Carter Crim Pro Investigation Spring 2012
Cases – quick reference
Entrapment
Grimes-8-informants pd on contingency
Hampton-9-when DP comes into play
Jacobson-6-child porn;repeated solicitation
Kelly-9-ABSCAM
Mathews-8-entrap.defense still available even if Δ denies element of crime
Russell-5,7,8,9-meth.maker w/ govt supplies
Sherman-5-drug addict
Sorrels-5-prohibition case defining subj.approach
Williamson-8-informants pd on contingency (overruled by Grimes)
Fed v State
Molloy-468-confession in state court subject to fed.ct std.
Withrow-35,583-fed.habeas relief is available to state prisoner convicted on basis of statements obtained in violation of M.
Coerced Confessions
Ashcraft-20-36 hr incommunicado=coercion
Col.v Spring-21,31-coer≠ Δ’s ignorance about all topics he’ll be interr. about
Connelly-21,614-no police conduct causally related to confession=voluntary confession (Δ mentally ill here)
Fenton-32,602-voluntariness of confession when cops used excessive friendliness.
Fulminante-19,22,612-credible threat of violence against Δ = confession involuntary; harmless error & materiality
Harrison-22-FOTP
Hopt-11-Sc adopts common law rule of CC’s
Leyra v Denno-20-coerc=deception when cops pretended to be doctors
Lynmumn-20-coercion=cops’ misrep. law, deception
Perkins-21-no deception=covert interr.
Spano-20-manipulation=coercion
5th Am.
§3501-41,498-tried to legislatively overrule M.
Albertson-15-required records doctrine
Allen-28,582-psychiatric interviews to deem Δ sexually dangerous person not criminal w/in meaning of 5th Am.
Barrett-545-Δ’s refusal to make written statement still = valid waiver of M’s.
Beckwith-26,28,516-focus=q’s initiated by cops after Δ in custody
Beheler-26,509,518-police station q’s necessarily ≠ CI if Δ voluntarily accompanies cops.
Berkemer-26,27,518-roadside q’s during routine traffic stop ≠ CI
Bouknight-16-required records doctrine
Boyd-17-PASI involves private papers
Bradshaw-36,557-Δ initiates comm.w/cops after assertion of RTC.
Bram-13,20-factors for voluntariness
Brown-510-M’s will not purge taint of preceding illegal arrest
Brown v Miss-13-DP invalidates coerced conf.
Burbine-31,32,571- Although D must be informed of his rt to counsel, D not Const.entitled to know that his atty wishes to see him.
Butler-33,543-lack of “specifically made” warnings ≠ no waiver recognized. Suspect may sign waiver but still indicate he is willing to talk.
Byers-16-required records doctrine
Col.vSpring-31-k&I of waiver
Connelly-21,31,614-waiver by prepon.of evid.
Couch-18-PASI adheres to person
Davis-37,561-Δ’s request for counsel must be unambiguous.
Dickerson-507-M.=C.doctrineà Congress can’t override M.
Dionisio-17-PASI & handwriting as phys.evid.
Doe-17-definition of “testimonial” evid.
Duckworth-25,511-M’s need not conform to precise formula as long as they “touch right bases.”
Edwards-31,36,510,548-once Δ assert RTC, cops must cease all q’s on any topic until he sees atty.
Elstad-31,32,34-Δ’s ignorance of full consequences of waiver=still voluntary
Estelle-28,581-psych.exam violated 5th and 6th Am
Fare-546-Δ’s request for prob.officer ≠request for atty under M.
Fisher-15-compulsion=physical or moral
Garrity-15-compulsion via threats of firing
Green-555-Δ asserted RTC good for 5 months
Harris-33,509-Δ’s M.less statements can be used to impeach him
Hass-509-statements obtained after refusal to honor Δ’s assertion of M’s can be used to impeach him.
Heike-18-PASI ≠ remote dangers
Hoffman-18-PASI liberally construed
Holt-18-PASI & trying on clothes
Innis-28,519-handicapped kid speech; M’s needed for CI or functional equiv.
