5Th Am.

Front 1

How to challenge confessions

Back 1

14th Am--involuntary
5th Am
Miranda violation

Front 2

Requirements for a valid confession

Back 2

knowing, intelligent, voluntary

Front 3

Voluntariness Std.

Back 3

An involuntary confession will be excluded as a violation of due process.

Front 4

Test for Voluntariness

Back 4

1. subjected to coercive conduct
2. coercive conduct overborne Ds will

Front 5

Factors re D's overborne will

Back 5

1. tactics used by police
2. nature of the D

Front 6

Limit on Coercive Conduct

Back 6

The police must subject the D to coercive conduct

Front 7

Steps to Suppress a confession

Back 7

1. File Motion to Suppress
2. Judge will decide whether it was voluntary. If not voluntary it is excluded. If voluntary it goes to the jury and they evaluate it again.

Front 8

When does the 5th Am privilege apply (timeline wise)

Back 8

Both pre-trial and at trial.

Front 9

A criminal case requires

Back 9

Initiation of adverse judicial proceeidng.

Front 10

A D is not a witness against himself if:

Back 10

1. not a criminal case
2. not-testimonial

Front 11

Example of non-testimonial

Back 11

DNA
Blood (Schmerber)
booking questions (Muniz)
fingerprints
speaking at a lineup

Front 12

Application of 6th Am vs. Application of 5th Am

Back 12

6th Am applies post charge. 5th Am applies pre and post charge.

Front 13

Miranda Rule

Back 13

A confession obtained in violation of Miranda must be suppressed, unless it falls within a recognized exception

Front 14

When are miranda warnings required?

Back 14

When the suspect is in custody and the police want to interrogate him

Front 15

Factors re custody

Back 15

1. Was he told he was free to leave?
2. Was he restrained during questioning
3. Did suspect initiate contact or voluntarily aquiesce to questioning

Front 16

Custody Test

Back 16

1. Lawful arrest
2. Restraint on freedom of movement of the degree associated with an arrest.

Front 17

Test for Interrogation

Back 17

1. whether the officer's conduct or words they should have known would be reasonably likely to ellicit an incriminating response.

Front 18

Failure to give Miranda warning creates

Back 18

Presumption of compulsion

Front 19

Model Warnings

Back 19

1. right to remain silent
2. anything you say will be used against you in court
3. right to an attorney
4. if you can't afford one the state will provide one.

Front 20

Sufficiency of Warnings

Back 20

Warnings do not have to be given word for word; they just need to convey the meaning of Miranda.

Front 21

Invocation of Miranda

Back 21

Miranda must be invoked clearly, and specifically.
Silence is insufficient to invoke your rights.

Front 22

Is invocation Offense specific

Back 22

Yes; invocation is offense specific. Thus, officers may question you about another crime after you have invoked your rights re another crime.

Front 23

Consequences of invoking right to counsel.

Back 23

Questioning must cease until 1. attorney is made available (edwards) or present (Minnick) or 2. D initiates qeustioning.

Front 24

Consequences if suspect invokes his right to silence.

Back 24

Questioning must cease for the time being, but officers can approach after a reasonable length of time (i.e. a few hours)

Front 25

Waiver of Miranda Rights

Back 25

A waiver must be voluntary knowing and intelligent.

Front 26

Standard of Proof for a waiver

Back 26

Preponderance of Evidence

Front 27

Is a waiver offense specific?

Back 27

A waiver is valid for all questioning and is not offense specific

Front 28

What does knowingly mean?

Back 28

Knowingly is satisfied by simply giving Miranda warnings and a showing of understanding

Front 29

What does intelligent mean?

Back 29

Intelligent simply means you are competent to make a decision.

Front 30

What does voluntary mean?

Back 30

Product of free will rather than the product of coercion or intimidation

Front 31

Implied Waiver v. Explicit Waiver

Back 31

A waiver can be inferred from the conduct or silence of the defendant

Front 32

Waiving your right after invoking right to counsel

Back 32

1. Have your attorney present. Or
2. Initiating conversation

Front 33

Interrogator's responsibility once D initiates the conversation

Back 33

They must read D his rights again.
Obtain a waiver before they can begin questioning.

Front 34

Initiation

Back 34

Words or conduct that convey the desire to initiate conversations about investigations.

Front 35

How is a waiver judged?

Back 35

Totality of the circumstances.

Front 36

A confession following a Miranda warning

Back 36

Is not sufficient to constitute a waiver.

Front 37

Consequences of Miranda violation

Back 37

Suppression
Rationale: deterrence and fairness.

Front 38

What are the Miranda exceptions?

Back 38

1. impeachment
2. fruits
3. public safety
4. booking questions

Front 39

Impeachment Exception

Back 39

A statement obtained in violation of miranda can be used to impeach a criminal D at trial if he gives contradictory testimony.

Front 40

Public Safety Exception

Back 40

If an officer is motivated by a concern for public safety when asking questions the statements will not be excluded for failure to give Miranda warnings as long as the questioning was non-coercive.

Front 41

Limit to public safety

Back 41

Does not apply to involuntary or coerced statements.

Front 42

Fruits Exception

Back 42

Fruits of miranda violation will not be excluded in certain situations as long as the statement was not coerced.

Front 43

Physical Fruits

Back 43

Physical fruits of a miranda violation will not be suppressed as long as it is a good faith violation

Front 44

2nd Confession

Back 44

A second confession will not be suppressed as long as the officers did not use the second interrogation deliberately and calculating to undermine Miranda warning.

Front 45

Booking questions

Back 45

Miranda rights do not need to be read for booking questions.