1. Criminal Procedure for the Criminal Justice Professional 11 th Edition John N. Ferdico Henry F. Fradella Christopher Totten Prepared by Tony Wolusky Interrogations, Admissions, and Confessions Chapter 13

2. Safeguarding Constitutional Rights During Interrogations There are three approaches taken. 1. The Due Process Clauses of Fifth and Fourteenth Amendments—only voluntary statements, admissions, and confessions may be introduced 2. The Self-Incrimination Clause of the Fifth Amendment— procedural warnings (Miranda rights) must be given to a person prior to custodial interrogation 3. The Right to Counsel Clause of the Sixth Amendment— protects criminal defendants from making statements, admissions, or confessions without the presence and effective assistance of counsel after the initiation of formal criminal proceedings

3. Miranda v. Arizona (1966) The Court established procedural safeguards to protect the Fifth Amendment privilege against self-incrimination—the familiar Miranda warnings. Prior to custodial interrogations, all suspects must be informed of the following: Their right to remain silent That anything said may be used as evidence Their right to an attorney That an attorney will be provided if he/she is unable to afford one

4. Voluntariness and Due Process after Miranda Any statement given without coercion is considered voluntary. A totality of circumstances approach is used to determine if coercive police activity overcame the defendant’s will.

5. Custodial Interrogation Miranda applies during “custodial interrogation,” as defined by the Supreme Court as: “Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444.

6. Determining “Custody” Determining "custody" typically includes evaluating: 1. The location of the encounter and whether it was familiar to the suspect, or at least neutral or public; 2. The number of officers questioning the suspect; 3. The degree of restraint or force used to physically detain the suspect; 4. The duration and character of the interrogation, including the degree of psychological coercion used to detain the individual; 5. The language used to summon the suspect; 6. The extent to which the suspect is confronted with evidence of guilt; and 7. Whether the suspect initiated contact with the police.

7. Interrogation “Interrogation” is a broad term that includes express questioning and any statements that are reasonable likely to elicit an incriminating response, whether inculpatory or exculpatory. Interrogation does not include: Volunteered statements Clarifying questions Routine questions Spontaneous questions Questions related to public safety Questioning by private citizens Interrogations by undercover agents

8. Assertion of Miranda Rights The rights against self-incrimination must be invoked. A suspect may invoke Miranda rights at any time prior to or during a custodial interrogation. Assertions must be clear and unambiguous. If, after receiving Miranda warnings, a person indicates a desire to remain silent, the interrogation must cease. If the person requests an attorney, the interrogation must cease until an attorney is present.

9. Sufficiency of Miranda Warnings The Miranda warnings: Must be given to all suspects; Apply regardless of the nature or severity of the offense being investigated; Must be completed before custodial interrogations; Is inapplicable to civil proceedings; Need not be given in exact form, as long as they are reasonably conveyed; Must be completely given; and Should be re-administered whenever there has been a break in the continuity of interrogation.

10. Waiver of Miranda Rights Silence is not a waiver. Waivers may be expressly stated or implied. Implied waivers are assessed based on the totality-of- circumstances based on standards set in Moran v. Burbine (1986). Waivers must be voluntary, knowing, and intelligent. 1. Voluntary—the product of a free and deliberate choice rather than police intimidation, coercion, or deception 2. Knowing and intelligent—made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.

11. Effect of Miranda—Edwards in Court Miranda violations are barred only in the prosecution’s case-in-chief. Cannot be used as substantive evidence in the prosecution's case-in-chief to prove the defendant's guilt of crime Voluntary, Mirandaless, statements may still be used to but they may be used to impeach the defendant's testimony at trial or to discover witnesses.

12. Effect of Pre- and Post-Interrogation Silence Invoking Miranda cannot be used against someone at trial. Silence in response to questions asked prior to Miranda warnings (that were not the product of custodial interrogations) may be used to impeach a defendant's testimony at trial.

13. Section 1983 Claims Barred If suspects are interrogated without having been given Miranda warnings, the only remedy is that their unwarned statements may not be admitted at trial as substantive evidence against them. They have no viable Section 1983 claim against the officers who failed to honor their Miranda rights.

14. Attachment of Sixth Amendment Right to Counsel The Sixth Amendment right to counsel is triggered ("attaches") when formal criminal proceedings have begun. Once attached, providing a defendant with Miranda warnings, coupled with informing the person that they have been formally charged with a crime, is sufficient to provide adequate notice to the person of his or her Sixth Amendment rights.

15. Fifth Amendment "Interrogation" vs. Sixth Amendment "Deliberate Elicitation" The Fifth Amendment is concerned with coercive police tactics and self-incrimination; the Sixth Amendment applies even when there is no interrogation. Once the Sixth Amendment attaches: Deliberate elicitation violates right to counsel Passive receipt of information does not violate the right to counsel The Sixth Amendment right to counsel is “offense specific.”

16. Waiver of Sixth Amendment Right to Counsel To prove that a valid waiver of counsel for Sixth Amendment purposes, the prosecution must prove that: 1. The defendant was aware of the right to counsel, and 2. The defendant knowingly, intelligently, and voluntarily relinquished the right.

17. Remedies for Violations of the Sixth Amendment Right to Counsel Any incriminating statements made by a defendant that are obtained in violation of the Sixth Amendment are inadmissible at trial in the prosecution's case-in-chief, but such statements are admissible for impeachment purposes if they were obtained voluntarily.