Jackson-22-when 5ARTC attaches
Johnson-18-PASI =party producing evidence, but not it’s production by other party (cops).
Lefkowitz-16-PASI may be asserted in any proceeding if statements may incriminate in later crim.proceeding
Mandujano-25,718- M’s not req’d before grand jury proceeding
Mathiason-27,509,518-police station q’s necessarily ≠ CI if Δ goes to station voluntarily
Mauro-526-CI≠allowing Δ1 and Δ2 to speak after Δ1 asserted RTC. Statements admiss.
McNeil-37,567- assertion of 6th Am RTC at bail hearing ≠ invocation of 5th Am Edwards-based RTC during interr.
Mesa-526-Interr=adversarial & inquisitory q’s designed to elicit incrim.response; not just listening by cop.
Minnick-36,550- after Δ asserts RTC, CI must stop and may not be restarted w/out atty’s presence
Miranda-23,475-pros.has heavy burden to prove KVI of waiver;
Molloy-13,23-incorp. PASI into BOR.
Mosley-35,509,547-if Δ asserts RTS, cops may resume q’s later
Muniz-17,29,30,530-booking exception to M; testimonial v nontestimonial evidence
Neville-15-compulsion via required submission to tests
Orozco-26,538-CI can occur outside police station, even at Δ’s home.
Perkins-29,30,528-M’s not required when Δ unaware he’s speaking to undercover cop.
Portash-18-Δ testimony w/ immunity not admiss. at later trial
Prysock-25-elements of M’s
Quarles-29,503,532- public safety exception to M.
Roberson-548-after Δ asserts RTC, cops can’t interr. Δ re:other crimes.
Roberts-14-must invoke PASI in timely fashion
Royer-26-CI=room at airport
Shapiro-15-required records doctrine
Schmerber-17,29-testimonial v phys. evidence
Spring-514-Δ needn’t know in advance of all topics of q’s cops will ask or every possible consequence of waiver.
Stansbury-516-cop’s subj.intent/undisc.view of Δ’s status irrelevant to assessment of custody
Tague-543-waiver ≠ showing Δ given M’s and thereafter gave incrim.statement
Tucker-34,40,502-M not C.req.; fruit of poisonous tree not app.to M violations re: W’s.
Wade-17-PASI & human voice as phys.evid.
Zerbst-31,33,544-waiver=pros. shows intentional relinquishment or aband.of known rt; but not technically adopted by M.ct.
Escobedo-23462-6th am rt to counsel-pt btw arrest and indictment arguably a critical stage
Massiah-460-6th am rt to counsel prevents post-indictment, police-orchestrated extrajudicial proceedings
Spano –20,459-6th am rt to counsel attaches when formally charged
6th Am RTC
Brewer-29,43,44,46,619-6th am; Christian Burial Speech as deliberate elicitation
Burbine-42-starts when proceedings turn accusatorial
Harvey-49-statements obtained in violation of 6ARTC admissible to impeach.
Henry-44,635-jailhouse informants; cops can’t intent.create situation likely to induce Δ to talk after 6ARTC attaches; can’t stimulate conversation
Jackson-42,47-Δentitled to atty from time charges filed
Kuhlmann-46,636-jailhouse informant; post-indict. evid. gathered can be used as long as informant passively listens/responds
Massiah-23,42,44,460-once proceedings begin against Δ, he has rt to legal rep. during interr.
McNeill-42,44,-6ARTC offense specific; once asserted, interr.must cease
Moulton-45,49,634-can’t get statements from Δ after 6th Am RTC attaches, even if the cops got them in way unrelated to pending charges; BOP on Δ to show cops took action.
Nix-48,49-6Th Am ER FOTP
Patterson-47,629-Δ who has had M’s has been sufficiently apprised of 6th Am rts &of the consequenced of abandoning those rts, so waiver will be kv&i.
Zerbst-46-pros.must prove kv&I waiver by prepon. of evid.
