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133 Cards in this Set

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Constitutional Requirements Binding on States
1. The fourth amend prohibiting against unreasonable searches and seizures. (Wolf) And the exclusionary rule requiring that the result of violation of this prohibition not be used as evidence against the defendant (Mapp).
2. The fifth amendment privilege against compulsory self-incrimination (Hogan).
3. The fifth amend prohibition against double jeopardy (Benton).
4.The sixth amend right to a speedy trial.
5. The sixth amend. right to a public jury.
6. The sixth amend right to trial by jury (Duncan).
7. The sixth amend right to confront witnesses
8. The sixth amend right to compulsory process.
9. 6th amend right to assistance of counsel in felony cases (Gideon), and in misdemeanor cases in which imprisonment is imposed.
10. The 8th amend prohibition against cruel and unusual punishment. (Robinson)
Constitutional rights NOT binding on the states
-Right to indictment by grand jury.
-Prohibition against excessive bail.
Exclusionary Rule
Judge-made doctrine that prohibits the introduction,at a criminal trial, of evidence obtained in violation of a defendant's 4th, 5th, or 6th amendment rights.
Rationale for the exclusionary rule
The main purpose of the exclusionary rule is to deter the government (primarily the police)from violating a person's constitutional rights:If the government cannot use evidence obtained in violation of a person's rights, it will be less likely to act in contracention of those rights. The rule also serves as one remedy for deprivation of constitutional rights (other remedies include civil suits, injuctions, etc.).
Fruit of the Poisonous Tree
Generally, not only must illegally obtained evidence be excluded, but also all evidence obtained or derived from exploitation of that evidence. The courts deem such evidence the tainted fruit of the poisonous tree. (Wong Sun).
Exceptions to the Fruit of the Poisonous Tree rule
1. Independent Source
2. Intervening Act of Free Will
3. Inevitable Discovery
4. Live Witness Testimony
5. In-Court indentification
Exclusionary rule is inapplicable to...
1. Grand juries
2. Civil proceedings
3. Internal agency rules
4. Parole revocation proceedings
5. Good faith reliance on existing law, defective search warrant, or clerical error
Good faith exception to the exclusionary rule
When police act in reliance in good faith on a defective search warrant. (Leon)
Exceptions to good faith reliance on search warrant
1. The affidavit underling the warrant is so lacking in probable cause that no resonable police officer would have relied on it
2. The warrant is defective on its face (e.g., it fails to state with particularity the place to be searched or the things to be seized.
3. The police offier or government official obtaining the warrant lied to or misled the magistrate
4. The magistrate has "wholly abandoned his judicial role." (goes to the scene to search.)
Use of excluded evidence for impearchment purposes
Some illegally obtained evidence that is inadmissible in the state's case in chief may nevertheless be used to impeach the defendant's credibility if he takes the stand at trial.
a. Voluntary confessions in violation of Miranda
b. Fruit of illegal searches
Miranda Violations
The fruits derived from statements obtained in violation of Miranda may be admissible despite the exclusionary rule.
Harmless Error Test
A conviction will not be necessarily be overturned merely because improperly obtained evidence was admitted at trial; the harmless error test applies, so a conviction would have resulted despite the improper evidence. On appeal, the gov. bears the burden of showing beyond a reasonable doubt that the admission was harmless. Conviction must be overturned if the error had substantial and injurious effect or influence in determing the jury's verdict.
Right to hearing on motion to suppress
The def is entitled to have the admissibility of the evidence or a confession decided as a matter of law by a judge and out of the hearing of the jury.
Burden of Truth
The gov bears the burden of establishing admissibility by a preponderance of the evidence.
Defendant's Right to Testify
The def has the right to testify at the suppression hearing without his testimony being admitted against him at trial on the issue of guilt.
FOURTH AMENDMENT
Provides that people should be free in their persons from unreasonable searches and seizures.
Search
Gov. intrusion into an area where a person has a reasonable and justifiable expectation of privacy.
Seizure
The exercise of control by the government over a person or thing.
Reasonableness
What is reasonable under th 4A depends on the circumstances.
ARRESTS AND OTHER DETENTIONS
Gev. detention of persons, including arrests, certainly constitute seizures of the person, so they must be reasonable to comply with the 4th amend. Whether a seizure of the person is reasonable depends on the scope of the seizure (just an investigatory stop?) and the strength of the suspicion prompting the seizure (arrest requires probable cause, while an investigatory detention can be based on reasonable suspicion).
Seizure
When a reasonable person would believe that she is not free to leave. Police pursuit of a suspect generally not a seizure.
Arrest
Occurs when the police take a person into custody against her will for purposes of criminal prosecution or interrogation.
