Branham
CrimPro
Spring 2011
Criminal Procedure: Investigations – Branham
Introduction
o Scope of Constitutional Rights
§ SCOTUS seems to be narrowing the view of Constitutional rights given to defendants.
§ Some state courts do not agree but do not have the power to stop SCOTUS rulings considering they are the arbitrator.
§ So what can state courts do? Look more at their own State constitution.
o State Constitutional Rights
§ If SCOTUS more narrowly defines the Constitution of the US, then the state courts, if they wish, can interpret the state Constitution more broadly.
· Make the state constitutional argument.
PART I: Police Interrogation and the Privilege Against Self-Incrimination
A. Due Process and the Requirement for Voluntariness
· 1. The Requirement for Voluntariness
o Hopt – “a confession should not go to the jury unless it appears to the court to have been voluntary”
§ This principle is based on common law, not the Constitution. The idea is that involuntary confessions are unreliable and should not be admissible as evidence.
o Bram –Self-incrimination is a violation under the Fifth Amendment.
§ “No person shall be compelled in any criminal case to be a witness against himself”.
§ However, a confession can never be received in evidence where the prisoner has been influenced by threat or promise.
o Brown v. Mississippi – 297 U.S. 278 (1936) – Case where man was repeatedly hung. Held that the admissions were involuntary. The confessions elicited this way are deemed to violate due process.
· Due Process – Totality of the Circumstances Test
o Defendant deprived of free will through coercive governmental activity.
§ 1) Details about conduct of police and circumstances of interrogation.
· A) Police use violence?
· B) Psychological Pressures? Threats/Promises? Sympathy with the defendant?
· C) Defendant’s isolation from family/friends/attorney?
· D) Length of interrogation?
· E) Where was he interrogated?
· F) Basic Amenities afforded?
§ 2) Details about the Defendant
· A) How old?
· B) Intelligent?
· C) Educated?
· D) Physical Illness? Mentally Ill?
· E) Aware of Miranda?
· Due Process
o “No person can be deprived of life, liberty and pursuit of happiness [sic] without the due process”
o Policy Rationale
§ 1) Involuntary Confessions are unreliable.
· The concern is that the person is innocent and that the only reason for a confession was not to get killed.
§ 2) Prevent Police Misconduct
§ 3) Contravenes Basic Societal Precepts of Decency
· There are certain tenants.
· The people entrusted with upholding the law, should not violate the law.
§ 4) Respect for “free will” – human dignity
§ 5) Inconsistent with adversarial system of justice.
o Distinction between “voluntary” and “non-voluntary” confessions.
§ Volunteered does not mean voluntary.
§ If a motion to suppress if filed:
· Standard of Proof – Government must prove by a preponderance of the evidence that the confession was voluntary (51%)
· You can still argue with the jury afterwards to the jury that the confession did not mean anything even if you lose. The defendant has a constitutional right to bring forth what elicited the confession in the first place.
o Elements of a Due Process violation of Voluntariness of a Confession
§ 1) Details about the conduct of the police during the circumstances of the interrogation.
§ 2) Psychological Pressures?
o Threats
o Promises (Fulminante)
o Guilt (Spano)
o Lie (Spano) (Leyra v. Dennis) (Frazier v. Cupp)
§ Police can lie though.
o Sympathize (Frazier v. Cupp)
§ 3) How many officers were present/interrogation?
§ 4) Length of the interrogation?
§ 5) Defendant was provided basic amenities?
o Food, water, access to a bathroom
§ 6) Use of force
§ 7) Details about the Accused?
o Level of education
o Intelligence
o Mental illness
o Influence of alcohol/drugs
o Been interrogated before? Arrested before? Experience in the criminal justice system.
o Age?
o Physical condition.
§ 8) Given his Miranda warnings?
§ 9) To what extent was he isolated from family, friends and counsel
§ 10) In custody/arrested?
§ 11) Conditions of confinement.
§ 12) Place of interrogation
· 2. Determining Whether a Confession is Voluntary
o The prosecution has the burden of proving that a confession is voluntary in order to admit it into evidence. (Jackson v. Denno)
o Even if the judge deems the confession voluntary and it is admitted, a defendant still can argue to the jury that it was obtained under circumstances that make it unreliable. (Crane v. Kentucky)
o Factors in such a determination:
§ The length of the interrogation and whether the defendant was deprived of basic bodily functions
· Denial of sleep, food, water, restroom access and very long interrogations are suspect to be involuntary confessions.
§ The use of force and threats of force
o KEY IS RELIABILITY OF THE CONFESSION
· 3. Cases on Point
o Arizona v. Fulminante 199 U.S. 279 (1991) – FBI informant in jail promised protection to defendant if he told him about the crime. D told informant that he raped/murdered a 11 year old girl. SCOTUS held that it was mental coercion injected with a threat of bodily harm. The only motivation in confessing was to avoid harm. Dissent said the confession was not “involuntary” considering the ultimate test is that it is free and unconstrained choice by defendant. D never indicated fear of harm and did not actively seek protection. (Promise of Protection = Coercion)
o Frazier v. Cupp – SCOTUS (1969) – D said “I should probably talk to my lawyer”. There were 2 issues at trial, 1) whether the mentioning was enough to invoke his right to counsel, and 2) whether the confession was voluntary or not. It was held that he did consent to the interrogation, that he made a passing comment and the court should view the facts in the “totality of circumstances” and the facts show no error. Rule – police may lie to you, you must firmly state constitutional rights. Court talked about the intelligence of D, etc. (Lie = OK)
§ Pressure brought by the Police
· 1) Lie – We questioned your cousin and he told us that you weren’t with us.