Kirby-655-lineups;6ARTC hasn’t attached pre-indictment, so atty not req’s at lineup
Wade-641-lineup is critical stage to which 6ARTC attaches
I. Entrapment
Not a Const.law doctrine; so states not required to have; differs from state to state.
A. SUBJECTIVE APPROACH: from Sorrells – Entrapment proved if govt
agent induces innocent person who is not predisposed to commit the type of offense charged. Sc more likely to find entrapment if govt agent had to repeatedly, persistently request D partake in activity, if govt agent “befriends” D. Did govt have special info to suggest D was predisposed at time of initial contact (per Jacobson)? Cops must have info that suggests they should even begin to investigate (Jacobson)
1. Sorrels — SC first recognized entrapment defense During Prohibition,
agent gained D’s trust and asked him 3 times for liquor before getting some.
a. SC said cops can’t instigate a criminal act by persons otherwise
innocent in order to lure them into commission and to punish them.
b. Focused on predisposition of D. Therefore, D who claims
entrapment must be prepared to have his past and present life scrutinized.
c. J.Roberts’ concurrence said courts must be closed to trial of
crime instigated by govt’s own agents. (focused on govt. involvment.)
2. Sherman –govt informant met D at dr’s office where both men being
treated for narcotics addiction. Agent befriended D and asked D for source for drugs. Agent repeated and persistently begged for drugs; D finally agreed as a favor. D did not sell the drugs to agent for profit; more an act of pity fo
rimes committed with a willing victim who will not complain, making normal detection virtually impossible.
c. founded on deception during which cops must often act and
speak with vulgarity and profanity. Not a wholesome cop practice.
d. criticized cuz it induces someone to commit crime who
normally wouldn’t
e. but useless to criticize method if it’s the only effective way to
protect society from certain activities.
3. Viewpoint: Function of law enforcement not to manufacture crime.
Must draw line between trap for unwary innocent and unwary criminal.
4. Viewpoint: Posner says when police incite someone who would not
normally commit crime and then punish him, this is a waste of resources that could be used instead to fight high crime rate that already exists. But if the incitement just encourages someone to commit crime who would eventually have done so anyway, costs of apprhension and conviction can be minimized. Hence entrapment may be defined as unproductive use of law enforcement resources.
5. Viewpoint: Central evil of entrapment is discriminatory law
enforcement because the selection of any target is always a political act.
6. Comment from dissent if US v Russell –Problems w/ obj.test=criminal
informants that are involved won’t abide by the rules of NOT making crime attractive to a target.
a. Possible solution = retain subj.test but get rid of focus on
predisposition. If test construed to exclude hearsay evidence, the subjective test is more reliable.
7. Williamson v US – 1962 – informant promised more money if obtained
the evidence cops sought. Sc invalidated conviction resting upon evidence obtained by informants paid on contingency. But case not often followed by other courts!
8. US v Grimes – 1971 – overruled Williamson. Said contingent fee
informer not more likely to manufacture/lie than W’s acting for other, more common reasons.
9. Mathews v Us – 1988 – defendant who denies one or more of the
elements of a crime still entitled to an entrapment instruction whenever there is sufficient evidence that a reas.jury could find entrapment.
10. Entrapment defense usually a matter for jury.
a. Pro – jury has special and/or traditional competence to judge
matters of credibility or motivation and to assess subjective response to stimulus of police encouragement. Jury nullification may occur if police conduct evokes moral revulsion.
b. Con – keeping issue away from jury prevents jury from hearing
a lot of bad character evidence. Ct’s function to preserve its own purity; only cts can provide cops with necessary guidance.
11. BOP
a. Subjective approach – BOP on D to establish level of
inducement by govt. Unclear whether he must provide some evidence or do so by preponderance of evidence. BOP then shifts to govt to negate the defense by establishing predisposition of D.
b. Objective approach – entrapment viewed as affirmative
defense; doesn’t negate an element of the crime charged. Entire BOP for production and persuasion on D. Must establish by preponderance of evidence.
D. Due process defense to govt overinvolvement in a criminal enterprise
1. Hampton v US – 1976 — D convicted of selling drugs provided by feds
to feds.
