Criminal Procedure
Class Eight
Today’s Topics: Confessions
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Right to counsel
Massiah Doctrine
After formal charges
Covert activity
On-going investigation
Waiver
Exclusionary rule
Today’s Topics: Identification
• Right to counsel
• Due process limitations
Confessions: Sixth Amendment
Right to Counsel
Massiah Doctrine
• Predates Miranda by two years
• Holding: Sixth Amendment violated when
agents deliberately elicited confession after
D had been indicted and in the absence of
his attorney
Massiah Doctrine
• Rationale: To deny an accused counsel
during this period denies her effective
representation at only stage when legal aid
and advice would help
• Constitutionalized version of professional
ethics rule (adverse party may only be
contacted through counsel)
Developmental Hiatus
• After Massiah, confessions analyzed under
Sixth Amendment right to counsel entered
dormant period
• Miranda gained ascendancy as vehicle for
addressing propriety of confessions
• Doctrine regained prominence in 1977
“After Formal Charges”
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Brewer v. Williams (Christian Burial
speech case)
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Discussed in search and seizure
context concerning inevitable discovery
doctrine. [Grid that would have led to
discovery of murder victim’s body if suspect
had not confessed]
Brewer Facts
Des Moines Attorney
• Advice to defendant not to speak
• Agreement with police not to question
Brewer Facts
Davenport Attorney
• Advice to defendant not to make any
statements until consulting with his Des
Moines attorney
• Direction to Des Moines officers that D was
not to be questioned until after D had
consulted Des Moines attorney
Additional Facts
• D arrested and arraigned for child’s murder
• Never during 160 mile trip did D express a
willingness to be interrogated
• Frequently said, “when I get to Des Moines and
see [counsel], I am going to tell you the whole
story.”
• Detective knew D was former mental patient
Additional Facts
• Detective knew D was deeply religious
• Christian Burial’s speech basically urged D to lead
detectives to girl’s body so she could get a decent
Christian burial - - particularly before snow storm
made it impossible to find her
Brewer’s Holding
• D’s incriminating statements to police were
obtained in violation of Sixth Amendment
because adversarial judicial proceedings
had commenced against him. Statements
made were result of deliberate elicitation
• Concept familiar from Rhode Island v. Innis
Brewer v. Williams: Waiver
• D can waive right to counsel
• Valid waiver not secured here
• Valid waiver requires State to prove
intentional relinquishment or abandonment
of a known right or privilege
Brewer v. Williams: Lawyer
Request?
• Suspect does not have to request lawyer to
trigger Massiah protections
• Notice: waiver requires not merely
comprehension but relinquishment
• Contrast Miranda, where suspect must
actually invoke right to counsel
Covert Police Activities
• More protective than Miranda
– Miranda only applies to custodial interrogation - - thus
suspect has to know he is speaking to police officer
• Contrast
– Jailhouse plant: U.S. v. Henry
– Listening post: Kuhlmann v. Wilson
• Analytical key: Is this a “passive listener”? Or are they
eliciting information? Is the informant a state agent?
On-going Investigation
• Massiah not intended to curtail government
efforts to continue to investigate crime with
which suspect has been charged
On-going Investigation
• Only limits contact police may have with
suspect once formal charges has begun and
right to counsel attaches.
• Issue: Sixth Amendment prohibits officer
from getting information from the accused
on charged crimes
– Maine v. Moulton
Waiver
• Query: Under what conditions can D be
said to have waived his 6th Amd rights?
– Brewer v. Williams held gov’t must show more
than simply that D received warnings and
elected to speak
• Possible approach: Conformity with
Miranda waiver doctrine
Waiver Scenarios
• Post-Miranda warning waiver
– Issue: In Miranda context, warnings provide suspect
with all information needed to make a knowing waiver.
Does the same apply for waiver of 6th Amd right to
counsel?
– Patterson v. Illinois: D, after indictment, received
Miranda warnings, signed waiver form, and confessed.
He never invoked his right to counsel. Court rejected
argument that Miranda warnings were not adequate to
inform D of his 6th Amd right to counsel.
Waiver Scenarios
• Post-invocation waiver
– Michigan v. Jackson
– Held: D could only have waived if he initiated
conversation and knowingly and voluntarily
waived his rights.
Waiver Scenarios
• Unrelated crimes
– Arizona v. Roberson: Inapplicable in 6th Amd
context
– McNeil v. Wisconsin: Invocation of 6th Amd
right to counsel is offense specific
– Texas v. Cobb (Supp.) (determining which
crimes are related to the crime charged)
Exclusionary Rule
• Issue: What should be the remedy for eliciting
statement in violation of Sixth Amendment right
to counsel?
• Open question
• Possible Approach: Suppression of statement
– Arguments against: Analogy to good faith exception to
Fourth Amendment exclusionary rule (inapplicable
after weighing cost and benefits)
– Arguments favoring: Violation of Massiah not
completed until confession admitted at trial
Review: Fifth Amendment v.
Sixth Amendment
• Issue: Waiving right to counsel after
invocation
• Fifth Amendment: Edwards v. Arizona
• Sixth Amendment: Michigan v. Jackson
• Same Test
– Suspect must initiate
– Knowing and voluntary
Review: Fifth Amendment v.
Sixth Amendment
• Issue: Waiving right to counsel after
Miranda warnings
• Fifth Amendment: Moran v. Burbine
• Sixth Amendment: Patterson v. Illinois
– No additional warnings needed
– CAUTION: Might be invalid if (1) attorney
attempting to reach (2) surreptitious
conversation between undercover officer and D
Review: Fifth Amendment v.
