Cases – quick reference
Entrapment
Grimes-8-informants pd on contingency
Hampton-9-when DP comes into play
Jacobson-6-child porn;repeated solicitation
Kelly-9-ABSCAM
Mathews-8-entrap.defense still available even if Δ denies element of crime
Russell-5,7,8,9-meth.maker w/ govt supplies
Sherman-5-drug addict
Sorrels-5-prohibition case defining subj.approach
Williamson-8-informants pd on contingency (overruled by Grimes)
Fed v State
Molloy-468-confession in state court subject to fed.ct std.
Withrow-35,583-fed.habeas relief is available to state prisoner convicted on basis of
statements obtained in violation of M.
Coerced Confessions
Ashcraft-20-36 hr incommunicado=coercion
Col.v Spring-21,31-coer≠ Δ’s ignorance about all topics he’ll be interr. about
Connelly-21,614-no police conduct causally related to confession=voluntary confession
(Δ mentally ill here)
Fenton-32,602-voluntariness of confession when cops used excessive friendliness.
Fulminante-19,22,612-credible threat of violence against Δ = confession involuntary;
harmless error & materiality
Harrison-22-FOTP
Hopt-11-Sc adopts common law rule of CC’s
Leyra v Denno-20-coerc=deception when cops pretended to be doctors
Lynmumn-20-coercion=cops’ misrep. law, deception
Perkins-21-no deception=covert interr.
Spano-20-manipulation=coercion
5th Am.
§3501-41,498-tried to legislatively overrule M.
Albertson-15-required records doctrine
Allen-28,582-psychiatric interviews to deem Δ sexually dangerous person not criminal
w/in meaning of 5th Am.
Barrett-545-Δ’s refusal to make written statement still = valid waiver of M’s.
Beckwith-26,28,516-focus=q’s initiated by cops after Δ in custody
Beheler-26,509,518-police station q’s necessarily ≠ CI if Δ voluntarily accompanies
cops.
Berkemer-26,27,518-roadside q’s during routine traffic stop ≠ CI
Bouknight-16-required records doctrine
Boyd-17-PASI involves private papers
1
Bradshaw-36,557-Δ initiates comm.w/cops after assertion of RTC.
Bram-13,20-factors for voluntariness
Brown-510-M’s will not purge taint of preceding illegal arrest
Brown v Miss-13-DP invalidates coerced conf.
Burbine-31,32,571- Although  must be informed of his rt to counsel,  not
Const.entitled to know that his atty wishes to see him.
Butler-33,543-lack of “specifically made” warnings ≠ no waiver recognized. Suspect
may sign waiver but still indicate he is willing to talk.
Byers-16-required records doctrine
Col.vSpring-31-k&I of waiver
Connelly-21,31,614-waiver by prepon.of evid.
Couch-18-PASI adheres to person
Davis-37,561-Δ’s request for counsel must be unambiguous.
Dickerson-507-M.=C.doctrine Congress can’t override M.
Dionisio-17-PASI & handwriting as phys.evid.
Doe-17-definition of “testimonial” evid.
Duckworth-25,511-M’s need not conform to precise formula as long as they “touch right
bases.”
Edwards-31,36,510,548-once Δ assert RTC, cops must cease all q’s on any topic until he
sees atty.
Elstad-31,32,34-Δ’s ignorance of full consequences of waiver=still voluntary
Estelle-28,581-psych.exam violated 5th and 6th Am
Fare-546-Δ’s request for prob.officer ≠request for atty under M.
Fisher-15-compulsion=physical or moral
Garrity-15-compulsion via threats of firing
Green-555-Δ asserted RTC good for 5 months
Harris-33,509-Δ’s M.less statements can be used to impeach him
Hass-509-statements obtained after refusal to honor Δ’s assertion of M’s can be used to
impeach him.
Heike-18-PASI ≠ remote dangers
Hoffman-18-PASI liberally construed
Holt-18-PASI & trying on clothes
Innis-28,519-handicapped kid speech; M’s needed for CI or functional equiv.
Jackson-22-when 5ARTC attaches
Johnson-18-PASI =party producing evidence, but not it’s production by other party
(cops).
Lefkowitz-16-PASI may be asserted in any proceeding if statements may incriminate in
later crim.proceeding
Mandujano-25,718- M’s not req’d before grand jury proceeding
Mathiason-27,509,518-police station q’s necessarily ≠ CI if Δ goes to station voluntarily
Mauro-526-CI≠allowing Δ1 and Δ2 to speak after Δ1 asserted RTC. Statements admiss.
McNeil-37,567- assertion of 6th Am RTC at bail hearing ≠ invocation of 5th Am
Edwards-based RTC during interr.
Mesa-526-Interr=adversarial & inquisitory q’s designed to elicit incrim.response; not just
listening by cop.
2
Minnick-36,550- after Δ asserts RTC, CI must stop and may not be restarted w/out atty’s
presence
Miranda-23,475-pros.has heavy burden to prove KVI of waiver;
Molloy-13,23-incorp. PASI into BOR.
Mosley-35,509,547-if Δ asserts RTS, cops may resume q’s later
Muniz-17,29,30,530-booking exception to M; testimonial v nontestimonial evidence
Neville-15-compulsion via required submission to tests
Orozco-26,538-CI can occur outside police station, even at Δ’s home.
Perkins-29,30,528-M’s not required when Δ unaware he’s speaking to undercover cop.
Portash-18-Δ testimony w/ immunity not admiss. at later trial
Prysock-25-elements of M’s
Quarles-29,503,532- public safety exception to M.
Roberson-548-after Δ asserts RTC, cops can’t interr. Δ re:other crimes.
Roberts-14-must invoke PASI in timely fashion
Royer-26-CI=room at airport
Shapiro-15-required records doctrine
Schmerber-17,29-testimonial v phys. evidence
Spring-514-Δ needn’t know in advance of all topics of q’s cops will ask or every
possible consequence of waiver.
Stansbury-516-cop’s subj.intent/undisc.view of Δ’s status irrelevant to assessment of
custody
Tague-543-waiver ≠ showing Δ given M’s and thereafter gave incrim.statement
Tucker-34,40,502-M not C.req.; fruit of poisonous tree not app.to M violations re: W’s.
Wade-17-PASI & human voice as phys.evid.
Zerbst-31,33,544-waiver=pros. shows intentional relinquishment or aband.of known rt;
but not technically adopted by M.ct.
Escobedo-23462-6th am rt to counsel-pt btw arrest and indictment arguably a critical
stage
Massiah-460-6th am rt to counsel prevents post-indictment, police-orchestrated
extrajudicial proceedings
Spano –20,459-6th am rt to counsel attaches when formally charged
6th Am RTC
Brewer-29,43,44,46,619-6th am; Christian Burial Speech as deliberate elicitation
Burbine-42-starts when proceedings turn accusatorial
Harvey-49-statements obtained in violation of 6ARTC admissible to impeach.
Henry-44,635-jailhouse informants; cops can’t intent.create situation likely to induce Δ
to talk after 6ARTC attaches; can’t stimulate conversation
Jackson-42,47-Δentitled to atty from time charges filed
Kuhlmann-46,636-jailhouse informant; post-indict. evid. gathered can be used as long as
informant passively listens/responds
Massiah-23,42,44,460-once proceedings begin against Δ, he has rt to legal rep. during
interr.
McNeill-42,44,-6ARTC offense specific; once asserted, interr.must cease
3
Moulton-45,49,634-can’t get statements from Δ after 6th Am RTC attaches, even if the
cops got them in way unrelated to pending charges; BOP on Δ to show cops took action.
Nix-48,49-6Th Am ER FOTP
Patterson-47,629-Δ who has had M’s has been sufficiently apprised of 6th Am rts &of
the consequenced of abandoning those rts, so waiver will be kv&i.
Zerbst-46-pros.must prove kv&I waiver by prepon. of evid.
Kirby-655-lineups;6ARTC hasn’t attached pre-indictment, so atty not req’s at lineup
Wade-641-lineup is critical stage to which 6ARTC attaches
4
I. Entrapment
Not a Const.law doctrine; so states not required to have; differs from state to state.
A. SUBJECTIVE APPROACH: from Sorrells – Entrapment proved if govt
agent induces innocent person who is not predisposed to commit the type of
offense charged. Sc more likely to find entrapment if govt agent had to
repeatedly, persistently request  partake in activity, if govt agent “befriends” .
Did govt have special info to suggest  was predisposed at time of initial contact
(per Jacobson)? Cops must have info that suggests they should even begin to
investigate (Jacobson)
1. Sorrels -- SC first recognized entrapment defense During Prohibition,
agent gained ’s trust and asked him 3 times for liquor before getting
some.
a. SC said cops can’t instigate a criminal act by persons otherwise
innocent in order to lure them into commission and to
punish them.
b. Focused on predisposition of . Therefore,  who claims
entrapment must be prepared to have his past and present
life scrutinized.
c. J.Roberts’ concurrence said courts must be closed to trial of
crime instigated by govt’s own agents. (focused on govt.
involvment.)
2. Sherman –govt informant met  at dr’s office where both men being
treated for narcotics addiction. Agent befriended  and asked  for source
for drugs. Agent repeated and persistently begged for drugs;  finally
agreed as a favor.  did not sell the drugs to agent for profit; more an act
of pity for agent’s “addiction.”
a. SC found entrapment as matter of law.  not predisposed cux
only did it after many requests, did it out of pity for agent, and did
not do it for profit.
3. US v Russell – 1973 – DEA agent offers to supply ingredient to  who
already manufactures meth.
a. Previous entrapment defense focused on predisposition of .
