Criminal Procedure Class Seven

Today’s Topics Confessions & Due Process Voluntariness Test Role of Counsel Deceit Police Action

Today’s Topics Confessions & 5 th Amd Limitations Miranda Exclusionary Rule Developments re: “Custody”, “Interrogation” Invocation & Waiver

Confessions: Theories for Analyzing Due Process 5 th Amd Involuntary Confessions Right to Counsel 6 th Amd Following Formal Charges Self Incrimination 5 th Amd Miranda

DUE PROCESS ANALYSIS

Historical Background Torture at early English common law 18 th century developments: emphasis on “voluntary” Exclusionary rule rationale: statements are untrustworthy Early U.S. cases adopting English view

Due Process Analysis 1897 – 1964, Supreme Court relied on due process clause when confronted with claims of coerced confessions Analytical key: unreliability of confessions extracted by torture Problem area: line drawing, with move toward more subtle and less physical methods of interrogation

Issue Appropriate response to intersection of police practices and person’s free will to withstand coercion

Issues Confronting Court under Voluntariness Test Personal characteristics of accused Physical deprivation or mistreatment Psychological influences Suspect’s awareness of rights

Policy Factors Untrustworthy Offensive to civilized justice system U.S. as accusatorial system Human dignity, personal autonomy Police deterrence

Role of Counsel Spano v. New York Important doctrinal bridge case [spanning due process and right to counsel] Decided on due process grounds --- under totality of circumstances, D’s will was overborne by officer pressure, fatigue and falsely aroused sympathy

Why Doctrine Still Viable Issue: Subsequently Court developed 5th Amd Miranda & 6th Amd Right to Counsel protections in confession context … so why should we care? Only source of protection in some circumstances

Why Doctrine Still Viable Potential for Waiver Collateral Uses

Role of “Deceit” Police deception will not necessarily cause statement to be involuntary Examples Good cop/bad cop False representations about evidence Promises of leniency Threats of more severe punishment

Role of “Threats of Violence” Generally dispositive Arizona v. Fulminate Totality test Credible threat {or actual violence}

Requirement of Police Action Colorado v. Connolly Must be link between course of state activity and resulting confession Free will vs. police overreaching

FIFTH AMENDMENT LIMITATIONS

Historical Link Due process test wasn’t working as sole means to regulate confessions Beginning 1964, Court also used 6 th Amd right to counsel as significant limitation Concern: potential abuses that might occur during investigatory stage

Miranda Concern: Coercive atmosphere inherent in custodial interrogation

Miranda Holding: Prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of D, unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination Burden?

Miranda “Custodial interrogation”: questioning initiated by law enforcement after person either (1) taken into custody or (2) otherwise deprived of freedom of action in any significant way

Miranda Role of counsel: ensure that suspect’s ability to choose whether to speak or remain silent is unfettered

Miranda “Procedural safeguards”: Prior to questioning, person must be warned of right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed Exclusive procedural safeguard?

Miranda Waiver possible Test: voluntary, knowing and intelligent

Miranda Invocation / Assertion At any stage Contrast, invoking privilege against self incrimination at trial

Miranda Impact of D’s actual knowledge of rights Bright line rule

Miranda and Habeas Review Miranda claims can be litigated on collateral attack Contrast: 4 th Amd violations

Miranda & Congress’ Response Section 3501 Appears designed to “overrule” Miranda Return to voluntariness standard

Supreme Court’s Response to Congress Dickerson v. U.S. (2000) CAUTION: MAJOR MODIFICATION TO CASEBOOK ---- Supreme Court has recognized that Miranda safeguards are constitutionally based. Cases discussing “impact” are essentially “re-written” as “modifying” Miranda [not depriving its safeguards of constitutional status]. Limitations still apply; rationale has changed

Impeachment Two possible forms Prior inconsistent statement Trial testimony Prior confession Silence

Use of Miranda-Defective Statements to Impeach Harris v. New York Rationale: Shield provided by Miranda cannot be perverted into license to use perjury as defense Oregon v. Hass

Contrast: Involuntary Confessions Mincey v. Arizona Not admissible, even for impeachment

Impeachment with Silence Doyle v. Ohio Post-warning silence Jenkins v. Anderson Pre-arrest silence Fletcher v. Weir Post-arrest, pre-warning silence

Fruits of Miranda-Defective Confessions Physical evidence Second confession Investigative leads

Fruits: Investigative Leads Michigan v. Tucker During Miranda-defective confession, D gave police name of friend he claimed to be with

Fruits: Second Confession Oregon v. Elstad “Cat out of bag” claim Cost benefit analysis Contrast with E/R function under 4 th Amd Hypo: What if second confession flowed from involuntary confession?

