CRIMINAL PROCEDURE (INVESTIGATIONS)
BRANHAM
FALL 2012
I. Confessions – Violation of Due Process of Law
A. Brown
a. Confessions forced through beatings
b. Involuntary
B. Why torture violates Due Process
a. Confessions will be unreliable
b. Lawlessness of police could be promoted
c. Torture is repugnant to civilized society
d. Value human dignity
C. Difference between voluntary and volunteered statements
a. Volunteered – not in response to interrogation Always admissible
b. Voluntary – in response, but free will not overcome / deprived of power to resist
D. Government has burden of proof to show confess was voluntary
a. Preponderance of the evidence
E. Involuntary test
a. Totality of the circumstances
i. Details of interrogation and conduct of police
i. violence
ii. psychological pressures
ii. Details of defendant
i. age
ii. education, intelligence
iii. mental and physical state
b. Free will overborne or deprived of power to resist through some coercive government activity
c. If not suppressed, defendant can bring into evidence the circumstances surrounding the confession
F. Advantages for defense when confession suppressed for violation of due process
a. Suppressed confession cannot be used for impeachment purposes.
b. Fruit of the poisonous tree doctrine applies more broadly in this setting
II. Miranda
1. Requirements of when cop has to give warning
i. Suspect in custody (not necessarily under arrest)
and
ii. Interrogation
2. Warning (actual or fully effective equivalent)
i. Right to remain silent
a. Must be in clear and unequivocal terms
b. Everyone must be given this one.
c. Let suspect know cop will respect it
ii. Anything you say that is incriminating can be used against you in the court of law
a. Don’t need exact words
b. Let suspect know in adversarial position
iii. You have the right to consult an attorney have an attorney present
a. Must be given
iv. If you have no money cannot afford an attorney, an attorney will be appointed to represent you
a. If Bill Gates is arrested, wouldn’t have to give this, but should anyway.
b. Duckworth v. Eagan said as long as ‘reasonably conveyed’ it’s ok.
3. Fully effective equivalent
i. Assures defendant is aware of rights
ii. Defendant has a continuous opportunity to invoke them
iii. e.g. having an attorney in the room
4. Burden of proof on government that warning given.
5. Is a constitutional decision (Dickerson) that cannot be overruled by congress.
6. Custody
i. Cops state of mind shouldn’t be used b/c concern is on def’s rights and will.
ii. Can’t use subjective test on def.’s state of mind
iii. need to use Reasonable person test
a. would believe under arrest or
b. in a functionally equivalent situation
a. Traffic stop is not (Berkemer); even though significantly deprived of freedom, still not custody b/c concerns of Miranda are lessened by public setting, usually short. Refused to give misdemeanor traffic exception.
Did not want to muddy the waters with exceptions.
b. Significant deprivation of freedom is not enough. Must rise to the level of coercion felt by someone under arrest.
c. Matthiason
i. Lots of facts showing he was under pressure to talk.
ii. Court decided not custodial interrogation. Mainly because he was told he was not under arrest; free to go after done talking.
c. Age taken into account (J.D.B. v. North Carolina) — reasonable 13-year-old.
so long as officer knew or should have known (dicta)
d. Mentally deficient have similar concerns as age, maybe even more so.
e. where do you draw the line at factors of defendant?
f. Prisoners not automatically in custody; have to do analysis (Howes)
iv. Purpose is to protect from compulsive self-incrimination
7. Interrogation
i. Once counsel invoked, cannot interrogate anymore.
ii. Does not have to be a question.
iii. Does not have to be directed to suspect.
iv. Silence is not, but actions might be
v. Innis TEST: words or actions that cops should know are reasonably likely to elicit an incriminating response
a. should know => reasonable police officer
b. reasonable likelihood; not certainty
c. from case -> did not know suspect cared about kids; did not know suspect was disoriented or upset at the time. –> looking for evidence to show what the police should know about the suspect.
d. Not an intent test, but it is relevant. If cop has intent, then it meets the test.