Sixth Amendment
• Issue: Waiver when not told attorney trying
to reach
• Fifth Amendment: Statement valid
– Moran v. Burbine
• Sixth Amendment: Statement Invalid
– Patterson v. Illinois (footnote)
Review: Fifth Amendment v.
Sixth Amendment
• Issue: Use of covert/undercover questioner
• Fifth Amendment: Permissible
– Illinois v. Perkins
• Sixth Amendment: Invalid
– U.S. v. Henry (unless no government effort to
elicit)
Review: Fifth Amendment v.
Sixth Amendment
• Issue: Questioning about unrelated crimes
after invocation of right to counsel
• Fifth Amendment: Prohibited
– Arizona v. Roberson
• Sixth Amendment: Permissible
– McNeil v. Wisconsin
Chapter IV: Identification
Concerns
• Bad IDs are “conceivably the greatest single
threat to the achievement of our ideal that
no innocent man shall be punished.”
• 1996 U.S. Department of Justice study,
Convicted by Juries, Exonerated by Science
Types of Identification
Evidence
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DNA
Handwriting analysis
Fingerprint evidence
Video surveillance cameras
Eyewitness testimony
Eyewitness Testimony: Scenario I
• Paradigm: In-Court Identification
• Can you identify the person who robbed
your bank?
• Yes
• Would you please point that person out?
Eyewitness Testimony: Scenario I
• It is the defendant, seated there at the table
• May the record show that the witness has
identified the defendant?
• The record will also indicate
• Are you certain of your identification?
• Yes, I had a good view of him at the time of
the robbery.
Scenario II
• Paradigm: Testimony Concerning Prior
Identification [I.e., an identification made outside
of court]
• Sometime has passed since the robbery, has it not?
• Yes
• But, did you have an opportunity prior to trial to
make an identification?
• Yes
Scenario II
• When was that?
• I went to a lineup and viewed seven men. I picked
out the defendant at that time also. That was
several months ago.
• Where you sure then as to your identification?
• Yes
• Was your memory even clearer several months
ago than it is today?
• Yes
Exercise: Policy Considerations
• Does the defendant have the right to sit in the
spectator or public section of a courtroom when a
witness at trial seeks to make an identification?
• Assume D who asked for the in-court equivalent
of a lineup has “stacked” the courtroom with
people from her community or her immediate
family who most resemble D.
• Should this be permitted?
Examples of
Eyewitness Procedures
• Photo spread
• Lineup
• One on one show-up
Impact Right to Counsel
Violation: In-Court ID
• In-Court identification testimony (Scenario I)
• U.S. v. Wade
– Issue: Whether in-court identification should be
excluded from evidence because D was placed in postindictment lineup without notice to counsel
– Issue Restated: Should prosecution have opportunity to
establish that in-court identification was based on
observations of D other than the lineup?
Purging the Taint: Items
Considered
• Prior opportunity to observe
• Any discrepancies between pre-lineup
description and actual description
• Identifying someone else prior to lineup
• Identifying D by picture prior to lineup
• Failure to identify D on prior occasion
• Lapse of time
Impact Right to Counsel
Violation: Prior ID
• Use of testimony in court concerning out of
court identification (Scenario II)
• Gilbert v. California
• Contrast, Wade
• Per se rule of exclusion
• Harmless error test
When Does Right to Counsel
Attach
• Kirby v. Illinois
• Initiation of judicial criminal proceedings is
starting point of adversary system
• Filing formal charges (e.g. indictment)
• Consequence: Wade and Gilbert do not
apply to pre-formal charges lineups or show
ups
Right to Counsel: Photo Spread
• Context: Photograph identification
procedures [mug books, photo “lineup”
• United States v. Ash
• Holding: no right to counsel, regardless if
held before or after indictment
• Rationale: D is not present at photographic
display. No reason to have advisor or
spokesperson
Exercise
• Identify at least two suggestive possibilities
that could occur during a photo display.
Right to Counsel Review
• Procedure: Lineup, before formal charges,
without counsel
• Result: Admissible
• Case: Kirby v. Illinois
Right To Counsel Review
• Procedure: Lineup after formal charge,
without counsel
• Result: No out of court identification
testimony
• Result: No in-court identification testimony
unless taint purged
• Cases: Gilbert/Wade
Right To Counsel Review
• Procedure: Photo spread, before or after
formal charges, without counsel
• Result: Admissible
• Case: Ash
Due Process Limitations
• Stovall v. Denno
• Test: Totality of circumstances
• Result: Fundamental fairness may require
exclusion of identification testimony
Application Examples
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Neil v. Biggers
Simmons v. United States
Foster v. California
Theory: Due process test protects against
identification so impermissibly suggestive
as to give rise to very substantial likelihood
of irreparable misidentification
Determining Strength of
Witness’s Pre-ID “Picture”
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How good a look before or during? crime
How attentive
Any memory loss
Any variance from description given by
witness (clarity and detail)
• Having identified anyone else
• Degree of certainty at time identification
made
Reliability
• Manson v. Brathwaite
• Issue: Whether due process compels
exclusion of pre-trial I.D. evidence obtained
by police procedures both suggestive and
unnecessary
• NOTE: Reliability becomes linchpin in
determining admissibility of I.D. testimony
Factors In Reliability
Determination
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Opportunity to view
Degree of attention
Accuracy of description
Witness’ level of certainty
Time lapse between crime and confrontation
Other Considerations
• Prosecutorial steps to counter collateral
issues of prejudice
• Voice identification
• Hypnosis
– Open Supreme Court question
– Three views in lower courts