App ct expanded that to include element of whether there
was intolerable degree of govt participation in the criminal
enterprise. SC says no go.
b. SC affirmed this stance in 1958 in Sherman v US.
c. SC sticks with old predisposition standard here, but leaves open
possibility of case in which cop’s behavior is so outrageous
that it violated due process and bars govt from invoking
judicial processes to get a conviction.
d. Dissent: Majority uses subjective approach by looking at ’s
predisposition w/out considering govt involvement-Anyone
who commits a crime is guilty, regardless of
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“predisposition.” Only difference in the situations is
identity of the temptor.
e. Also, focusing on ’s innocence or predisposition makes
permissibility of cop’s conduct depend on past record and
propensities of  involved. Govt allowed to entrap a
person w/ crim.record more easily.
*So, objective approach that focuses on govt involvement should be used.
f. If govt does more than offer an opportunity, but rather induces
or instigates commission of crime by one not ready and willing to
commit it, regardless of predisposition or propensities, then
entrapment has occurred.
4. Jacobson v US – 1992 -  mail-ordered child porn when it was still
legal. Govt got his name from mailing list and pestered him continuously
for 26 months until he ordered more.
a. Holding: Because the govt overstepped the line between setting
a trap for the unwary innocent and the unwary criminal,
and as a matter of law failed to establish that petitioner was
independetly predisposed to commit the crime for which he
was arrested, SC reversed conviction.
b. Sc says evidence of predisposition to do what was once lawful
is not, by itself, sufficient to show predisposition to do what
is now illegal, for there is a common understanding that
most people obey the law even when they disapprove of it.
c. Govt not only elicited ’s interest in sexually explicit materials
banned by law, but also exerted substantial pressure on
petitioner to obtain and read such material as part of a fight
against censorship and the infringement of individual
rights.
d. Entrapment as a matter of law occurs when govt plays on
weaknesses of innocent party and beguile him into
committing crimes which he would otherwise would not
have attempted.
e. Dissent:  was offered only 2 chances to buy porn and he
ordered both times. He only received mailings. This
holding says that govt can create dispositions in people.
f. O’Connor suggests that this will be interpreted in lower courts
and by criminal investigators as requiring the govt to have
sufficient evidence of ’s predisposition before it ever
seeks to contact him.
g. To allow law enforcement to go on fishing expeditions based
only upon the most generalized suspicion wastes resources
and risks the targeting of unpopular groups
B. OBJECTIVE APPROACH:
1. TEST:
Were there police inducements that would cause a
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hypothetical, law-abiding person to commit the particular offense. Looks
at govt conduct; would it cause reasonable, non-disposed person to
commit crime?
a. Per J.Frankfurter: we look at police conduct that falls below
standards to which common feelings respond for the proper
use of govt power.
b. Comments from US v Russell: Many states have adopted the
objective test.
c. One ct said guidance found in 2 principles:
d. If police conduct would generate in a normally law-abiding
citizen a motive for crime other than ordinary criminal
intent = entrapment.
e. affirmative police conduct that would make commission of a
crime unusually attractive to a normally law-abiding person
= entrapment.
C. THEORIES BEHIND ENTRAPMENT:
1. Two different intuitions surround idea of entrapment:
a. Person less culpable if tempted into crime by certain
inducements
b. Extremely dangerous to allow govt the power to stress test the
morality of ordinary citizens by dangling inducements
before them.
2. Viewpoint: Tactic of police “encouragement” entails cop acting in
capacity of victim; intending by his actions to suggest his willingness to be
a victim; actually communicating this feigned willingness to the suspect;
and thereby influencing ’s commission of the crime.
a. Entails a series of actions by cops
b. Usually entails a crime of vice – gambling, drugs, prostitution –
because these crimes committed with a willing victim who
will not complain, making normal detection virtually
impossible.
c. founded on deception during which cops must often act and
speak with vulgarity and profanity. Not a wholesome cop
practice.
d. criticized cuz it induces someone to commit crime who
normally wouldn’t
e. but useless to criticize method if it’s the only effective way to
protect society from certain activities.
3. Viewpoint: Function of law enforcement not to manufacture crime.
Must draw line between trap for unwary innocent and unwary
criminal.
4. Viewpoint: Posner says when police incite someone who would not
normally commit crime and then punish him, this is a waste of
resources that could be used instead to fight high crime rate that
already exists. But if the incitement just encourages someone to
commit crime who would eventually have done so anyway, costs
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of apprhension and conviction can be minimized. Hence
entrapment may be defined as unproductive use of law
enforcement resources.
5. Viewpoint: Central evil of entrapment is discriminatory law
enforcement because the selection of any target is always a
political act.
6. Comment from dissent if US v Russell --Problems w/ obj.test=criminal
informants that are involved won’t abide by the rules of NOT making
crime attractive to a target.
a. Possible solution = retain subj.test but get rid of focus on
predisposition. If test construed to exclude hearsay
evidence, the subjective test is more reliable.
7. Williamson v US – 1962 – informant promised more money if obtained
the evidence cops sought. Sc invalidated conviction resting upon
evidence obtained by informants paid on contingency. But case
not often followed by other courts!
8. US v Grimes – 1971 – overruled Williamson. Said contingent fee
informer not more likely to manufacture/lie than W’s acting for
other, more common reasons.
9. Mathews v Us – 1988 – defendant who denies one or more of the
elements of a crime still entitled to an entrapment instruction
whenever there is sufficient evidence that a reas.jury could find
entrapment.
10. Entrapment defense usually a matter for jury.
a. Pro – jury has special and/or traditional competence to judge
matters of credibility or motivation and to assess subjective
response to stimulus of police encouragement. Jury
nullification may occur if police conduct evokes moral
revulsion.
b. Con – keeping issue away from jury prevents jury from hearing
a lot of bad character evidence. Ct’s function to preserve
its own purity; only cts can provide cops with necessary
guidance.
11. BOP
a. Subjective approach – BOP on  to establish level of
inducement by govt. Unclear whether he must provide
some evidence or do so by preponderance of evidence.
BOP then shifts to govt to negate the defense by
establishing predisposition of .
b. Objective approach – entrapment viewed as affirmative
defense; doesn’t negate an element of the crime charged.
Entire BOP for production and persuasion on . Must
establish by preponderance of evidence.
D. Due process defense to govt overinvolvement in a criminal enterprise
1. Hampton v US – 1976 --  convicted of selling drugs provided by feds
to feds.
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2. Russell established that entrapment cannot be used as a defense to nonoutrageous govt conduct any time ’s predisposition to commit
crime was established.
3. Limitations of due process clause of 5th Am come into play only when
govt activity in question violates some protected right of the . If
cops engage in activity that exceeds scope of their duties, remedy
is not to free equally culpable , but to prosecute cops under
applicable provisions of state or fed.law.
4. US v Kelly – 1983 – DC Circuit – FBI spread word to politicians that
wealthy Arabs willing to bribe members of congress to ensure
congressmen would introduce private immigration legislation on
Arab’s behalf if and when necessary (ABSCAM).
4. Issue – did FBI’s conduct reach a demonstrable level of outrageousness
to constitute a due process violation.
II. INTERROGATION
5th Am against Self-Incrim/Coerced confessions (Dressler Ch.23 & 26)
A. Constitutionalization of the Common law:
1. Fifth Am self-incrim:
a. Bram v US – 1897 – brought common law voluntariness rule u
under the umbrella of 5th Am. But did not apply to states
cuz 5th am not yet considered a fundamental right and so
not yet incorporated.
b. Confession, in order to be admissible, must be
1) Free and voluntary
2) Not extracted by ANY sort of threats or violence
3) Not obtained by ANY direct or implied promises,
however slight.
4) Not extracted by any improper influence.
c. Molloy v Hogan – 1964 – 5th am priv against self-incrim a
fundamental right; therefore incorporated. Incorporated into
BOR in 1964, but SC still refers to Due process in state
cases. Sc talks about 5th Am rt in fed.cases. But still one
basic line of cases
d. W’s that testify without grant of immunity can refuse to answer
grand jury questions based on 5th am rt.
2. Due process:
a. Brown v Mississippi – 1936 – SC invokes 14th Am due process
clause to invalidate a murder conviction obtained solely on basis of
confessions found to be extorted by officers of the state by
brutality and violence.
3. Comparison of self-incrim and due process:
a. -The 2 lines of cases initially started out down different paths.
9
Ct intended bright line rule for self-incrim. cases; in due
process cases, had to prove via totality of the circumstances
that ’s will was broken by police.
b. -Modern cases not analyzed separately. Both lines now use
totality of circumstances, rather than bright line of old 5th
am cases.
4. McNabb-Mallory Federal Rule:
a. Applicable only to federal courts; excludes class of confessions
that might have been coerced.
b. Pre-existing rule: Arrestee must be brought before a magistrate
without unnecessary delay.
c. M.M. rule = although police could properly delay a suspect’s
first appearance before a magistrate for booking purposes,
they could not delay the appearance for purposes of
interrogation. Remedy for violating this rule was to
exclude from fed.trials any statement obtained during the
unnecessary delay.
d. Congress purported to overrule this in Omnibus Crime Act of
1968 = any confession obtained in 1st 6 hours after arrest
for a federal offense is admissible notwithstanding any
delay, and that a confession obtained thereafter may also be
admissible, depending on a totality of the circumstances.
B. Coerced confession law
1. Rule: A statement obtained from a suspect as a result of police coercion
is inadmissible in her state or federal criminal trial under the due process
clauses of the Const.and the 5th am priv.against self-incrim.
a. voluntariness determined by totality of circumstances. Coerced
= involuntary.
b. -if ’s coerced confession is introduced into evidence at trial
over her objection, and she is convicted, the judgment must
be reversed unless the govt proves beyond a reas.doubt that
the erroneous admission of the confession did not affect the
outcome of the trial.