· 2) Sympathize – Depreciate the significance of the crime (victim made homosexual advances toward you)
· 3) A lawyer would not even help you.
o Spano v. New York 360 U.S. 315 (1959) – D shot a man who beat him earlier. Spano’s attorney tells him not to talk, he doesn’t, he is denied access to the attorney after 4 times over 9 hours. They send D’s friend in who is a cop to elicit a confession, it works. SCOTUS holds that it was not consistent with the 14th amendment. Analysis – SCOTUS finds the confession was inconsistent with the 14th amendment, not because it was inherently untrustworthy, but because there is a deep-rooted feeling that the “police must obey the law while enforcing it; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought as criminals as from the actual criminals themselves.”
§ Some factors SCOTUS mentions is that:
· 1) Spano was not very bright,
· 2) had a history of mental instability,
· 3) was subject to questioning by 14 different people,
· 4) the interrogation lasted 8 straight hours,
· 5) he was fatigued, and
· 6) his requests for his attorney went denied while
· 7) Being lied to 4 different times by his “Friend” Bruno.
o Colorado v. Connelly 479 U.S. 157 (1986) – Man was clearly mentally incapacitated. Here we do not have that the respondent would have the court require sweeping inquiries into the state of mind of a defendant who has confessed, quite divorced from any coercion brought to bear on the defendant by the State. The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, regardless of validity. For a confession to be “involuntary” within the meaning of Due Process Clause of the 14th amendment. (Coercive police activity is a necessary predicate for “involuntariness”)
· Facts about Defendant
o Severely mentally ill
o Hallucinating – god told him to confess or kill himself
o Product of mental illness
· The court said there needed to be more than lack of free will
o There must be coercive government activity predicate
· “Totality of the Circumstances”
o Was the defendant deprived of his free
STODY REQUIREMENT
o A person must be in custody for Miranda to apply.
o A person arrested is “in custody” and thus Miranda must have been given even if the questioning occurs at a person’s home. (Orozco v. Texas)
o However, a person who is “free to leave” is not in custody and Miranda does not apply. (Oregon v. Mathiason)
o If a person is 1) under arrest, or 2) has “significant deprivation of freedom”
o Custody
§ 1) Officer’s intent is irrelevant because we are not worried about the police officer’s intent unless the defendant feels compelled to self-incriminate themselves.
§ 2) Defendant’s subjective perceptions – whether the defendant felt significantly deprived of their freedom.
· Why would this not work? Not workable because we don’t know what is going on in the defendant’s head?
§ 3) Objective Test
· “Reasonable Person” would believe that they have been arrested or if there is a “significant deprivation of freedom” to define custody.
o Defendant can be subject to coercive pressure and it does not mean that the custody requirement is met.
o In Berkemer we know that freedom can be restrained as well. That case = pulled over and significantly deprived of his freedom, but was not in custody for Miranda purposes.
o Defendant should be arrested or the functional equivalent.
§ Reasonable person would believe they are significantly deprived of his freedom and subject to coercive pressures.
· TEST FOR Finding Custody
o Reasonable Person
§ 1) Do they believe they are significantly deprived of freedom?
§ AND
§ 2) Subjected to coercive pressures like those experienced by one in custody.
· Public/brief stops that are not police dominated are not coercive.
· Cases on Custody
o Oregon v. Mathiason 429 U.S. 492 (1977) – 1) There is no indication that the questioning took place in a context where the respondent’s freedom to leave was restricted. 2) He came in voluntarily. 3) He was informed he was not under arrest. 4) Any interview by police will have a coercive element. (Free to leave, then no Miranda required)
o Yarborough v. Alvarado 541 US 652 (2004) – SCOTUS held that a 17 year old would feel “free to leave” an interrogation atmosphere where D was actually free to go. Alvarado was allowed to leave at any time and that even though there was an interrogation environment, a reasonable person would have been fine with leaving. 2) The age does not matter, much like his inexperience with law enforcement. 3) Police need an objective fact intensive way to define “custody” for their job. 4) A subjective test does not fit in these circumstances.
o Berkemer v. McCarty 468 US 420 (1984) – DUI case where D confessed. 1) A person subjugated to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspect or for which he was arrested. 2) a) the stop is temporary and brief, as a majority of traffic stops only last a few minutes. Even though it is true that there is an impairment of freedom to leave and while the 4th amendment sees traffic searches as seizures there is another reason that Miranda should not be extended. B) A traffic stop does not keep the motorist completely at the mercy of the police. The aura of authority is clear and the pressure to exert questions to answers. Traffic stops are pretty much public. The atmosphere is substantially less “police dominated” than other interrogation.