Miranda “Exceptions” Exigent Circumstances New York v. Quarles

Miranda Developments Custody / Location Arrest Prisoners Police Station Probation Officer Terry Interrogation

Miranda Developments Covert Activity Crime-Based Requirement? Adequacy of Warnings

“Custody” Key: If D is not in custody, Miranda does not apply Arrest Contrast Orozco v. Texas Beckwith v. United States

“Custody” Prisoners Mathias v. United States [in jail for unrelated reasons] Questioning at Police Station [not automatically “custody”] Oregon v. Mathiason California v. Behaler

“Custody” Probation Officer interrogation Test for all “custody” determinations: Objective [not subjective intent of officer] Note: Officer’s subjective intent might become relevant if somehow conveyed to suspect Terry stops are not “custody”

“Interrogation” Rhode Island v. Innis Miranda safeguards come into play wherever person in custody is subjected to either Express questioning Functional equivalent Test: Should police know practice is reasonably likely to invoke an incriminating response Arizona v. Mauro Edwards v. Arizona Pennsylvania v. Muniz [routine booking]

Covert Activity Issue: Does Miranda apply if suspect does not know that he is being interrogated by police [think: undercover agent] Illinois v. Perkins

Miranda Applies to Which Offenses? Issue: Does Miranda apply only to serious crimes, or to all custodial interrogation regardless of the charge Berkemier v. McCarty Rationales: clarity; practical application

Adequacy of Warning Given Background: Miranda left open possibility that some other type of warning or statement might suffice to convey the required protections. Issue: What is the constitutional significance when warnings actually given differ from Miranda?

Adequacy of Warnings Given Compare: California v. Prysock Duckworth v. Eagan Conclusion: As long as officer’s explanation of suspect’s rights is a fully effective equivalent, no magic words are necessary

Waiver of Miranda Protections 2 constitutional protections implicated in Miranda warnings: Silence Right to counsel

Waiver of Miranda Protections Issues: How does a suspect relinquish these protections Which party bears the burden of establishing waiver How is waiver shown

Waiver Background Miranda stated that valid waiver would not be assumed from either D’s silence Fact that confession was ultimately obtained 15 years later Court held that neither an express nor written waiver is required Contemporary rule: Sufficient evidence to show suspect understood his rights and voluntarily waived them

Waiver: Test Relinquishment must have been voluntary Product of free and deliberate choice, not intimidation, coercion or deception Waiver must have been made with full awareness both of nature of rights being abandoned and consequences of decision

Examples of Waiver North Carolina v. Butler Moran v. Burbine Teague v. Louisiana

Interplay Miranda and Due Process Voluntary Claims Concept: Confession can still be unconstitutional even if it’s given after receiving Miranda warnings. It could be coerced under traditional standards

Interplay Miranda and Due Process Voluntary Claims Colorado v. Connolly Note: When courts use “voluntary” in confession context, they are not speaking of free will or volitional acts as those terms might be used in moral or philosophical sense

Conditional Waivers “If, then” Connecticut v. Barrett D agreed to tell officers but not to give written confession Significant concept: “We have never embraced a theory that a D’s ignorance of the full consequences of his decisions vitiates their voluntariness.”

Miranda “Plus” Concept: In certain scenarios, Miranda warnings alone are insufficient … and additional warnings or information should be supplied

Miranda “Plus” Routinely rejected by Supreme Court Scenarios in which claim has been raised: Information about scope of questions Advise about inadmissibility of prior confession Notice that attorney attempting to reach suspect

Cases Raising Miranda “Plus” Colorado v. Spring [during questioning about firearms violations, officers asked if D had ever shot anyone]

Cases Raising Miranda “Plus” Oregon v. Elstad [“cat out of the bag”; D unaware that his prior Miranda- defective statement could not be used against him] Moran v. Burbine [sister hired lawyer]

Waiver Following Invocation Context: Suspect invokes his right to silence or right to consult with attorney and later wants to revoke that invocation (and talk to police)

Waiver Following Invocation Issues What police procedures required when D asserts rights (either silence or counsel) When, if ever, can police obtain a valid waiver once Miranda rights are asserted

Asserting Right to Silence Issue: How is suspect’s right to cut off questioning satisfied Police must “scrupulously honor” D’s right to silence once he asserts privilege Not a permanent bar to questioning

Asserting Right to Counsel Consequence of Invocation: Suspect is not subject to further interrogation until Counsel has been made available to him OR Suspect himself initiates further communications Contrast with consequence of asserting right to silence

Suspect’s Invocation & Later Initiation Oregon v. Bradshaw [D initiated further conversation and thus waived his previous invocation of right to consult lawyer]

Suspect’s Invocation & Later Initiation Davis v. United States [if invocation of right to consult attorney is ambiguous or equivocal, police can continue questioning]

Suspect’s Invocation & Later Initiation Smith v. Illinois [“Uh, yeah, I’d like that”]

Exercise In Davis, D argued that allowing police to continue interrogation in face of ambiguous invocation of counsel would permit police to take unfair advantage of inarticulate or overmatched suspects Identify groups on which such a rule might have a disproportionate impact

Miranda’s Application to Unrelated Crimes Issue: Is invocation of counsel under Edwards offense-specific If D asserts right to counsel with attorney, can police keep questioning as long as the topic is another crime? Arizona v. Roberson

Right to Counsel 5th Amd -- Miranda 6th Amd -- once formal adversarial proceedings have begun Distinct protections Consider: McNeil v. Wisconsin

Renewed Questioning Once a Lawyer’s Been Consulted Issue: Does Edwards protection cease after suspect has had opportunity to consult with attorney Can police then approach suspect and ask if he would like to talk to them? Minnink v. Mississippi

Exercise Police are investigating statutory rape claim involving 2 high school students who have been dating and are sexually intimate Girl calls Boy and tells him she is pregnant Police tape phone call Analyze under Due Process and Miranda