2. Confession must be voluntary
a. Generally, confessions will be considered voluntary unless
coerced by cops.
b. No bright line; SC will look at totality of circumstances
(everything is relevant but nothing is determinative!)
c. SC attempts to balance society’s perceived need for police
interrogation against the importance of ensuring that the
process does not undermine the complex of values
supporting the privilege against self-incrim.
3. Factors of coercion:
a. Was confession obtained by threat of violence by cops or by
actual violence by cops? Was  deprived of food, sleep, water,
etc.? Coercion found in following cases:
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1) Brown v Miss. –1936 – whipping of 
2) Haynes v Wash. – 1963 – slapping 
3) Fikes v Al. – truncheon blow to ’s head
4) Beecher v Al. – 1967 – holding gun to ’s head.
5) Payne v Ark. – 1958 – warning  that unless he
confesses, he may be victim of mob violence
6) Az. v Fulminante – 1991 – warning  that unless he
confesses, fellow prisoners may attack him.
7) Malinski v NY – 1945 – cops undressed to humiliate
him and let him sit in a corner thinking he was
going to get beaten.
8) Brooks v Fla; Reck v Pate – cops deprived  of food,
water, or sleep for an extended period of time.
b. Was  under psychological pressure? How long was 
interrogated? Under what physical conditions was  interrogated?
What time of day was it? Was interrogation conducted
incommunicado? What are the personal characteristics of  (age,
educational level, psych.makeup, prior experience w/ cops)?
1) Ashcraft v Tenn – 1944 – 36 hr incommunicado interr =
inherently coercive
2) Spano v NY – 1959 – 8 hr, late night interr of
emotionally unstable , during which cops called in ’s
friend (who was also a cop) to manipulate  = coercive.
c. Did cops make extreme promises of leniency or did cops
misrepresent situation?
1) Bram no longer rules, where any promise, however
slight, will invalidate a confession.
2) Lower cts have rather consistently held that confession is
invol if made in response to a promise of
nonprosecution, the dropping of some charges, or a
certain reduction in the punishment  may receive.
3) Lynumn v Il. – 1963 – coercion occurred when cops told
 that she could get 10 years in prison and have her
kids taken away for selling pot, so she’d better
confess. But SC also said that cops here
misrepresented the consequences of ’s confession,
rather then promising leniency.
d. Did cops deceive ?
1) deception alone will not invalidate a confession unless
extreme or unless cops exploit ’s susceptibilities
2) Deception by nondisclosure will rarely violate due
process. Confession not involuntary if  unaware
that she is speaking to undercover cop rather than to
a friend.
3) Leyra v Denno – 1954 – deception occurred when cops
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masqueraded as doctor and interrogated  during
exam.
4) Lynumn v Il. – 1963- deception occurred when cops
falsely claimed that ’s right to retain custody of
kids depended upon her cooperation with them.
5) Illinois v Perkins—1990 no deception when undercover
cop got confession from  in prison.
6) Col. v Spring – 1987 – confession not involuntary if cop
doesn’t inform  that she will be questioned about a
crime other than the one about which she agreed to
talk.
e. Rationale:
1) Invol.confession = untrustworthy
2) even if corroborating evidence exists, the cops should
obey the law when enforcing the law.
3) use of coerced confessions so offensive to a civilized
system of justice that they must be condemned.
4) ours is an accusatorial system, not an inquisitorial one.
5) values of human dignity, personal autonomy, and mental
freedom support the premise that a person should
not be convicted via coerced confession
7) exclusion of coerced confession deters police
misconduct.
5. Confession must be result of state action
a. Col. V Connelly – 1986 – Must be link between coercive
activity by the State and ’s confession. The most outrageous
behavior by a private party seeking to secure evidence against 
does not make that evidence inadmissible under the DP Clause.
1) Schizophrenic  confessed to murder; expert testified
that his illness didn’t allow him to act voluntarily. But state
had not taken any action to elicit confession, so it was
admissible.
6. Must have standing to raise coerced confession claim
a. SC has not ruled directly on standing here, but has stated that 5th
Am priv.against self-indrim is “intimate and personal” and
that it adheres to the person, not to the incriminating info.
b. Plus, abandoning the standing requirement would exclude more
evidence; against philosophy of current court.
7. Scope of Exclusionary Rule
a. Rule: Coerced confession is inadmissible at trial; can’t even
be used for impeachment.
1) No good faith exception cuz you can’t coerce a
confession in good faith.
2) if coerced confession mistakenly admitted into trial, 
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will only get new trial if the admission is found
NOT to constitute harmless error. (Az. V
Fulminante).
3) Confession must be material to the conviction (ie 
wouldn’t have been convicted without it.) (Az. V
Fulminante).
b. Fruit of poisonous tree – fruits and instrumentalities of
coerced confession inadmissible.
1) Same exceptions as to 4th am fruit of poisonous tree
doctrine probably apply here, but no real cases to
give guidance.
2) Harrison v US -- 1968– prosecutor failed to prove that
testimony was sufficiently distinguishable from
illegally obtained confession to be purged of the
primary taint. The illegal confession had violated
the McNabb-Mallory Rule, which is non-C.
doctrine; so it follows that a violation of
Const.doctrine like the 5th Am rt against self-incrim
would also fall under the Fruit of the Poisonous tree
doctrine.
3) probably same exceptions apply, too. Ie inevitable
discovery, alternative source, etc.
III. 5th am right to counsel
A. 5th am right to counsel proceeds from need to prevent intrusions upon the
privilege against self-incrim. It requires that the  have a right to counsel
whenever he is subjected to a custodial interrogation, whether or not he
has been formally charged (Michigan v Jackson).
B. attaches only when 1) there is a custodial interrogation; 2) the M. rights have
been read; 3)  asks for counsel.
C. Not offense specific; once suspect asserts 5th Am rt to counsel, cops must stop
interr, him about ANY offenses, unless counsel is present or suspect
initiates conversation.
IV. Miranda cases
Separate from 5th am right against compelled self-incrim.
A. Historical Context
1. Evolved out of problems w/ totality of circumstances test used to figure
out if confessions were coerced  cops needed bright line rule;
courts bogged down in having to look closely at every case;
interrogations done incommunicado are problematic. Miranda
provided the bright line.
2. 1964 - Interrogation law takes dramatic turns:
a. Malloy Hogan –1964 – rt against self-incrim deemed
fundamental right
b. Massiah v US- 1964- govt may not deliberately elicit
statements from a person under indictment in the absence
of counsel.
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c. Escobedo v Il – 1964 – extended right to counsel to preindictment interrogation.
1)  under arrest for murder. Taken into custody late at
night and interrogated at police station, while
handcuffed and kept standing.
2)  asked several times for his atty. Told by cops that atty
did not want to see him, when atty really in waiting
room.
3) late at night cops had  confront partner in crime; 
made remarks suggesting that he was familiar with
crime. Later made statements to cops implicating
himself.  never informed of privilege against selfincrim.
4) SC held statements inadmissible; violated 6th am rt to
counsel.
st
5) 1 time 6th am rt to counsel applied to person against
whom criminal proceedings had not yet formally
commenced.
6) Narrow holding said 6th am rt to counsel violated when
 is focus of investigation;  is in custody; 
requests and is denied an opportunity to consult w/
his atty; cops have not informed  of his privilege
against self incrim. Because its limited to its own
facts, it is the ONLY SC opinion to hold that 6th am
rt to counsel attaches before formal criminal
proceedings begin.
7) Sc later made this a self-incrim case by saying that the
rationale of the case served to guarantee full
effectuation of privilege against self-incrim.
8) Significance of case = opinions of majority of SC
toward interrogations and confessions. Launched
attack on govt reliance on confessions.
3. Current SC doesn’t read M. broader than necessary. Doesn’t buy into
“fox hunt” theory, as seen in Moran v Burbine.
B. Miranda v Arizona –
1. Case Information
a. 4 cases consolidated upon appeal. All 4 cases had common
facts
b. suspects taken into custody (3 by arrest; 1 before arrest);
c. all questioned in interrogation room under police-dominated
circumstances, incommunicado.
d. incommunicado =
1) preventing Δ from communicating with or meeting w/
counsel or
2) not informing outside world of Δ’s whereabouts or
3) denying Δ’s friends, lawyers, or relatives access to him
14
e. Suspects never told they had right to remain silent under 5th am
priv. of not being W against self.
f. Statements were obtained that were offered to ct during crim
trial.
C. Miranda holding:
1. any statement whether its exculpatory or inculpatory, obtained as a
result of custodial interrogation may not be used against  in a
criminal trial, unless prosecutor proves that police provided
procedural safeguards effective to secure ’s privilege against
compulsory self-incrimination.
2. Until congress or state leg comes up with alternative, police must
provide Miranda warnings in order to get statement in at trial.
3. Right to counsel:
a. circumstances of custodial interrogation can quickly break 
down
b.  entitled to counsel prior to questioning and to have counsel
present during interrogation.-helps assure ’s ability to
choose whether to speak or to remain silent is unfettered;
reduces chance that cops will act coercively; atty can testify
at trial about any coercion; ensures that ’s statements
given at trial are accurate
c. falls under 5th Am rt to counsel.
4. Procedural safeguards:
a. No talismanic incantation required per SC in Calif. V. Prystock,
as long as the explanation if equivalent to following:
b. Must state in clear and unequivocal terms that
c.  has right to remain silent
d. that anything  says can and will be held against him
(consequences of waiving the right)
e.  has right to consult w/ lawyer and to have lawyer present
during interrogation (Miranda right to counsel)
f. if  cannot afford atty, one will be appointed by state to
represent him for free.