PROBABLE CAUSE
An arrest must be based on probable cause. Probable cause to arrest is present when, at the time of arrest, the officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime.
Mistake Offense
An arrest is not invalid merely because the grounds stated for the arrest at the time it was made are erroneous, as long as the officers had other grounds on which there was probable cause for the arrest.
Arrest in Public Places
In contrast to the rule for searches, police gernerally need not obtain a warrant before arresting a person in a public place, even if they have time to get a warrant.
Warrant Requirement for Felonies
A police officer may arrest a person without a warrant when she has reasonable grounds to believe that a felony has been committed and that the person before her committed it.
Warrant Requirement for Misdemeanors
An officer may make a warrantless arrest for a misdemeanor committed in her presence. A crime is committed in the officer's "presence" if she is aware of it through any of her senses. Note: The police may make a warantless misdemeanor arrest even if the crime for which the arrest is made cannot be punished by incarceration.
Home Arrest
The police must have an arrest warrant to effect a nonemergency arrest of individual in her won home. (Payton) All warrantless searches of homes are presumed unreasonable. The burden is on the gov. to demonstrate sufficient exigent circumstances to overcome this presumption.
"Stop and Frisk"
(Investigatory Detentions)
Police have the authority to briefly detain a person for investigative purposes even if they lack probable cause to arrest.
STOP
To make a stop, police must have a reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime (Terry stop)
FRISK
If the police have a reasonable suspicion to believe that the detainee is armed and dangerous, they may also conduct a frisk (a limited search) to ensure that the detainee has no weapons.
REASONABLE SUSPICION
The Court has not specifically defined "reasonable suspiion." It requires something more than a vague suspicion (it is not enough that the detainee was in a crime-filed area, but full probable cause is not required. Whether the standard is met is judged under the totality of the circumstances.
WARDLOW
Reasonable suspicion justifying a stop is present when: 1. a suspect who is standing on a corner in a high crime area 2. flees after noticing the presence of the police. Neither factor standing alone is enough to justify a stop, but together they are sufficiently suspicious.
Informant's tips
(reasonable suspicion for a Terry Stop)
When the source suspicion of criminal activity is an informant's tip, the tip must be accompanied by indicia of reliability sufficient to make the officer's suspicion reasonable.
Duration and Scope
To be valid under Terry, the investigatory stop must be relatively brief and in any even no longer than is necessary to conduct a limited investigation to verify the officer's suspicions.
Identification May Be Required (S&F)
As long as the police have the resonable suspicion required to make a Terry stop, they may require the detained person to identify himself, and the detainee may be arrested for failure to comply with such a requirement. The Court may recognize an exception to this rule under the 5th amend right against self-incrimination if by merely giving his name, the detainee may incriminate himself.
Development of Probable Cause
If during an investigatory detention (S&F), the officer develops probable cause, the detention becomes an arrest, and the officer can proceed on that basis. He can, for example, conduct a full search incident to that arrest.
What constitutes a stop?
If an officer merely approaches a person but does not detain her, no arrest or investigatory detention occurs. Not even reasonable suspicion is necessary in such a cse. A seizure or stop occurs only if a reasonable person would believe she is not free to leave.
Property seizure on reasonable suspicion
Police may briefly seize items upon reasonable suspicion that they are or contain contraband or evidence, but such seizures must be limited. (Place, 90 minute detention of luugage reasonably suspected to contain drugs unconstitutional)
Automobile Stops
Stopping a car is seizure for 4A purposes. Police may not stop a car unless they have at least reasonable suspicion to believe that a law has been violated. However, in certain cases where special law enforcement needs are involved, the Court allows police to set up roadblocks to stop cars without individualized suspicion that the driver has violated some law. Such roadblocks must 1. stop cars on the basis of some neutra, articulable standard 2. be designed to serve purposes closely related to particlar problem pertaining to autos and their mobiltiy.
Police may order occupants out
Provided that a police officer has lawfully stopped a vehical, in the interest of officer safety, the officer may order the occupants to get out. Moreover, if the officer reasonably believes that the detainee is armed and dangerous, she may conduct a frisk of the detainee. She may also search the passenger compartment of the cehicle to look for weapons, even after the driver and other occupants have been ordered out of the auto.
Pretexual Stops
If an officer has probable cause to believe that a traffic law has been violated, the officer may stop the suspect's car, even if the offier's ulterior motive is to investigate whether some other law -for which the officer lacks reasonable suspicion- is being violated. (Whren)
Detention to Obtain a Warrant
If the police have probable cause to believe that a suspect has hidden drugs in his house, they may, for resonable time, prohibit him from going into the house unaccompanied so that they can prevent him from destroying the drugs while they obtain a search warrant.
