1. Criminal Procedure Class Eight

2. Today’s Topics: Confessions Right to counsel Massiah Doctrine After formal charges Covert activity On-going investigation Waiver Exclusionary rule

3. Today’s Topics: Identification Right to counsel Due process limitations

4. Confessions: Sixth Amendment Right to Counsel

5. Massiah Doctrine Predates Miranda by two yearsPredates Miranda by two years Holding: Sixth Amendment violated when agents deliberately elicited confession after D had been indicted and in the absence of his attorneyHolding: Sixth Amendment violated when agents deliberately elicited confession after D had been indicted and in the absence of his attorney

6. Massiah Doctrine Rationale: To deny an accused counsel during this period denies her effective representation at only stage when legal aid and advice would helpRationale: 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)Constitutionalized version of professional ethics rule (adverse party may only be contacted through counsel)

7. 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

8. “After Formal Charges” Brewer v. Williams (Christian Burial speech case) -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]

9. Brewer Facts Des Moines Attorney Advice to defendant not to speak Agreement with police not to question

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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?

17. On-going Investigation Massiah not intended to curtail government efforts to continue to investigate crime with which suspect has been charged

18. 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

19. Waiver Query: Under what conditions can D be said to have waived his 6 th 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

20. 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 6 th 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 6 th Amd right to counsel.

21. 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.

22. Waiver Scenarios Unrelated crimes –Arizona v. Roberson: Inapplicable in 6 th Amd context –McNeil v. Wisconsin: Invocation of 6 th Amd right to counsel is offense specific –Texas v. Cobb (Supp.) (determining which crimes are related to the crime charged)

23. 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

24. 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

25. 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

26. 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)

27. 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)

28. 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

29. Chapter IV: Identification

30. 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

31. Types of Identification Evidence DNA Handwriting analysis Fingerprint evidence Video surveillance cameras Eyewitness testimony

32. 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?

33. 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.

34. 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

35. 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

36. 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?

37. Examples of Eyewitness Procedures Photo spread Lineup One on one show-up

38. 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 post- indictment 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?

39. 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

40. 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

41. 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

42. 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

43. Exercise Identify at least two suggestive possibilities that could occur during a photo display.

44. Right to Counsel Review Procedure: Lineup, before formal charges, without counsel Result: Admissible Case: Kirby v. Illinois

45. 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

46. Right To Counsel Review Procedure: Photo spread, before or after formal charges, without counsel Result: Admissible Case: Ash

47. Due Process Limitations Stovall v. Denno Test: Totality of circumstances Result: Fundamental fairness may require exclusion of identification testimony

48. Application Examples 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

49. Determining Strength of Witness’s Pre-ID “Picture” 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

50. 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

51. Factors In Reliability Determination Opportunity to view Degree of attention Accuracy of description Witness’ level of certainty Time lapse between crime and confrontation

52. Other Considerations Prosecutorial steps to counter collateral issues of prejudice Voice identification Hypnosis –Open Supreme Court question –Three views in lower courts