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

On exam – 1) Interrogatories, 2) Grand Jury, and 3) 4th Amendment
I.        Torture
a.      Law of Interrogations
                                        i.      Definition (in Miranda) – “by custodial interrogation, we mean 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.” 
1.      “interrogation must reflect a measure of compulsion above and beyond that inherent in custody itself.” 
2.      The term “interrogation” refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect!
a.      A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to “interrogation.” 
3.      An interrogation by its very nature, places the suspect in a difficult position. The criminal’s interrogation is not a negotiation process b/w two open and fair vendors, conducting their business on the basis of maximum mutual trust. An interrogation is a competition of the minds” in which the investigator attempts to penetrate the suspect’s thoughts and elicit from him the information the investigator seeks to obtain. 
                                      ii.      Any interrogation inevitably places the suspect in embarrassing situations, burdens him, intrudes his conscious, and penetrates the deepest crevices of his soul, while creating serious emotional pressure.
                                    iii.      Two values clash – 1) the desire to uncover the truth and 2) the desire to protect the dignity and liberty of the individual being interrogated. 
                                    iv.      General Principles:
1.      A reasonable investigation is one free of torture, free of cruel, inhuman treatment of the suspect and free of any degrading handling whatsoever. 
2.      A reasonable investigation is likely to cause discomfort, it may result in insufficient sleep. The conditions under which it is being conducted may be unpleasant. 
a.      Shaking is prohibited
II.     Confessions
a.      Can God Coerce a Confession? – The test is “whether the statements made are the product of rational intellect and free will.” So may severe mental illness be a coercive element that does not comply with the 14th Amendment of due process (in the absence of police activity/brutality)? NO!  Police didn’t do anything wrong! The police did not even know that Francis was mentally incompetent and he approached them! Must be state agent! 
                                        i.      Our involuntary confession jurisprudence is entirely consistent with the settled law requiring some sort of state action to support a claim of violation of the Due Process Clause of the 14th Amendment 
b.      “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, whether true or false.”
c.       Due Process Voluntariness Test –Analyze a person’s will. Essentially, the due process voluntariness test examines whether a person’s will was overborne by the circumstances surrounding the giving of a confession. The due process test takes into consideration the totality of the circumstances – both the characteristics of the accused and the details of the interrogation. The determination then depends upon a weighing of the circumstances of pressure against the power of resistance of the person confessing. Courts ask:
1.      Do you have coercive police conduct? (no, then no reason to suppress)
2.      (if yes) Did coercive police conduct overbear person’s will.
a.      Character of the suspect (mental characteristics, age, etc.)
b.      Tactics used in law enforcement
c.       Context
                                      ii.      Fifth Amendment – No person shall be compelled in any criminal case to be a witness against himself. 
                                    iii.      Bram v. U.S. (1897), Held that the admissibility of a confession depended upon whether it was compelled within the meaning of the Fifth Amendment. To be admissible, a confession must be “free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.”
                                    iv.      Escobedo Elements
1.      Focus on suspect
2.      Custody
3.      Interrogation
4.      Lawyer denial
5.      Right to Remain Silent
III.             Miranda v. Arizona (1966) – Deals with: The admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment not to be compelled to incriminate himself. Right to remain silent, anything you say can and will be used against you in the court of law. You have a right to an attorney, if you cannot afford one, one will be appointed to you. 
a.      “The prophylactic Miranda warnings are not themselves rights protected by the Constitution but are instead measures to insure that the right against compulsory self-incrimination is protected. Requiring Miranda warnings before custodial interrogation provides practical reinforcement for the 5th Amendment right.”
                                        i.      Miranda targets the evil of “isolation of interrogation and vulnerability of suspect.” 
1.      Essentially – The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination. By custodial interrogation, we mean 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. 
2.      The police must read the arrested their rights and the right to an attorney (the presence of counsel) would be the adequate protective devise necessary to make the process of police interrogation conform to the dictates of the privilege. An attorney’s presence would insure that statements made in the governm

d the rule to proceedings in state courts. Since that time, we have consistently applied Miranda’s rule to prosecutions arising in state courts. Miranda “gives concrete constitutional guidelines for law enforcement agencies and courts to follow.” Majority says 1)we applied it to the states 2)it’s working very well and 3)the totality of the circumstances test is more difficult. Bullshit! They don’t want to go through the hardship of changing the law and the stare decisis. 
IV.   Exceptions to Miranda –
a.      Impeachment Exception –
b.      Witness Exception – Witnesses are never suppressible fruits of a Miranda violation. Statements taken in violation of Miranda that lead to a witness will deem the statement inadmissible but the witness could still testify.
c.       Public Safety Exception­­ – There is a public safety exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved. Police questions asked that are reasonably prompted by a concern for the public safety are still admissible.  
V.     Police Interrogation: The 6th Amendment Right to Counsel
a.      Eliciting Statements in the Absence of Counsel – Although it may be proper to continue investigation of a suspected criminal after the defendant has been indicted, the defendant’s own incriminating statements, obtained by law enforcement, without counsel, cannot be used against the D as evidence in trial.
b.      Massiah Rule – Offense Specific!! (Miranda is not! Offense Specific)– Once adversary proceedings have commenced (one has already been charged!) against an individual, he has a right to legal representation when the government interrogates him. For Massiah to apply, YOU MUST HAVE BEEN CHARGED ALREADY. IT ONLY APPLIES TO WHAT YOU HAVE BEEN CHARGED WITH!! (you don’t have to know your talking to police like in Miranda)
                                        i.      Deals with – 1) Statements 2) Deliberately eliciting 3) Indicted 4) Absence on Counsel 
                                      ii.      Overall Rule – “It is illegal for government to 1) deliberately elicit  2) statements (about the crime they are charged) 3) after one has been charged/indicted without their counsel.”
                                    iii.      Must be charged to trigger Massiah!
Theory – Once you’ve been charged, the stakes are so much higher that if you decide you’d like to rely on a lawyer (you decide you need help), the government