vi. Informants, undercover cops => don’t need to Mirandize; does not apply coercive pressures to the level Miranda was worried about. (Perkins)
8. Fruit of the poisonous tree
i. Elstad
a. Initial Miranda violation (no other due process violation — Voluntary)
b. Miranda then given AND valid waiver of rights
c. 2nd statement is admissable so long as
a. Miranda warnings given and
b. Valid waiver obtained
ii. Seibert
a. Attempted to use Elstad to circumvent Miranda
b. Plurality opinion
a. Elstad first violation was good-faith mistake
b. Could the warnings reasonably convey that suspect could choose to stop talking even if he had talked earlier?
c. Factors to determine if conveyance of rights existed
i. Completeness and detail of the 1st round
ii. Overlapping contents of both
iii. Timing and setting of both
iv. Continuity of police personnel
v. Continuity of questioning (e.g. referring to first conversation)
d. Questioning the admissibility of prior statements would help.
c. Kennedy concurrence
a. Elstad applies in vast instances
b. Except when police deliberately circumvent Miranda
c. Second statements will be suppressed unless first violation has been cured (e.g. tell suspect first statements won’t be used or long enough time and different setting)
d. No definite rule. Lower courts tend to use Kennedy’s rule w/ factors
a. Know the plurality view
b. Be able to apply Kennedy’s – often used
c. Essentially they follow the plurality, unless there is a deliberate violation
iii. Physical Evidence
a. Not protected (Patane) (minority view in the opinion w/ judgment)
b. Concurring justices balance value of evidence w/ relatively minor Miranda violation
9. Exceptions to Miranda
i. Impeachment (Harris)
a. Miranda violated confession
indictment
iv. Arraignment
v. Preliminary hearing
vi. First appearance before judge
vii. NOT warrantless arrest, even though Miranda says that is when it starts (for 5th amend. purposes)
3. AND Critical stage of prosecution — poses substantial prejudice to defendant that can be avoided through counsel’s presence.
4. Protection violated (Massiah rule)
i. AJP started
ii. Law enforcement deliberately elicit incriminating statements
iii. Counsel is absent
iv. Without valid waiver
a. Need to get waiver before elicitation (even w/o attorney present)
b. Must be knowing, intelligent and voluntary
c. Waiver must be clear, no implied waiver
5. Miranda warnings sufficient to apprise def of 6th amend. right to counsel.
i. In non-custodial setting, police must give notice of right to counsel (Miranda not necessary)
6. Offense specific (Cobb)
i. Applies only to the charge where proceedings have begun
ii. Can question about other matters w/o counsel present if no proceedings started
iii. Even if factually related events, the charge controls
a. Does not have to be actually charged w/ each crime for it to apply
b. Blockburger test determines if different
c. If one charge requires proof of a fact that the other does not require
a. Robbery
i. Fact a
ii. Fact b
iii. Fact c
b. Armed robbery
i. All 3 of robbery + 4th
c. Since armed robbery contains all required facts of robbery, considered same offense under Blockburger
d. Burglary and murder require different facts for each, so different offenses.
7. Deliberate elicitation
i. Informant used can be deliberate (Henry)
a. Intentionally created situation likely to induce def. to make incriminating statements w/o counsel
a. Paid on contingency — incentive
b. Def did not know person was informant
c. Indicted
ii. Even if defendant contacts informant, can still be deliberate.
a. Gov’t knowingly circumvents right to counsel
b. Gov’t knowingly exploits opp to confront def w/o counsel
iii. If informant truly passive, then not deliberate elicitation (Kuhlmann)
a. Gov’t must do something more than just listen
8. No initiation requirement — police allowed to approach to ask for waiver
9. Identification Procedures
i. Right to counsel at post-indictment lineup (Wade).
a. Critical stage of prosecution — poses substantial potential prejudice
a. Possible suggestive actions/words by police.
b. Cannot reconstruct lineup accurately on cross-examination.
c. Cannot ask defendant.