Occupants of Premises Being Searched May be Detained
Pursuant to the execution of a valid warrant to search for contraband, the police may detain occupants of the premises while a proper search is conducted.
EVIDENTIARY SEARCH AND SEIZURE
Like arrests, evidentiary search and seizures must be reasonable to be valid under fourth amend. Reasonableness here usually means that the police must have obtained a warrant before conducting the search, but there are six circumstances where a warrant is not required.
S&S Analytical Approach
1. Does the def have a 4a right?
-was there gov. conduct?
-did the def have a reasonable expectation of privacy?
2. If so, did the police have a valid warrant?
3. If the police did not have a valid warrant, did they make a valid warrantless search and seizure?
Reasonable Expectation of Privacy
To have a fourth amend. right, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. Objective test. society accepted as objectively reasonable. (Greenwood)
Standing
It is not enough merely that someone has as expectation of privacy in the place searched or the item seized. It must be that of the person complaining. Based on the totality of the circumstances, considering factors such as ownership of the place searched and location of the item seized.
Determining if a person has a reasonable expectation of privacy
-Owned or had a right to possession
-Place searched was in fact sus's home, whether or not they owned or had a right to possession of it; or
-They were an overnight guest of the owner of the placed searched.
Things Held Out to the Public
(REP)
Geberally--No expectation of privacy. A person does not have a reasonable expectation of privacy in objects held out to the public, such as the sound of one's voice; one's handwriting; paint on the outside of a car; the smell of one's luggage or car; account records held by the bank; an auto's movement on public roads and arrival at a private residence, even if detection of such movement requires the use of an electronic beeper placed on the auto; or magazines offered for sale.
Luggage (REP)
Althought the SC has held that one does not have a reasonable expectation of privacy in the smell of one's luggaage, one does have a reasonable expectation of privacy in luggage against phsically invasice inspections. Squeezing luggage to discern its contents constitutes a search.
"Open Fields" Doctrine
Areas outside the "curtilage" (dwelling house and outbuildings) are subject to police entry and search--these areas are "held out to the public" and are unprotected by the 4A. Consider: prozimity to the dwelling, whether it is within the same enclosure (fence), whether the building is used for activities of the home, and the steps taken by the resident to protect the building from the view of passersby.
Fly-Overs
The police may, within the 4A, fly over a field to observe with the naked eye things therein. (Ciraolo) Even a low (400 ft) fly-over by a helicopter to view inside a partially covered greenhouse is permissible (Riley- based on flight being permissible under FAA regs)
Technology Enhanced Searches of Homes
B/c of the strong expectation of privacy wintin one's home, obtaining by sense enhancing tech any info regarding the interior of a home that could not otherwise have been obtained without physical intrusion constitutes a search, at least where the tech in question is not in the gen pub use. (Kyllo-thermal imager of def's jome from outside the curtilage to detect the presence of high intensity lamps commonly used to grow weed constitutes a search)
WARRABT REQUIREMENT
(Searches)
To be reasonable under the 4A, most searches must be pursuant to a warrant. The warrant requirement serves as a check against unfettered police discretion by requiring police to apply to a neutral magistrate for permission to conduct a search. A search conducted without a warrant will be invalid (and evidence discovered during the search must be excluded from evidence) unless it is within one of the six categories of permissible warrantless searches.
Warrant Requirements
To be valid, a warrant must:
1. be issued by a neutral and detached magistrate;
2. be based on probable cause established from facts submitted to the magistrate by a gov. agent upon oath or affirmation; and
3. Particuarly discribe the place to be searched and the items to be seized.
PROBABLE CAUSE
(warrant)
A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the premises or person to be search. (Carroll) The officers requesting the warrant must submit to the magistrate an affidavit contianing sufficient facts and circumstances to enable the magistrate to make an independent evaluation of probable cause.
May it be anticipatory?
(PC)
Yes, it is sufficient that there is reason to believe that seizable evidence will be found on the premises to be searched at a future date when the warrant will be executed; there need not be reason to believe that there is seizable material on the premises at the time the warrant is issued.
Use of Informers
Totality of Circumstances Test
If the officers' affidavit of probable cause is based on information obtained from informers, its sufficiency is determined by the totality of the circumstances. The affidabit need not contain any particular fact about the informer, as long as it includes enough info to allow the magistrate to make a common sense evaluation of probable cause (that the info is trustworthy)
List some relevant facts a magistrate may consider when evaluating an informer's tip.
(no longer prerequisites)
Reliability, Credibility, and Basis of Knolwedge
Three requirements to invalidate a search warrant (valid on its face)
Need all three.
1. False statement was included in the affidavit by the affiant.
2. The affiant intentionally or recklessly included that false statement.
3. The false statement was material to the finding of probable cause (w/o the false statement, the remainder of the affidavit could not support a finding of probable cause)
Can evidence be admitted even though the warrant was not supported by probable cause?
