P wants to offer statement made by D in circumstances where Miranda applies, P has burden of showing that D effectively waived right to remain silent and also right to assistance of atty if one wasn't there.
(1) Standard of proof: Preponderance of the evidence (same as for voluntariness).
(a) Rationale: doesn't make sense to have higher standard for auxiliary protection that's only meant to ensure voluntariness.
d) Conduct Requirement:
(1) Express waiver not required: An implied waiver can suffice. But what will constitute an implied waiver? D need not be proved to use words that expressly waive rights. What is required then? The court doesn't really tell us. Thompkins suggests low bar.
(a) Mere silence upon being informed of rights is not enough. However, conduct indicating a waiver can be enough, even without words.
(b) PO says: "here's your rights, want to talk?" Most courts will say this is enough.
(i) Implication: focus in Miranda law is really just the warnings being given.
(c) Tague v. LA—D confession giving during interrogation for robbery. PO said didn't remember if asked D if he understood rights or any questions to determine literacy or comprehension of rights. No evidence that D knowingly and intelligently waived rights.
e) Basic Effectiveness Issue: Should effectiveness of waivers of Miranda rights be decided according to the same criteria used to determine the due process "voluntariness" of a confession?
(1) Miranda arguably suggests need for greater sensitivity to questionable police conduct, so that standards should be tighter.
(2) Alternatively, perhaps Miranda, by giving suspects the right to the assistance of an attorney, reduces the need for stringent standards so either the same or more lenient criteria should be used.
d. Requirement that Waiver be "Knowing and Intelligent"
(1) The separate requirement that a Miranda waiver be knowing and intelligent may impose requirements more stringent than those in the due process voluntariness rule.
(2) Standard waiver analysis suggests that defendant must be aware of rights that defendant is "waiving," i.e., the right to counsel and/or silence. [Bustamonte]
(3) Recent case law suggests that defendant need only be aware of, i.e., understand, the abstract law of which she is informed in the Miranda warnings. [Moran v. Burbine]
(a) This would not require awareness of facts or law that most suspects would find useful in making a "tactical" or "wise" decision as to whether to invoke rights to silence or assistance of counsel.
(b) Not telling D/misinformation about atty trying to contact D doesn't prevent knowing and intelligent waiver because suspect is unaware of it. Moran.
(4) Awareness of subject matter of questioning: Waiver of the Miranda right to counsel during interrogation does not require that the suspect know or understand the subjects that will be addressed in the questioning. [Spring]
(5) Awareness of admissibility of other evidence: A defendant who has given an inadmissible incriminating statement need not know the inadmissibility of that statement in order to effectively waive her rights in connection with giving another, later statement admitting much of the same thing. [Elstad]
(6) Not knowing seriousness of offense does not affect intelligent/knowing waiver. Elstad.
(7) Issue: If facts show that defendant was unaware that oral confession would be admissible, does this preclude a finding of a "knowing" waiver? [Does a failure to actually understand that anything "said" can be used to prove guilt render waiver invalid?] [Barrett]
(8) Issue: If a waiver lacks the "intelligence" required to be effective but this is not the consequence of police "overreaching" or misconduct, is the waiver ineffective? [Connelly suggests still effective, but apparently does not resolve matter] Maybe 5a might only protect against gov't coercion. Maybe interests are so important though we don't want unintelligent waivers regardless of the cause.
e. Requirement that Waiver be "Voluntary"
(1) Whether a Miranda waiver is voluntary is apparently determined by using the same standard applied for voluntariness under the due process voluntariness rule. [Connelly]
(2) Waiver is ineffective if, on the totality of the circumstances, the defendant's will to avoid making a waiver was "overborne" by coercive activity of the interrogating officers.
(3) Voluntariness of waiver not affected by unsuccessful efforts of attorney to contact suspect and wrongful actions by officers in frustrating these efforts, if suspect was unaware of attorney's efforts and police obstruction. [Moran v. Burbine]
(4) Mental Abnormality: Evidence that a suspect was mentally abnormal is not relevant to determining the voluntariness of a waiver of Miranda rights, even if it shows that the suspect believed himself "compelled" by pathological considerations to give the confession (and waive the rights). [Connelly]
(a) But if POs aware of impairment or had used the impairment then there might be misconduct triggering voluntariness.
f. General Waiver Effectiveness Issues
(1) Issue: Should use of deception in obtaining a waiver render it ineffective, always or sometimes?
(2) Issue: Should showing that waiver was made in response to a promise render it ineffective?
(3) Issue: Should use of "psychological techniques," such as "Mutt and Jeff" ploy or expressing sympathy for suspect's situation, render waiver ineffective?
g. Scope of Waiver Issues
(1) Waiver covers all police questioning that suspect should reasonable anticipate will result from situation [Wyrick v. Fields; where lie detector test, reasonable person would anticipate that includes post-test discussion]
(2) Waiver apparently may be limited, as for example to questioning concerning oral (but not written) statements [Barrett]
"Question First" Situation [Siebert & Dixon]
a. Basic question: What is the effect on the admissibility of a statement made after officers comply with Miranda, if there was earlier questioning (and earlier incriminating statement made) without compliance with Miranda?
b. Siebert Plurality (4 justices):
(1) Special care required when facts show under an objective test a "question first" police strategy adopted to undermine the warnings.
(2) In these situations, prosecution must show that the warnings given could have served their intended purpose on the facts of the specific case: would a reasonable person in the suspect's position understand the warnings "to convey a message that she retained a choice about continuing to talk?"