5. Duckworth v Eagan – 1989 – SC said inquiry into adequacy of
warnings is simply whether warnings reasonably convey to suspect his
rights as required by M.
a. SC tried to come up with bright line rule. COULD have been
said that Miranda was effort to clarify 5th Am privilege against
self-incrim. But, SC came to say Miranda is not Constitutional
rule, but rather a prophylactic rule to prevent a C.violation.
Consequence is that exceptions to Miranda exclusionary rule exists
and Miranda has less teeth.
6. Us v Mandujano – failure of prosecution to give M’s is not available as
a defense to W who lies to a grand jury. He can still be convicted of
perjury. Also, 2 elements of M – the rt to appointed counsel and the rt to
15
have questioning halted immediately on the request for counsel – don’t
apply to grand jury W’s.
D. Exception: not a violation if  not in custody.
a. Custody = person is taken into custody or otherwise deprived of
his freedom of action in any signif.way.
1) custody determined by TOC test.
2) Arrest=custody. Custody does NOT equal seizure.
Person temporarily detained, ie under Terry level
seizure, is not in custody for purposed of Miranda.
3) Person not in custody unless he is formally arrested or
in custody at a level tantamount to an arrest.
b. Person’s freedom of movement restricted tantamount to an
arrest if a reasonable person, under the same
circumstances, would have thought he was not free to leave
(Beckwith v US).
c. Per Beckwith, custody does not equal focus.  was focus of
criminal tax investigation. IRS agents questioned him at
his home.  was not in custody at time of questioning, so
SC held M’s not required cuz a reas.person would have felt
free to leave or to ask the agents to leave.
d. Custody may occur outside of police station. Ie cops take
suspect to locked room at an airport to question him. (Florida v
Royer)
1) Orozco v Texas – 1969 – SC held that  was in custody
when 4 cops entered his bedroom and questioned
him at 4 am. One cop testified that  was under
arrest at time of questioning, although  had not
been informed of this. Timing of interr., the pointed
nature of the q’s, and the presence of 4 armed cops
= reasonable person in ’s situation would have
believed he was in custody. Therefore, cops
should’ve given M’s.
2) But most out-of-station questioning is not considered
custodial and does not require M’s. Lacks coercive
atmosphere that makes person feel like he’s not free
to leave.
3) Not all police station q’s are considered custodial interr.
4) Calif. V Beheler – 1983 -  voluntarily agreed to go w/
cops to station house for q’s about a murder that he
had reported to them. At station, he answered q’s
w/out being given M’s, for 30 minutes. He was
permitted to leave and was arrested 5 days later for
the murder. SC held M-less statements were
admissible cuz even though q’s happened at station,
 not in custody.
e. Cops subjective and undisclosed view of whether person being
16
interrogated is a suspect, or his hidden, unstated agenda to put 
under arrest is NOT an issue or standard.
1) not enough for  to show he was in custody by showing
cop intended to arrest him all along.
-if reasonable person would have believed himself
as arrested or in situation tantamount to arrest, then he will
be considered in custody.
2) Berkemer v McCarty -- cop saw  driving erratically;
pulled him over and had him get out out of car. When 
complied, cops noticed he had difficulty standing. At that
moment, cop subjectively determine that  would be
charged with DUI and taken to jail. Without giving M’s,
cop asked  whether he had been using intoxicants.
a) Holding -- if  is stopped by cops for
questioning, he is only temporarily detained,
or seized acc.to 4th Am. But not in custody
for purposes of Miranda.
b) Reas.driver in ’s position would not have
believed he was in situation equivalent to a
formal arrest.
D. Misc M’s
1. Minor offenses
a. Berkemer -- cops tried to argue that they have no reason
to subject a misdemeanor suspect to sort of
interr.that troubled SC in Miranda. SC didn’t buy it;
said M’s must be given before ANY cust.interr.
crim.offense. Often when cops arrest on
misdemeanor, they’ll find out later that  is wanted
on felony charges, too, so M’s needed. Sc kept
bright line here.
b. Terry stops
1) person not in custody for purposes of M just
because his freedom of movement has been
curtailed by cops like the less intrusive
seizure in a Terry stop.
2) Berkemer – motorist not in custody if subjected
to roadside q’s during routine traffic stop,
which are brief, occur in public, and usually
involve only 1 or 2 cops.
2. Misc.coercive environments
a. not necessarily a correlation btw custody and coercive
environment.
b. Ore.v Mathiason – 1977 -  was parolee suspected of
burglary who came voluntarily to police station at
cops’ request. W/out M’s, he was questioned with
door closed. Prior to q’s, cops told  he was not
17
under arrest; he was allowed to leave after making
incrim.statements. Sc held that M’s not required
cuz  nor in custody during interview: he was told
he was not under arrest, and he left the station after
q’s. “Coercive environment will not convert a noncustodial situation into a custodial one in which
M.applies.
c. Grand jury proceedings do not require M warnings.
Grandjury subpoena not an unreasonable seizure, so
appearance not custodial.
d. Psychiatric exams require M warnings if used for more
than determination of competency to stand trial
1) Estelle v Smith – 1981 – w/out permission of
Δ’s atty and w/out giving Δ M’s, shrink
examinec Δ to predict Δ’s future
dangerousness. Shrink testified at
sentencing phase of trial. Violated Δ’s 5th
and 6th am rts.
2) Allen v Illinois-1986- Δ interviewed to see if he
was sexually dangerous person. Δ’s statements to
shrinks inadmissible; but shrinks allowed to testify
at trial as to their opinion that was based upon Δ’s
statements.
a) SC said proceedings not criminal under
5th Am (even though state must file criminal
charges against Δ in order to file a sexually
dangerous person petition, and statute
involved had same safeguards found in
crim.trials.
e. Focus does not equal custody (Beckwith)
E. Exception: Not a Miranda violation unless an actual interrogation occurs.
a. Some courts consider probation officers and IRS officers
conducting tax investigations law enforcement personnel
for purposes of M. (Beckwith v US).
b. M’s not required if interrogation done by non-police.
Interrogations by private investigators and victims are not
subject to the M requirement.
c. RI v Innis 1980 - M’s given;  requested to see atty, so cops
had to stop interr. Until  did so. But then cops discussed in front
of  location of weapon around playground of handicapped kids. 
interrupted cops to tell where weapon was.
1) SC ruled not an interrogation, so ’s statements about
gun were admissible.
2) “interrogation” refers not only to express q’s, but also to
its “functional equivalent” = any words or actions
on part of cops (other than those normally attendant
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to an arrest and custody) that cops should know are
reas.likely to elicit an incriminating response from
.
3) functional equivalent focuses on perceptions of subject,
not intent of cops: Should cop have realized that his
acts or words were reas.likely to result in an
incrim.response from ?
4) Cop’s subjective intent to elicit a response is not the
key; but may play a role if cops have knowledge of
’s special susceptibility to a particular form of
persuasion.
5) cops’ conversation here was brief, not evocative, no
evidence that cops knew  was particularly
susceptible to an appeal to conscience, or that  was
disoriented or upset when the remarks were made.
d. Brewer v Williams – 1977 – “Christian burial speech” is
example of what SC probably meant in Innis re: definition
of interrogation, even though this is a 6th Am case. Cops
still tried to deliberately elicit statements  knew of ’s
mental illness and susceptibility to religious arguments.
e. Illinois v Perkins – 1990 – Not a custodial interrogation for
purposes of M. if questioning is done undercover by
undercover cop. No M’s required.
f. Schmerber v Calif. – 1966 – M applies only to testimonial or
communicative privilege.  may still be compelled to
produce physical evidence.
g. Penn. V Muniz –1990 – so, cops can ask  questions in order
to reveal the physical state of his voice or manners. Ie cops arrest
 for DUI. W/out M’s, cops conduct sobriety test in which ’s
answers to direct q’s are videotaped. ’s answers to these direct
q’s will not be inadmissible by M. just because ’s slurred speech
will incrim.him. Sc said requiring  to reveal physical properties
of his voice does not, without more, compel him to provide a
“testimonial” response for the purpose of privilege.
1) But 5th Am (& therefore M.) is implicated if content of
’s answers suggest he is mentally confused, ie he
gives incorrect answers to q’s.
2) Inference of ’s intox.can’t be drawn from a testimonial
act (his answers); only from physical evidence
(slurred speech).
F. Exception: Not a M. violation when overriding considerations of public
safety exist.
1. No M’s required where need to apply prophylactic rule protecting 5th
am privilege against self-incrim is outweighed by public safety concerns.
(Quarles).
a. balance test = reas.man test. It’s not what the police officer
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actually believed at the time, but what a reas.police officer would
believe under circumstances. (Quarles).
2. Elements:
a. objectively reas.need to protect police or public from an
immediate danger
b. an exigency requiring immediate action by the cops beyond the
normal need to expeditiously solve a crime
c. cops can only ask q’s that are reas.prompted by a concern for
public safety.
1) Ex. Quarles -  raped woman and fled into grocery
store. Cops come in and grab him.  wearing gun belt, but
no gun. Cops ask him where gun is, and he signals a pile of
boxes, saying, “In there.” Statement will be admissible
against him, because the cops had a reas.concern for public
safety – that ’s partner in crime or that an innocent
member of public might stumble across the gun.
a) SC said cops faced with immediate necessity of
finding gun. So long as gun’s whereabouts
unknown, it posed danger to public safety because
an accomplice or someone else might get to it.
G. Exception: Not M.violation if custodial interr. is covert
1. M’s not required when suspect is unaware that he is speaking to a law
enforcement officer and gives a voluntary statement.
a. Il. v Perkins – 1990 – cops found out that Δ, a jail inmate, had
made statements to another prisoner that implicated Δ in a murder
then under investigation. Undercover cop, X, placed in Δ’s cell
and posed as a burglar; tried to engage Δ in casual conversation
about the murder. X talked about murder in general’ asked Δ if
he’d ever killed anyone. Δ admitted he had and told details of
crime.
