ARREST & INTERROGATION Know your rights.. Review from Boring Thursday  Sources of law: statutes.  Sources of law: judge made law.  Judges write opinions.

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Presentation transcript:

ARREST & INTERROGATION Know your rights.

Review from Boring Thursday  Sources of law: statutes.  Sources of law: judge made law.  Judges write opinions and those opinions are “law.”  Stare decisis.  We inherited this judge-made law from merry old England.  Boring.

Today: Arrest and Interrogation  When is someone under arrest?  What are your rights when under arrest?

ARREST!  “5-year-old arrested.”

ARREST!  “Crazy girl gets arrested.”

ARREST!  “Cops arrest fireman.”

ARREST!  What do these video scenarios have in common?  Brainstorm for Starbursts

ARREST!  United States v. Mendenhall (SCOTUS – 1980).  The threatening presence of several officers;  The display of a weapon by an officer;  Some physical touching of a citizen’s person;  Use of language or tone indicating compliance is compelled.

ARREST!  “So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and will not trigger Fourth Amendment protections unless it loses its consensual nature.”

ARREST!  Case studies. Break up into three groups.  Read the problem.  Pick characters.  Discuss the questions.  ACTION!

ARREST! Debrief  Factors demonstrating arrest.  Reasonable person test.  When in doubt, simply ask the officers if you can leave.  ALWAYS BE POLITE.

INTERROGATION  Objectives:  Know your rights when police have taken you into custody.  Know how to invoke those rights when in police custody.

INTERROGATION  Elon James White explains what to do if you’re stopped by the police.

INTERROGATION  Your rights when in police custody:  Right to remain silent.  Right to know that anything you say can be used against you in court.  Right to have an attorney present, even if you can’t afford one.

INTERROGATION  When do these rights apply?  Only apply in custody. As in, under arrest. Not when you’re voluntarily talking to police.

INTERROGATION  How do I invoke these rights?  Like Elon said, you simply say, “I WANT AN ATTORNEY.”  What happens if you invoke your rights?  The police must leave you alone. Invoke: (verb) to summon into action or to bring into existence

INTERROGATION  Case studies. Break up into three groups.  Read the problem.  Pick characters.  Discuss the questions.  ACTION!

INTERROGATION  Group One: The Traffic Stop

INTERROGATION  Group One: The Traffic Stop.  Did the driver have a right to an attorney? Why or why not?  Did the driver “invoke” any such right?

INTERROGATION  Answers:  No such right – not in custody.  Did not invoke rights anyway.  Berkemer v. McCarty (1984)

INTERROGATION  Group Two: The (almost) Silent Person

INTERROGATION  Group Two: The (Almost) Silent Prisoner  Did he/she have a right to remain silent?  Did he/she invoke that right?  What could he/she have done to stop the questioning?

INTERROGATION  Answers:  Yes, he/she had a right to remain silent. He/she was in police custody.  No, he/she did not invoke the right to remain silent. You really have to be silent throughout, or just say, “I’m invoking my right to remain silent.”  Berghuis v. Thompkins (2010) “Zip it.” - Dr. Evil

INTERROGATION  Group Three: The Ambiguous Request

INTERROGATION  Group Three: The Ambiguous Request  Did the suspect invoke his right to a lawyer?  Can the suspect’s confession be used in trial?

INTERROGATION  Answers:  No, the phrase “Maybe I should talk to a lawyer,” did not invoke and the detective didn’t have to clarify.  Yes, because the request wasn’t clear enough, the confession can be used at trial.  Instead, the person should have said “I want a lawyer.”  Davis v. United States (1994)

INTERROGATION  Summary  People in police custody have the right to remain silent and to have a lawyer with them during questioning.  But, a person must clearly invoke those rights.  If a person is not in custody, it means he/she is free to leave (but ask first!).