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Criminal Procedure
University of Dayton School of Law
Brenner, Susan W.

University of Dayton School of Law
Prof. Susan Brenner
Criminal Procedure: Investigation
Fall 2013
I.      Interrogation à 5th and 6th amendments
                         i.     General Analysis
1.  Question #1 àWas there coercive police conduct (i.e., did the police “do” something to try to get the person to confess)?
a.    NO à end of analysis. No state action or no coercion, thus no violation of the due process clause of the Fifth Amendment)
b.   YES à Question #2
                                                 i.     Did the police’s actions overbear the suspect’s will, so that the confession is not voluntary?
1.    Look @ Totality of Three Factors:
a. 1. Suspect Characteristics
                                                                                            i.      Ex: Age, health, education, religion, experience with law enforcement, or any other characteristic that would tend to make him/her more or less vulnerable to the police’s interrogation tactics
                                                                                         ii.      Suspect characteristics can act alone to void voluntariness even without actual police coercion: if suspect is forced by god to confess, for example.
b. 2. Police Tactics
                                                                                            i.      Ex: Physical violence, promises of leniency, tricks, lies, exploiting suspect’s fatigue and/or health/mental problems, depravation of food or bathroom, exploitation of suspect’s HOPES or FEARS, etc.
c.  3. Context
                                                                                            i.      Ex: Where and when did interrogation occur, how long did it last, was the suspect given food and/or drink, was the suspect allowed to go to the bathroom, was the suspect given medication he needed, was the suspect’s religion exploited, etc.?
c.    If the Due Process Voluntariness Analysis shows that there is police conduct, but that the suspect’s will was not overborn on the account of his suspect characteristics, police tactics, or the context, then the confession was voluntary and will be admissible under this test.
d.   The Due Process Voluntariness Analysis is ALWAYS alive and can be used even with Messiah and Miranda. 
1.    Applies regardless of the custodial status
2.   Applies regardless of whether suspect has been charged
                      ii.     Private Individual as an Agent of Cops
1.  1. Did private citizen actually gather evidence?
2. 2. Did cops encourage citizen to gather evidence?
                                                 i.     If the private citizen was encouraged or incentivized to gather evidence like a confession, then he is an agent of the state and
a. THUS there is a State Action and thus the confession falls under the Fifth Amendment and the Due Process Voluntariness Test.
                         i.     General
2.  ****Comes from the SIXTH AMENDMENT’S right to counsel ****
                      ii.     Application
1.  Apply Massiah when the “government deliberately elicits incriminating statements without the person’s attorney when the person has been charged or indicted.”
                                                 i.     Thus, Massiah does not apply to “suspects”
1.    HOWEVER, Massiah can be applied to “suspects” if the government’s investigation has FOCUSED!
                                              ii.     Once the Sixth Amendment attaches (i.e., at charging, indicting, or focusing) the police CANNOT
1.    1. Deliberately elicit
                                                                                            i.      Broader than the Miranda definition of “interrogation”
                                                                                         ii.      Are the cops trying to get person to speak?
2.   2. Incriminating statements
                    iii.     Deliberate Eli

is a prophylactic set of rules that RISE ABOVE the protections of the 5th Amendment, and thus can be chipped away. They are NOT the 5th Amendment itself.
                    iii.     Application
1.  Miranda applies when:
a.    1. Suspect is in custody, AND
b.   2. Suspect is being interrogated by police or agent of police
1.    C + I = warning
a. Warning = given + knowledge
b. Right to Silent
                                                                                         i.      Invoke
                                                                                      ii.      Waive
c.  Right to Counsel
                                                                                         i.      Invoke
                                                                                      ii.      Waive
2.   If no custody or no interrogation, then the cops don’t need to give the suspect the Miranda warning. However, if the suspect IS in custody and being interrogated, then the cops need to administer the Miranda warning or risk all statements by the suspect being inadmissible.
2. Custody
a.    Your Home?
                                                 i.     Probably not.
                                              ii.     You are assumed to be in control when you’re at home.
                                            iii.     If you’re a poisoner, then your cell is your home.  If they cops or prison takes you elsewhere inside the prison, then you’re not in your home and you don’t have control.
1.    So a jailhouse rat is totally permissible under Miranda is the rat is talking to the suspect in their cell!