1) SC held Δ’s statements admissible because these sorts of
statements do not implicate the concerns underlying M.
b. M. triggered by need to prevent coercion of Δ by cops.
Coercion determined by Δ’s perspective; therefore,
coercion not present when Δ thinks cops is actually a
cellmate!
c. No interplay btw police interr. and police custody when cop is
wearing prison gray.
H. Exception: Not a M violation if questions part of routine booking
1. Questions exempted from M that are meant to secure biographical data
necessary to complete booking or pretrial services.
a. Penn. v Muniz – 1990 – Δ arrested for DUI. At station, cops
asked q’s about Δ’s name, age, weight, eye color, DOB, age, etc.
as part of a routine practice for receiving persons suspected of
driving while intox. Q&A videotapes w/ Δ’s consent, but before
M’s given.
20
1) SC 4 J. plurality held that M’s nor required before these
sorts of q’s.
2) Q’s were routine, for record-keeping purposes only, and
reas.related to police admin.concerns.
3) Cops just can’t use booking q’s to elicit
incrim.admissions
I. Exception: Not a M violation if  waives Miranda rights
1. Most suspects do waive rts
J. Elements of waiver
1. Johnson v Zerbst (1938) & Edwards v Az (1981) – “strict” waiver
standard = C.rt. may not be waived unless there is an intentional
relinquishment or abandonment of a known rt or privilege.
2. BOP on prosecution to prove waiver given knowingly, intelligently,
and voluntarily (Miranda, and NC v Butler). If prosecution argues waiver
by implication from suspect’s words or conduct, courts will apply careful
scrutiny.
a. Col. v Connelly –1986- prosecution must prove by
preponderance of evidence
b. Edwards v Az – 1981 – matter of waiver depends in each case
upon the particular facts and circumstances of that case,
inc.the background, experience, and conduct of the
accused.
K. “Knowingly and intelligently”: Dressler p 417
1. Moran v Burbine – 1986 – waiver must be made with full awareness
of both nature of the right being abandoned and the consequences
of the decision to abandon it.
2. Col. v Spring – 1987 –  arrested for interstate trans.of stolen firearms.
After  waived his M’s and during questioning, cops asked him about a
murder that had occurred earlier.  confessed to murder.
a. SC said  need not know all the facts that may have an effect on
his decision to waive rights for waiver to be k&i.
b. Sc said  knew what his rts were and that he could stop the q’s
at any time, and knew that ANY statement could be held
against him.
c. But see Ore. V Elstad – 1985 - confessed to crime before M’s
given. Cops read him M’s, after which  waived rts and
provided more incrim.statements.  argued that his post-M
statements should be excluded, partly cuz he wrongly
believed that the “cat was out of the bag, aka he did not
know that when he made the 2nd statement, that his earlier
confession was inadmissible anyway! He said he wrongly
believed he had nothing to lose w/ his 2nd statements, so his
waiver was not k&i waived.
d. Sc said too bad. ’s ignorance of full consequences of his
waiver did not vitiate its voluntariness.
3. Moran v Burbine – 1986 -  arrested for murder. ’s sister got atty to
21
call police station to say she would act as ’s counsel should cops
interr.him. Cops said  would not be interr. that night. Cops interr. one
hour later after giving M’s to  and  signing waiver. Cops did not
inform  that he had an atty.
a. Sc held ’s waiver has ki&v. Although  must be informed of
his rt to counsel,  not Const.entitled to know that his atty
wishes to see him.
b. Sc said cops were misleading, but their deception of atty could
not have influenced ’s decision to waive rts.
c. Cops not required to supply  w/ flow of info to help  calibrate
his self-interest in deciding to speak or to stand by his
rights.
L. Voluntariness: Dressler p 417
1. only requires that waiver be product of free, uncoerced choice, rather
than of intimidation, coercion or deception, and that  was aware of his
rights and the consequences of abandoning them. (Moran v Burbine).
a. Here, SC will not require more than required under 14th Am DP.
b. Waiver of rights considered voluntary if moral or psych.
pressures to confess emanate from sources other than
official coercion. (Ore. V Elstad).
c. Irony- M. was created for bright line rule; now gray area of
“voluntariness” returns!
2. Miller v Fenton-3rd cir.-Δ waived M’s. But then police used
excessive friendliness and lied about victim’s death to get Δ to confess.
a. 3d c. looked to TOC to hold confession was valid and
voluntary.
b. cops never told Δ he wouldn’t be prosecuted. Δ had spent time
in jail before, was mature adult, etc.
c. Dissent: look at TOC requires ct to take into acct that Δ
collapsed into state of shock after confessing = suggests
coercion
3. Prosecution must prove that  received warnings and waived them.
*Confession must be voluntary. (Johnson v Zerbst)
4. Sc has said that lengthy interrogation or incommunicado incarceration
is strong evidence of invol. relinquishment of right.
5. if no warnings given, no amount of circumstantial evidence may be
used to say that  was aware of his rights.
M. Types of waiver:
1. waiver may exist when  makes express statement that he is willing to
make a statement, and that he does not want an atty present, followed
closely by a statement.
a. Per NC v Butler, an explicit statement of waiver is not
invariably necessary to support a finding that  waived his
M. rights. Waiver may be implied.
b. Best proof of waiver is written, but suspect’s waiver can be
proven even if he refuses to sign waiver. (NC v Butler).
22
2. Mere silence after receiving M’s can NEVER constitute waiver. But at
least one court has held that nods or shrugs may constitute waiver.
3. Minors can waive rights, but proving the validity of waiver will be
more difficult.
N. Scope of M Exclusionary Rule
1. Impeachment exception
a. Harris v NY – 1971 – prosecutor may use a statement obtained
in violation of M to impeach Δ who testifies inconsistently w/ a
custodial statement.
1) shield provided by M cannot be perverted into a license
to use perjury by way of defense, free from risk of
confrontation w/ prior inconsistent utterances
2) once Δ takes stand, prosecutor entitled to use trad’l
truth-testing devices of the adversarial system.
3) police deterred enough if statements cannot be used in
case-in-chief; deterrence doesn’t extend to
impeachment.
2. Fruit of the Poisonous Tree Doctrine
a. if M violation occurs, resulting in the exclusion of the statement
secured in violation of M, the govt may still call a W to
testify at trial, although the W’s identity is a fruit of the
inadmissible statement.
b. govt may also introduce Δ’s own voluntary, post-M admissions,
even if they are fruits of an earlier M violation.
c. verbal evidence admissible, regardless of whether the
connection btw the challenged evidence and the M
violation is so attenuated so as to dissipate the taint.
Probably extends to physical evidence, too.
d. volitional statements made by Δ are treated more leniently than
physical evidence obtained by cops in violation of Const.
e. Mich. v Tucker – 1974 – cops gave incomplete M’s to Δ before
cust.interr. Although q’s occurred before M announced, Δ’s trial
took place after M was decided, so M’s safeguards applied
retroactively to the interr. Hence, Δ’s statements obtained in
voilation of M were inadmiss.
1) In Δ’s inadmissible statement, cops had obtained name
of W, who was called to testify at Δ’s trial. Δ
asserted Wong Sun fruit doctrine.
2) SC held that fruit doctrine inapplicable here because M.
not a Const.doctrine.
f. Rationale:
1) W’s testimony not untrustworthy cux W subject to cross
x by Δ
2) deterrence rationale of exclusionary rule lost much of its
23
force in the pre-M. context of the case, cuz cops had
acted in good faith when they provided incomplete
warnings.
3) Sc rejected “judicial integrity” as an indep. basis for
excluding the challenged evidence.
g. Ore. v Elstad – 1985 – cops obtained incrim.statement from Δ
in violation of M. Later, Δ arrested and given M’s. Δ waived his
rts and made a 2nd more damaging statement. First statement
inadmiss.under M. Issue on appeal was whether 2nd confession
was also inadmiss.as a fruit of the inadmiss. earlier confession.
1) Sc said reasoning of Tucker applies with equal force
when the alleged fruit of a noncoercive M violation
is neither a witness nor an article of evidence but as
in this case, the accused’s own voluntary testimony.
2) in absence of compulsion or improper police tactics, the
twin rationales of the M ER – trustworthiness and
deterrence – did not call for exclusion of Δ’s
testimony, although it was the fruit of the original
violation
h. Withrow v Williams-1993-SC refuses to deny fed.habeas relief
to state prisoners convicted on basis of statements obtained in
violation of M.
1) M. safeguards fundamental trial rt, use of unreliable
statements at trial
2) Even if M. claims barred from habeas claims, prisoners
could still bring DP claims.
3) Dissent: like 4th Am ER, M not Const.required. Should
limit 5th Am habeas not true invol.confessions then.
Creates tension btw state and fed cts.
O. Enforcement of the M. Rights: What if  asserts his rights?
1. Right to silence
a. M.decision says if  indicates in any manner, at any time prior
to or during questioning, that he wishes to remain silent, the
interrogation must cease.
b. any statement obtained after that will be viewed as compulsion,
subtle or otherwise.
c. if  asserts privilege in presence of his atty, some further Q’s
may be permissible.
d. Minimal req’s for cops to resume q’s = immed.cessation of q’s;
suspension of interr. for signif.period; and giving fresh M’s
at start of 2nd interr.
e. Mich. v Mosley – 1975 – this doesn’t mean, however, that cops
may NEVER resume interr.after  asserts his rt to silence.
1) Cops must “scrupulously honor” ’s rt to remain silent,
24
which included here that cops waited 2 hours to try again,
sent different cop, did it in another location, asked about a
different crime, and after M’s were restated.