(3) Factors to be considered in determining whether warnings were effective when given only after incriminating statement made during noncompliant questioning-
(a) timing between two statements;
(b) settings between two statements;
(c) extent to which interrogator treated second session as continuous with first;
(d) overlapping content of two statements;
(e) continuity of police personnel in the two sessions; and
(f) completeness and detail of first statement
(g) use of first statement to get second*
(h) intervening events*
(4) A major consideration is whether the police advised the defendant after the warnings that the earlier admissions could not be used.
c. Kennedy Siebert Concurrence: A "special" analysis should be used only where a two-step interrogation technique was used in a calculated way to undermine the Miranda warning. (Exception to general no fruits rule for Miranda)
(1) If deliberate use of question-first strategy is shown, post-warning statements should be inadmissible unless prosecution shows adequate curative measures.
(2) Adequate curative measures might include:
(a) admonition that prior statements inadmissible
(b) substantial break in time and circumstances
(3) Issue: What is necessary to prove calculated use of two-step technique?
d. Issue: What is existing federal constitutional law in light of split in Seibert?
(1) Some courts focus on Kennedy concurrence, as narrowest concurrence in result reached by Court as a whole.
(2) Per curiam opinion in Dixon seems to assume Seibert plurality analysis is "the law" (
e. Issue: What do Seibert and Dixon suggest for situations in which officers engage in efforts at persuasion without
complying with Miranda but comply with Miranda before suspect makes any self-incriminating admissions?
(1) Dixon suggests that these situations are unlikely to be viewed as permitting reasonable challenges to statements on the basis that the "interrogation" conducted in violation of Miranda showed the later compliance with Miranda requirements was not effectiv.
f. ISSUE: how is cat out of the bag different than D making statement on basis of PO's deception that D has been identified by several witnesses?
• Does it maybe affect abstract awareness i.e. intelligent and knowing???
Applications:
• ElstadWhere kid arrested PO comes to arrest. Talks to mom and D makes incriminating statement. then give Miranda rights waives them and makes full admission.
o 1st statement: partial not very detailed
o Minimal overlap between statements
o Timing between interrogations = several hours
o Different settings (home and sherriff's office)
o Not same POs
o No treatment as sessions as single unit
o No use of first statement to get second one
o Intervening event = transport
o = ADMISSIBLE
• Dixon (2011)- Dixon had refused to speak to POs. They talked to him for 45 minutes w/o warning. Indicated accomplice cooperating. D came back later I talked to my atty and I want to tell you what happened. Miranda rights given, D waives them on written
o 1st statement is minimal (admitted theft but not murder, in fact denied murder, might make no statement at all because inconsistent with later admission to murder)
o Minimal overlap between statements, indeed they were contradictory
o Timing = Several hours between interrogations
o Settings = Same stationhouse, but moved between sessions
o Same POs
o Treated as one session interrupted by a brief break
o No use of first statement to get second (he denied murder)
o Intervening event = purported consultation of counsel
o = ADMISSIBLE
• Compare to Seibert - Woman gives full confession about murder of step son by fire, then Mirandized, then repeats full confession again.
o 1st statement: Full confession very detailed
o Statements were mirror images
o Brief 20 min break
o Same location
o Same POs
o Treated as continuous session
o Used first statement to get second, Didn't you tell me this is how it went?
o Only intervening event short 20 min break.
o = INADMISSIBLE
• HYPO: what if original confession inadmissible that led to glock revolver inadmissible because involuntary under due process standard? Ct. hasn't been crystal clear on this. Dix thinks (and Seibert dissenters agree) if inadmissible because involuntary then it does apply because policy against coercing confession is high, and the loss is low.
• Under CL involuntary confession was inadmissible because unreliable, but fruit of poisonous tree was reliable and therefore admissible.
Applicability of Sixth Amendment Right
a. Two "Threshold" Requirements:
(1) "Adversary Judicial Proceedings" against the suspect must have been initiated.
(a) Having a lawyer isn't enough need adversarial judicial proceedings Burbine
(b) D questioned after he was arrested and arraigned, Ct said = adversary judicial proceedings, but didn't say what constituted arraignment. Jackson
(c) D presented to magistrate (D jailed until posted bail) = adversary judicial proceedings Rothergy
(d) Indictment would also meet this criteria it is a formal document of accusation.
Rule: (1) 1. D has been arrested; 2. A PO filed w/ magistrate sworn document that recited that D charged with specified felony; 3. D appeared before magistrate; 4. The magistrate informed the D of the charge against him and set bail; and 5. D was jailed until he posted the set bail
(d) ISSUE: Not clear if formal doc req'd if judge tells D what he is charged with and sets bail.
• Court in Rothegery focused on first appearance before judicial PO at which D told formal accusation and impositions are imposed on his liberty, but later Ct said accusation filed with judicial officer sufficiently formal, at least when accusation prompts arraignment and restrictions on D's liberty to facilitate prosecution. (maybe suggests presentation before judge or formal accusation causing liberty restrictions is good enough)
(2) "Critical state" of the proceeding: Officers (or someone acting under their direction) must have "deliberately elicited" a self-incriminating statement.
(a) Officers may deliberately elicit a self-incriminating statement by conduct that would not constitute "interrogation" under Miranda. [Fellers v. United States]
(b) Discussion informing arrested suspect of the "situation" was deliberate elicitation. [Fellers]
(c) Christian burial speech was deliberate elicitation Brewer
(d) Handicapped kid might get hurt conversation no invite Innis would be deliberate elicitation (case hadn't proceeded to adversarial judicial proceedings)
b. Unlike Miranda, no requirement of "custody" exists. [Massiah]
c. Initiation of adversary judicial proceedings: occurs when sworn document is filed purporting to "charge" the defendant and defendant appears before judicial officer on the charges. [Rothgery]
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