Criminal Procedure
Class Seven
Today’s Topics
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Confessions & Due Process
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Voluntariness Test
Role of Counsel
Deceit
Police Action
Today’s Topics
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Confessions & 5th Amd Limitations
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Miranda
Exclusionary Rule
Developments re: “Custody”,
“Interrogation”
Invocation & Waiver
Confessions: Theories for
Analyzing
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Due Process
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Right to Counsel
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5th Amd
Involuntary Confessions
6th Amd
Following Formal Charges
Self Incrimination
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5th Amd
Miranda
DUE PROCESS ANALYSIS
Historical Background
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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
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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
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Appropriate response to intersection of
police practices and person’s free will to
withstand coercion
Issues Confronting Court
under Voluntariness Test
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Personal characteristics of accused
Physical deprivation or mistreatment
Psychological influences
Suspect’s awareness of rights
Policy Factors
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Untrustworthy
Offensive to civilized justice system
U.S. as accusatorial system
Human dignity, personal autonomy
Police deterrence
Role of Counsel
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Spano v. New York
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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
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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
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Potential for Waiver
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Collateral Uses
Role of “Deceit”
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Police deception will not necessarily
cause statement to be involuntary
Examples
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Good cop/bad cop
False representations about evidence
Promises of leniency
Threats of more severe punishment
Role of “Threats of Violence”
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Generally dispositive
Arizona v. Fulminate
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Totality test
Credible threat {or actual violence}
Requirement of Police Action
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Colorado v. Connolly
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Must be link between course of state
activity and resulting confession
Free will vs. police overreaching
FIFTH AMENDMENT
LIMITATIONS
Historical Link
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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
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Concern: Coercive atmosphere inherent
in custodial interrogation
Miranda
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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
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Burden?
Miranda
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“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
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Role of counsel: ensure that suspect’s
ability to choose whether to speak or
remain silent is unfettered
Miranda
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“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
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Exclusive procedural safeguard?
Miranda
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Waiver possible
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Test: voluntary, knowing and intelligent
Miranda
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Invocation / Assertion
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At any stage
Contrast, invoking privilege against self
incrimination at trial
Miranda
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Impact of D’s actual knowledge of
rights
Bright line rule
Miranda and Habeas Review
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Miranda claims can be litigated on
collateral attack
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Contrast: 4th Amd violations
Miranda & Congress’ Response
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Section 3501
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Appears designed to “overrule” Miranda
Return to voluntariness standard
Supreme Court’s Response to
Congress
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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].
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Limitations still apply; rationale has changed
Impeachment
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Two possible forms
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Prior inconsistent statement
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Trial testimony
Prior confession
Silence
Use of Miranda-Defective
Statements to Impeach
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Harris v. New York
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Rationale: Shield provided by Miranda
cannot be perverted into license to use
perjury as defense
Oregon v. Hass
Contrast: Involuntary
Confessions
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Mincey v. Arizona
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Not admissible, even for impeachment
Impeachment with Silence
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Doyle v. Ohio
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Jenkins v. Anderson
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Post-warning silence
Pre-arrest silence
Fletcher v. Weir
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Post-arrest, pre-warning silence
Fruits of Miranda-Defective
Confessions
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Physical evidence
Second confession
Investigative leads
Fruits: Investigative Leads
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Michigan v. Tucker
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During Miranda-defective confession, D
gave police name of friend he claimed to
be with
Fruits: Second Confession
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Oregon v. Elstad
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“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”
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Exigent Circumstances
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New York v. Quarles
Miranda Developments
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Custody / Location
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Arrest
Prisoners
Police Station
Probation Officer
Terry
Interrogation
Miranda Developments
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Covert Activity
Crime-Based Requirement?
Adequacy of Warnings
“Custody”
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Key: If D is not in custody, Miranda
does not apply
Arrest
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Contrast
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Orozco v. Texas
Beckwith v. United States
“Custody”
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Prisoners
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Mathias v. United States [in jail for
unrelated reasons]
Questioning at Police Station [not
automatically “custody”]
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Oregon v. Mathiason
California v. Behaler
“Custody”
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Probation Officer interrogation
Test for all “custody” determinations:
Objective [not subjective intent of
officer]
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Note: Officer’s subjective intent might
become relevant if somehow conveyed to
suspect
Terry stops are not “custody”
“Interrogation”
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Rhode Island v. Innis
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Miranda safeguards come into play wherever
person in custody is subjected to either
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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
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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?
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Issue: Does Miranda apply only to
serious crimes, or to all custodial
interrogation regardless of the charge
Berkemier v. McCarty
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Rationales: clarity; practical application
Adequacy of Warning Given
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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
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Compare:
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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
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2 constitutional protections implicated
in Miranda warnings:
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Silence
Right to counsel
Waiver of Miranda Protections
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Issues:
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How does a suspect relinquish these
protections
Which party bears the burden of
establishing waiver
How is waiver shown
Waiver Background
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Miranda stated that valid waiver would not be
assumed from either
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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
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Relinquishment must have been
voluntary
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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
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North Carolina v. Butler
Moran v. Burbine
Teague v. Louisiana
Interplay Miranda and Due
Process Voluntary Claims
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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 Claims
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Colorado v. Connolly
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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
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“If, then”
Connecticut v. Barrett
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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”
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Concept: In certain scenarios, Miranda
warnings alone are insufficient … and
additional warnings or information
should be supplied
Miranda “Plus”
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Routinely rejected by Supreme Court
Scenarios in which claim has been
raised:
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Information about scope of questions
Advise about inadmissibility of prior
confession
Notice that attorney attempting to reach
suspect
Cases Raising Miranda “Plus”
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Colorado v. Spring [during questioning
about firearms violations, officers asked
if D had ever shot anyone]
Cases Raising Miranda “Plus”
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Oregon v. Elstad [“cat out of the bag”;
D unaware that his prior Mirandadefective statement could not be used
against him]
Moran v. Burbine [sister hired lawyer]
Waiver Following Invocation
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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 Invocation
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Issues
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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
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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
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Consequence of Invocation: Suspect is
not subject to further interrogation until
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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
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Oregon v. Bradshaw [D initiated further
conversation and thus waived his
previous invocation of right to consult
lawyer]
Suspect’s Invocation & Later
Initiation
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Davis v. United States [if invocation of
right to consult attorney is ambiguous
or equivocal, police can continue
questioning]
Suspect’s Invocation & Later
Initiation
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Smith v. Illinois [“Uh, yeah, I’d like
that”]
Exercise
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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
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Issue: Is invocation of counsel under
Edwards offense-specific
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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
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5th Amd -- Miranda
6th Amd -- once formal adversarial
proceedings have begun
Distinct protections
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Consider: McNeil v. Wisconsin
Renewed Questioning Once a
Lawyer’s Been Consulted
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Issue: Does Edwards protection cease
after suspect has had opportunity to
consult with attorney
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Can police then approach suspect and ask
if he would like to talk to them?
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Minnink v. Mississippi
Exercise
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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