2. Right to counsel
a. For Interr. purposes:
1) Edwards v Az. (1981) – cops read  his M’s. 
orig.agreed to talk, but later told cops he wanted atty before
making a deal. Cops stopped interr.and took  to jail.
Cops returned next morning to resume questioning. When
 said he didn’t want to talk, jail guard told him he had to.
a) Sc held that when  invokes his rt to consult w/
atty prior to interr., cops may NOT interr.
again until after atty has been made
available to him, unless  himself initiates
communication, exchanges, or conversations
w/ police.
b) per SC in Ore. v Bradshaw (1983), Δ asked
cops, “Well, what is going to happen to me
now?” This counted as an initiation of
comm. because it was indirectly related to
the investigation. Hence, cops didn’t act
improperly when resuming q’s after
securing a valid waiver.
c) per Bradshaw, 4 J. plurality  “initiate
communication, exchange, or conversation”
means any comment or inquiry that can be
fairly said to represent a desire to open up a
generalize discussion relating directly or
indirectly to the investigation.
d) comments or inquiries relating to routine
incidents of the custodial relationship, such as a
request for water or to use the telephone, fall
outside the scope of this definition.
b. Purpose of M is to prevent cops from badgering  into waiving
previously asserted M.rts.
c. Because M. is prophylactic, and the Edwards rule protects M.,
Edwards rule is double prophylaxis/2nd layer of protection.
1) Edwards rule is very strict.
a) bars police interr., even regarding offenses
unrelated to the subject of the original interr.
b) irrebutable presumption that any new waiver of
rts coerced
c) per SC in Minnick v Miss., once Δ invokes his
M. right to counsel, the police must not only
permit Δ to consult w/ atty, but they may not
re-initiate questioning unless atty is present.
25
d) if  states at any time prior to or during the
questioning that he wants to consult with an
attorney, the interrogation must cease until
atty is present
e) when atty arrives,  must have opportunity to
confer with atty and to have him present
during subsequent questioning.
2) Exception to Edwards: Davis v US – 1994 – Δ initially
waived his M’s and was interrogated. Ninety
minutes into the q’s, Δ said, “maybe I should talk to
a lawyer.” When cops tried to clarify Δ’s wishes, Δ
said, “No, I’m not asking for a lawyer…I don’t
want a lawyer.” Cops resumed interr.
a) Sc held 5-4 that if Δ ambiguously or equivocally
asserts rt to counsel, cops may ignore
remark and continue w/ interr.
b) Reasonable officer test: if reasonable cop, in
light of the circumstances, would have
understood only that Δ might be invoking
his rt to counsel, interrogator may ignore the
remark and proceed w/ q’s.
c) per SC, cops need not ask clarifying q’s,
although Sc recommended as good practice.
d) Sc adopted rule for clarity and ease of
application, despite fact that it might
disadvantage some Δ’s who are afraid,
ignorant, or women or other groups who are
not socialized to use assertive language.
Rule might also undercut Edwards cuz all
people more likely to use hedging language
when they are situationally powerless during
interr.
b. For Non-interr. purposes:
1) SC has expressed doubt that the rt to counsel can be invoked
anticipatorily (McNeill). Lower courts have left q open
(Alston v Redman)
2) Sc has hinted that an assertion of the Miranda-Edwards rt to
consult w/ counsel might not be effective if it is asserted
initially outside the context of custodial interr., ie at a
judicial proceeding or in a letter sent to police before an
impending arrest.
3) McNeil v Wisc. – 1991 – Δ arrested pursuant to warrant
charging him w/ armed robbery. Δ requested counsel at a bail
hearing – a judicial proceeding – on the robbery charge. Cops later
visited Δ in his cell, where M’s were re-given. Δ signed waiver
26
form and answered q’s about other offenses for which Δ was a
suspect, but for which he had not been formally charged.
a) Sc held that Miranda-Edwards cease-interr. rule did not
apply here.
b) SC said that by requesting atty at bail hearing, Δ
invoked rt to counsel re: robbery charge. His
statement could not be reas.construed to be an
expression of desire for an atty to deal w/ custodial
interr. by the police on the other offenses for which
he had not yet been charged.
P. Rationale behind Miranda
1. Cops’ manuals detailed lots of psych.tricks to use on ’s to get them to
talk
2. Per SC, interrogation exacts a heavy toll on individual liberty and
trades on the weakness of individuals.
3. Per SC,  surrounded by antagonistic forces; kept incommunicado in a
police dominated atmosphere and deprived of every
psych.advantage
4. compulsion inheres in custodial interrogation
5. the warnings are designed to relieve the inherently coercive pressure of
a custodial interrogation, which leads easily, unless curbed, to selfincrimination.
6. importance/need of confessions overstated in law enforcement; cops
usually have enough evidence without it.
7. M. supports adversarial system; it is not for the authorities to decide
when  should speak; rather, it is the right of the individual, with
atty’s assistance, to decide whether and when to talk to cops.
Q. Pros v cons of M.
1. CON – “didn’t go far enough” – Sc did not take Escobedo and M. to
its logical conclusion, which would have been to prohibit custodial
confessions altogether, permit questioning only in the presence of a
lawyer, or at least prohibit interrogation until  has consulted w/ atty.
a. If one takes seriously the principles stated in M, that “govt
must shoulder entire load in accusatorial system of justice”
and that it must “respect the inviolability of the human
personality” then it follows that the govt should not be able
to establish guilt by use of admissions obtained in the
inherently coercive environment described by SC.
b. Sc acted inconsistently by allowing ’s to “voluntarily” waive
their rts in the inherently coercive environment of the
interr.room.
c. Therefore, at minimum, atty needs to be present or consulted
before waiver is truly effective.
2. PRO – the above critics do not appreciate the fact that in 1966, this was
as far as the SC was able to push the issue
3. CON – “M. went too far – holding in M has no signif.support in the
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privilege or in the language of the 5th Am.
a. English PASI applied only to judicial interr., not to police interr.
Language of 5th Am expressly says “witness” against self.
4. PRO – Although Framer’s intent re:5th Am is murky, it is odd to think
that they would have intended to allow police interr. While
banning judicial interr. Even Office of Legal Policy in the DOJ,
which called in 1986 for Sc to overrule M., conceded that the
applicability of the 5th Am to police interr. is consistent with the
historical understanding of the priv.
5. CON – “the rule is unnecessary and irrational” – DP clauses of 5th and
14th Am. already provides adequate tool for coping with confessions.
a. Totality of the circumstances voluntariness test is workable,
effective, sophisticated, and sensitive.
b. SC case law makes it clear that if cops engage in certain kinds
of conduct, they do so at their risk.
c. M. is formalistic; every custodial interr.is not coercive; this is
counterintuitive and empirically false.
d. Doesn’t make sense that  can blurt thngs out on his own and
they’ll be admissible, but one question by cops will make it
invalid.
6. PRO – supposed safeguards of the voluntariness test were illusory.
a. M. sends clearer message to cops than TOC test ever could.
b. M returned law to point it already had been in Bram.
c. when analyzing self-incrim.claim to invalidate a confession,
amount of pressure exerted on  by cops should be less
than what is required to invalidate a confession under DP,
because Framers intended 5th Am to specifically address
inquisition/interr.
7. CON – “M is anti-confessions and pro-fox hunt.” Implicitly says
confessions are not to be trusted and it is wrong for cops to gather
evidence from .
a. M. opinion seeks pure adversary system, but US system based
also upon inquisitorial procedures.
b. M. ignores preservation of others in society besides .
c. M treats ’s as underdogs who need atty to match wits w/cops
and to protect them against pressure of custodial interr.
Places  on level playing field w/ cops.  can be acquitted
even if factually guilty. This sporting theory of justice is
senseless;  not a fox who should be given a chance to
escape.
8. PRO – critics really object to PASI, not to M., and to accusatorial
justice system. Const., not SC prohibits SI. 5th Am, not M., values system
of justice in which govt must prove guilt by its independent labors.
a. M based on unseemly cops behavior that would take
psych.advantage of citizens’ vulnerabilities.
b. the weak should not be exploited by govt agents.
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c. M safeguards human dignity and autonomy.
9. CON – “M injures law enforcement – cops questining of ’s is
indispensable instrumentality of justice.
a. M makes it too hard for cops to get statements from  cuz once
 knows of his rt to talk to atty he’ll exercise it, and more
guilty people will escape justice.
b. M resulted in drop in confession rate and convictions. Cops
have also lost collateral benefits of confessions, ie names of
accomplices.
10. even early critics of M now recognize that it has provided big benefits
w/ little social cost and has not really hampered cops.
a. studies cited by critics are empirically flawed
b. police chiefs who have seen decrease in confession rates in
depts. Still like effect of M of professionalizing cops
c. even w/ M., ’s frequently waive M rts, so M really liberates
cops from later accusations of coercion.
R. M. is not Const.doctrine
1. Mich. V Tucker – 1974 --  was not given M’s, so s statement
excluded at trial. But issue was whether the fruits of the confession, ie
testimony of W whose name was mentioned in the Miranda-less
statement, was also inadmissible as fruit of the poisonous tree.
a. Foundational question is to ask whether cops’ conduct directly
infringed upon ’s PASI, or whether it instead violated
only the prophylactic rules developed to protect that right..
b. Sc said cops did not deprive  of his PASI, but rather failed to
make available procedural safeguards associated with rt of
PASI since Miranda.
c. Hence, failure of cops to provide  w/ M’s prior to interr. Does
not render confession involuntary as a violation of 5th Am.
Instead it only violates procedural safeguards devised by
SC in Miranda in order to prevent an actual violation of C.
M. sweeps more broadly than 5th Am itself and may be
triggered even in absence of 5th Am violation.
d. deconstitutionalized Miranda, which means M. exclusionary
rule is narrower than 5th Am exclusionary rule; now not
sure if states have to have M. ER.
2. Omnibus Crime Control Act – 1968 – language of law intends to
treat lack of M. warnings as only a factor to be considered by courts in
determining admiss.of confessions obtained during cust.interr.
a. fed law enforcement officers continue to give M.warnings,
though. Fed.prosecutors ignore it, too, even when
M.violations have occurred.
b. Davis v US –1994 – amici called on SC to consider C. of the
law, but it declined to do so. One fed.circuit has upheld the
Act against C.attack in
c. US v Crocker; one circuit said Act does not trump violation of
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M.waiver rule in US v Cheely.
V. 6th Am Right to Counsel
A. Overview
1. 6th am = “in all criminal prosecutions, the accused shall enjoy the rt to
have assistance of counsel for his defence.”
2. General rule = in the context of trad’l interr where the accused is aware
he is dealing with law enforcement agents, the 6th am renders
inadmissible in the prosecution’s case in chief any statement
deliberately elicited from Δ after adversarial criminal proceedings
have begun, unless the accused atty is present or he knowingly and
voluntarily waives his rt to counsel.
3. In case of covert police activity, rule is same except that Δ can never
knowingly and voluntarily waive the rt because he does not know
that he’s speaking to an agent of the state.
4. Personal right; may only be asserted by person whose rt has been
infringed (supported by language in Massiah).
5. Rt is also offense-specific. (McNeill v Wisc.)
a. In addition to looking at whether formal judicial proceedings
have begun, must also look at whether those proceedings
have begun in regard to the specific crime that is at the
heart of the legal dispute.
b. Once suspect invokes 6th Am rt to counsel, cops must cease
interr. about the crime for which charges have been filed,
but need not cease q’s regarding other, uncharged offenses.
(McNeill).
6. Distinguish this from 5th am right to counsel by looking to see if 
charged with crime at time of arraignment. If so, 6th am rt attaches at
“critical stages” of proceedings.
a. applicable when proceedings move from investigation to
accusation (Moran v Burbine)
7. Rt based on general notion that criminal  needs a lawyer at every
phase of the proceedings once he’s been charged. Conversely, 5th am right
to counsel proceeds from need to prevent intrusions upon the privilege
against self-incrim. It requires that the  have a right to counsel whenever
he is subjected to a custodial interrogation, whether or not he has been
formally charged (Michigan v Jackson).
a. applies to trad’l interr. as well as surreptitious police conduct
B. Massiah v Wisc. – 1964
1. The opinion:
a. Facts: Δ arrested for narcotics offense. He retained atty;
pleaded not guilty; released from custody on bail. In the
meantime, I, who was charged in the same indictment,
agreed to cooperate with cops in continuing investigation of
Δ. I allowed cops to install listening device in his car so
they could listen to his and Δ’s lengthy conversations.
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During intercepted conversations, Δ made incrim.
statements that were introduced at trial over his objection.
Δ argued that his 6th am rt to counsel violated.
b. SC agreed; holding short and narrow. Specified that here, SC
dealt with federal case when Δ’s incriminating statements
used against him at trial had been deliberately elicited from
him after he had been indicted and in the absence of his
counsel.
c. period after suspect is formally charged w/ offense and before
trial is the most critical period of the proceedings during
which consultation, thoroughgoing investigation and prep
are vitally important.
d. to deny Δ counsel during this period would be to deny her
effective representation by counsel at the only stage when
legal aid and advice would help.
C. Making sense of Massiah: 6th am role of counsel Dressler p. 436.
1. Effect of holding: in the event of surreptitious deliberate elicitation of
incrim.statements after adversarial criminal proceedings have
commenced against and accused, the govt must either reveal its
presence to the accused and afford the opportunity to consult with
counsel, or to suffer at trial the exclusion of product of its
adversarial encounter with the accused.
2. Dissent: J.White criticized exclusion of relevant, reliable, highly
probative evidence obtained in a noncoercive environment.
3. Hard to see how Δ’s 6th Am right was really violated. Commentators
have said real problem facing Sc here was the permissible extent of
govt deceit inherent in undercover work and the use of informers.
4. In order to implicate a 6th am interest, have to define “assistance of
counsel” in certain ways. If you define a lawyer’s role as
adversarial assistance, or guardian of the fortress, then he should
be the essential medium thru which demands and commitments of
sovereign are communicated to Δ. Then govt has affirmative duty
not to circumvent and thereby dilute the protection afforded by the
rt to counsel.
D. Definition: Adverse Judicial proceedings Dressler p. 440
1. Brewer v Williams – 1977 – Δ arrested and arraigned for murder of
child. While being transported in a police car from one part of the state to
another, Δ was subjected to the “Christian burial speech.” Cop prefaced
speech by telling Δ, “I want to give you something to think about” and
proceeded to discuss dead girl’s body out in snow. Concluded remarks w/,
“I don’t want you to answer me. I don’t want to discuss it any further.
Just think about it.” Cops never asked Δ any q’s.
a. SC said whatever else it may mean, the rt to counsel granted by
6th and 14th am means that at least a person is entitled to
the help of a lawyer at or after the time that judicial
proceedings have been initiated against him, whether by
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way of formal charge, preliminary hearing, indictment,
information, or arraignment.
b. this language shuts door that 6th am rt to counsel might apply
before judicial proceedings begin.
c. per language of 6th am, only when formalities occur does the
“suspect” become the “accused,” does the “prosecution”
commence, and only then does accused need to prepare for
a “Defense.”
2. McNeill v Wisc – 1991 – rt to counsel under 6th Am is to protect the
unaided layman at critical confrontations with his expert adversary,
the govt, after the adverse positions of govt and Δ have solidified
w/ respect to the alleged crime.
E. Definition: Deliberate elicitation
1. Occurs when govt, thru overt or covert agent,
a. acts w/ purpose of eliciting incrim. info from the accused re:the
pending charges, whether or not the elicitation is likely to
be successful (per Massiah and Williams)
b. purposely sets up an encounter in which incrim. info is likely to
be elicited (Henry).
c. or exlpoits an encounter set up by the accused with the agent
that it knows is likely to result in incrim.info (Moulton).
2. Massiah v US – prohibits deliberate elicitation, but misleading cuz
J.Stewart stated accused was “under interr.” by the covert agent, when
really accused and agent only had lengthy conversations.
a. Massiah’s “delib.elicitation” differs from the Miranda-Innis
concept of “interr.” in that the former test centers on the
subjective motivation of the officer, whereas the latter
std.focuses on the suspect and is based on the obj.finding
that the process will likely result in incrim. info.
b. Hence, Massiah delib.elic. std requires higher level of
culpability on cops’ part.
2. Brewer v Williams – SC further muddied issue, because here cops
never questioned Δ. But SC said the statements cop made were
tantamount to interr., cuz cop deliberately and designedly set out to
elicit info just as surely as – and perhaps more effectively than – if
he had formally interr. him.
3. US v Henry – 1980 – I, pd informant on FBI, placed in jail cell with Δ
after Δ indicted. FBI told I to be alert to any statement made by Δ, but not
to initiate conversation with or question him. However, I engaged in
conversation with Δ; Δ made statements govt tried to introduce at trial.
a. Sc held govt deliberately elicited statements under Massiah
doctrine.
1) I paid on contingency basis, so he had incentive to get
info from Δ
2) I pretended to be fellow inmate, allowing him to
converse with Δ w/out arousing suspicion
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3) Δ was in custody = subtle influences that make inmate
partic.susceptible to ploys of undercover govt
agents.
b. Thus, SC said govt must have known that I’s proximity to Δ
would likely lead to incrim. statements.
3. “By intentionally creating a situation likely to induce Δ to make
incrim.statements w/out the assistance of counsel, govt violated
Δ’s 6th Am rt to counsel,” regardless of who raised the subject of
Δ’s criminal activities, or whether or not I questioned Δ about the
crime or merely “engaged in conversation about it.”
4. While Massiah and Brewer involved purposeful elicitation, here,
delib.elicitation = fact that FBI had knowledge that I would likely
get info = more like FBI was “reckless” = FBI set up
situation/circumstances likely to produce statements.
5. Maine v Moulton – 1985 – reinforced Henry and extended Massiah.
facts very similar to Massiah.
a. Δ and I indicted for theft and released from custody pending
trial. Unbeknownst to Δ, I agreed to cooperate w/
prosecution and testify against Δ. I informed cops that Δ
had suggested to him that a witness in the case ought to be
killed. I let cops wire his telephone; cops recorded 3
conversations btw Δ and I. Δ asked I to meet to discuss
plan to kill W. At meeting, I was wired and asked Δ to
remind him of facts of the previous theft; prosecution tried
to introduce statements at trial.
b. Pros. argued this case diff. from Massiah and Henry cuz here,
Δ initiated phone calls and meeting w/ I, rather than vice
versa. SC disagreed.
c. SC said 6th am rt to counsel doesn’t depend on party that
instigated meeting/conversation. 6th am give accused rt to
rely on counsel as a medium btw him and the state.
d. state has affirmative obligation not to act in manner that
circumvents protections afforded by 6th am.
e. 6th am rt to counsel not violated if state gets info by luck or
happenstance. But State can’t knowingly exploit
opportunity to confront accused w/out counsel present.
F. Definition: Elicitation
1. Kuhlmann v Wilson – 1986 – I, informant, put in cell with instructions
to “keep ears open,”not to ask Δ any q’s, and to report to cops any
statements made by Δ. Trial ct found I followed instructions; pros.
introduced statements at trial.
a. Sc said ok. 6th Am not violated by placement of police agent in
a jail cell with a person against whom charges have been
brought, as long as govt does not conduct investigatory
techniques that are the equivalent of direct police interr.
b. to prove violation of 6th Am, Δ must prove that cops and I took
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some action, beyond mere listening, that was designed to elicit
incrim. remarks.
1) Here, no evidence of affirmative conduct by I.
2) distinguished from Henry cuz there, I stimulated
conversation w/ accused.
3) distinguished from Moulton cuz there, I asked Δ q’s to
refresh his memory.
G. Waiver of 6th Am rt to counsel
1. Zerbst test: for the fruits of postindictment interr. to be admissible in
pros. case in chief, state must prove voluntary, knowing, and
intelligent relinquishment of 6th Am rt to counsel.
2. Prevailing view from J.Powell in Brewer = Once accused asserts rt to
counsel, a valid waiver is possible if pros. proves that cops refrained from
coercion and interrogation and that Δ acted freely on his own initiative to
confess the crime. Hence, once accused indicates desire to talk to atty,
cop-initiated conversation about crime should cease.
a. Massiah, Henry, Moulton, where Δ’s statements obtained by
covert agent, don’t apply here. Δ can’t vk&I waive rt if he
doesn’t know he’s being interrogated.
b. Brewer – Δ arrested and arraigned in Davenport for a Des
Moines murder. Got M’s shortly after arrest and 2x more later. At
arraignment in Davenport, Δ spoke to an atty, who told him to
remain silent til he saw his Des Moines lawyer. Δ also spoke b
phone to his Des Moines atty, who told him same thing. Cops
agreed not to question Δ during transport, but gave him “Christian
burial speech” and Δ made incrim.remarks.
1) SC said violation of 6th am = adversary judicial
proceedings had begun against Δ so his rt to counsel
had attached; statements made by deliberate
elicitation; and Δ had not waived rt to counsel.
2) Δ given M’s X3; SC said he knew his rts. and made
statements voluntarily = no coercion to waive rts.
3) gist is that Δ gave no waiver at all, valid or otherwise.
Waiver requires not merely Δ’s comprehension of
his rts, but his relinquishment. Δ’s consistent
reliance on advice of counsel in dealing with cops
refutes susggestion that he waived that rt.
4) dissent: does this suggest that a suspect is legally
incompetent to change his mind and tell the truth
until an atty is present?
H. When may a waiver be secured?
1. When accused requests counsel
a. Mich. v Jackson – 1986 – Δ arraigned for murder. Judge
informed Δ at hearing that he had rt to have counsel appointed cuz
he was indigent. Δ invoked rt. Notice of appt. mailed to law firm,
34
but before firm got the letter, cops contacted Δ, read M’s and q’d
him. Δ asked several times about his lawyer, but answered q’s.
1) SC held waiver invalid cuz cops initiated conversation
after Δ had requested counsel. Reasons for
prohibiting interr. of uncounseled prisoner who has
asked for help of atty are even stronger after he has
been formally charged w/ offense than in Edwards
situations where interr. occurs before charges filed.
2) Fact that Δ requested counsel at judicial proceeding =
request for atty for ALL purposes relating to the
crim.prosecution and sufficiently barred cops from
q’ing him.
3) SC quoted Moulton and said Δ has rt to depend on
counsel as medium btw himself and state once
formal charges filed.
4) Hence, SC extended protections announced by Sc in
Edwards v Az., a M waiver case, to 6th Am.
5) Jackson seen as prophylactic rule for 6th Am; after
formal charges brought, keeps cops from initiating
q’s that will lead to violation of Δ’s rt to counsel.
2. When accused does not request counsel Dressler p. 450
a. Patterson v Il – 1988 – Δ arrested and jailed. Read M’s, after
which he volunteered to answer q’s. Indicted 2 days later,
triggering 6th am rt to counsel. Cops informed Δ of indictment; Δ
asked q’s about charges and talked about the crime. Cop
interrupted Δ, repeated M’s, and secured waive of Δ’s rts. At the
time, Δ had not retained atty or accepted one by appt.
1) SC upheld admissibility of post-indictment statements.
Jackson only barred interr. AFTER accused asks for
help of atty. Absent request, cops may try to get
waiver of Δ’s 6th am rt.
2) J.White said no diff. btw person against whom charges
have been filed and a pre-indictment person about
to undergo interr. In both cases, suspect has rt to
atty that must be honored IF ASSERTED. But, if rt
not asserted, govt can q after getting valid waiver.
3) Dissent: 5th & 6th Am rts not same. filing of forma
charges fundamentally alters relationship btw state
and accused, conferring increased protections upon
Δ’s in their interactions with authorities. (This
position consistent w/ “adversarial assistance”
model of defense counsel representation that
explains rationale of Massiah).
4) If accused has an atty but does not request to see him,
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Patterson ct in a footnote that a distinct set of
const.safeguards aimed at preserving the sanctity of
atty/client relationship kicks in.
5) Sc cited Maine v Moultonto say that once the 6th am rt
to counsel attaches and the accused has atty, govt
may not directly initiate communication w/ accused
in order to interr. him, but must deal w/ him thru
atty.
I. Elements of a valid 6th am rt to counsel waiver
1. Voluntary – SC has not considered this; would prob. look to M.
jurisprudence, which is in turn based on due process concepts of
voluntariness.
2. Knowing and intelligent – much the same as under M.
a. Per Patterson, an accused who has been admonished w/
warnings prescribed by M’s, has been sufficiently apprised
of nature of 6th Am rts and of consequences of abandoning
those rts, so his waiver will be considered k&i.
b. M’s convey sum and substance of 6th am rt to counsel
c. Dissent: M’s don’t adequately address 6th am rt to counsel in
that fails to address that atty might examine the indictment
for sufficiency before submitting client to interr. or that atty
likely more skilled in negotiating plea bargain and that such
negotiations might be most fruitful if initiated before interr.
J. Scope of 6th Am Exclusionary Rule
1. Nix v Williams – 1984 – SC analyzed 6th Am ER like a 4th Am issue
 did cost/benefit analysis of deterrent principles. Commentators say that
SC neither endorsed nor rejected a 6th Am right to exclusion, but simply
reasoned that an exception to the ER was wholly consistent with the rightbased exclusion
K. When cops investigate 6th Am and Non-6th Am crimes
1. Hypo: Δ’s 6th am rt to counsel has attached re: Crime 1, but not for
Crime2. What if cops covertly or overtly interr. Δ in absence of counsel
or valid waiver and obtain statements about both crimes. May cops say
that they were only seeking info on Crime 2, and therefore be permitted to
to use “inadvertent” statement they obtained re:crime 1? What if govt
says interr. had dual purposes of getting info on both crimes?
a. Per Moulton, can’t use info about crime 1 cuz it will encourage
cops to fabricate investigations and will wipe out
protections recognized in Massiah. But CAN use info on
crime 2, to avoid unnecessary frustration of public’s
interest in investigation of crime.
b. cops “good motive” for getting info about Crime 2 doesn’t
make up for violating Δ’s rts w/ respect to crime 1.
L. Use of evidence for impeachment purposes
1. Mich V Harvey – 1990 – Δ arraigned on rape charges. Atty appointed
36
to rep. him. Δ told cops he wanted to make a statement but didn’t know if
he should talk to atty 1st. After cop convinced him that he didn’t need to
talk to atty cuz atty “would gt copy of statement anyway,” Δ signed
waiver form and made incrim. statements about the crime.
a. Pros. conceded that statements obtained in violation of Jackson
rule, so he couldn’t use them in case-in-chief, but pros.
used them to impeach Δ.
b. SC said statement obtained in violation of the 6th Am Jackson
rule can be used to impeach.
c. search for truth in crim.cse outweighs speculative possibility
that exclusion of evidence might deter future violations of
rules not compelled directly by Const. in 1st place.
M. Fruit of the Poisonous Tree Doctrine
1. FPT doctrine applied to violations of 6th am rt to counsel, so
exceptions to doctrine (inevitable disc., independent source, purged
taint) also apply
2. Pros. must just prove by prepon. of evidence that the info would be
discovered via lawful means.
3. Nix v Williams (follow up to Brewer v Williams) – issue was whether
body found as a result of the “Christian burial speech” could be
used as evid. at trial. Sc said yes; saw no reason to treat this
inevitable disc. case differently than it would have under 4th Am.
VI. 6th am v M.
A. when rt attaches:
1. 6th-after adversarial judicial criminal proceedings initiated against
accused
a. M- not so limited; may attach earlier
2. 6th – not so limited; may attach under circumstances in which M
doesn’t apply
a. M – does not attach unless suspect in custody
3. 6th – prohibits deliberate elicitation; focuses on intentions of officer
and requires proof of deliberate misconduct. Requisite deliberate
misconduct can be found under circumstances approaching recklessness.
a. M – applies when suspect interrogated; term focuses on suspect
and uses obj.test based on a finding of negligence by officer.
Terms not equivalent
4. 6th – applies to deliberate elicitation by undercover agents
a. M – does not apply to interr. by undercover agents
B. Waiver of rt
1. 6th – not limited like M. is. cops must cease interr. for crime suspect
charged with until after he consults w/ atty.
a. M – police don’t have to cease interr. of suspect who requests
atty, unless request occurs under circumstance in which it can be
reas. construed to be an expression for the assistance of an atty in
dealing specifically with custodial interr. by cops.
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2. 6th – Δ may assert rt so as to bar police q’ing, during a judicial
proceeding or while in custody preceding or during the investigation.
a. M – questionable whether accused may initially invoke 5th am
rt to counsel at any time other than immediately prior to or during
police custodial interr.
3. 6th – offense specific; cops must cease q’ing about charged offense,
but can still q about uncharged offenses
a. M – cops must cease q’s on all offenses unless counsel is
present.
4. 6th – Fruit of poisonous tree applies
a. M – FPT does not apply or is far more limited
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