Yes, a finding that the warrant was invalid because it was not supported by PC will not entitle a def to exclude the evidence obtained under the warrant. Evidence obtained by police in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by PC. (Leon)
Warrant must be precise on its face
The warrant must (particularly) describe with reasonable precision the place to be searched and the items to be seized. If it does not, the warrant is unconstitutional, even if the underlying affidavit gives such detail.
Are searches of third-parties permissble?
Yes. The 4A does not bar searches of premises belonging to persons not suspected of crime, as long as there is probable cause to believe evidence of someone's guilt (or something else subject to seizure) will be found. Thus, a warrant can issue for the search of the officers of a newspaper if there is probable cause to believe evidence of someone's guilt of an offense will be found. (Zurcher v. Stanford Daily)
The magistrate who issues the warrant must be...
neutral and detached
Announcement Requirement
Generally, an officer executing a search warrant must knock and announce her authority and purpose and await admittance for a reasonable time or be refused admittance before using force to enter the place to be searched.
Sufficiency of Delay
If the officers executing a warrant have a reasonable fear that evidence, such as cocaine, will be destroyed after they announce themeselves, a limited 15-20 second delay before using force to enter the house is reasonable.
"No Knock" entry possible
No announcement need be made if the officer has reasonable suspicion, bast on facts, that knocking and announcing would be dangerous or futile or that it would inhibit the investigation (destruction of evidence) Whether a no knock entry is justified must be made on a case by case basis; blanket exception for warrants involving frug investigations is impermissible (Richards v. Wisc.) The fact that property damage will result from a "no knock" entry does not require a different standard-- RS is sufficient.
Will the exclusionary rule apply to violations of the K&A rule?
No
May a search be conducted on persons found on the premises?
No, a search warrant does not authorize the polce to search persons found on the premises who are not named in the warrant. (Ybarra). If the police have probable cause to arrest a person discovered on the premises to be searched, however, they my search her incident to the arrest.
Detention of the Occupants
(SW)
A warrant to search for contraband founded on PC implicitly carries with it the limited authority to detain occupants of the premises while a proper search is conducted.
EXCEPTION TO THE WARRANT REQUIREMENT
There are six expcetion to the warrant requirement; i.e., six circumstances where a warrantless searcg us reasonable and therefore is valid under the 4A.
List the six exception to the Warrant Requirement
1. Search incident to a lawful arrest
2. "Automobile" exception
3. Plain View
4. Consent
5. Stop and Frisk
6. Hot Pursuit, Evanescent Evidence, and Other Emergencies
Search Incident to a Lawful Arrest
The police may search the person and areas into which he might reach to obtain weapons or destroy evidence (his "wingspan"). Chimel. The arrestee's wingspan follows him as he moves. Thus, if the arrestee is allowed to enter his home, police may follow and search areas within the arrestee's wingspan in the home. The police may also make a protective sweep of the area beyond the def's wingspan if they believe accomplices may be present. (Buie)
Is a search incident to a traffic citation valid?
No, insufficient basis. If the suspect is not arrested, there can be no search incident to arrest, even if state law gives the officer the option of arresting a suspect or issuing a citation. (Knowles)
Rationale for no searches incident to citation?
When a citation is issued, there is less of a threat to the officer's safety than there is during an arrest, and the only evidence that needs to be preserved in such a case (evidence of speeding) has already been found.
Search of Auto after arrest
A police officer may conduct a warrantless search of the passenger compartment of an automobile (including containers) after arresting the occupants. The entire passenger compartment is within the arrestee's wingspan, but not the trunck. (Belton)
Contemporaneousness Requirement
(SIA)
A search incident to an arrest must be contemporaneous in time and place with the arrest. (Chadwik)
Search incident to incarceration
The police may search an arrestee's personal belongings before incarcerating him after a valid arreat. Similarly, the police may search an entire vehicle- including closed containers within the vehicle-- that has been impounded. (Bertine)
AUTOMOBILE EXCEPTION
If the polce have probable cause to belive that a vehicle such as an automobile contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the vehicle without a warrant. (Carroll)
Detention of the Occupants
(SW)
A warrant to search for contraband founded on PC implicitly carries with it the limited authority to detain occupants of the premises while a proper search is conducted.
EXCEPTION TO THE WARRANT REQUIREMENT
There are six expcetion to the warrant requirement; i.e., six circumstances where a warrantless searcg us reasonable and therefore is valid under the 4A.
List the six exception to the Warrant Requirement
1. Search incident to a lawful arrest
2. "Automobile" exception
3. Plain View
4. Consent
5. Stop and Frisk
6. Hot Pursuit, Evanescent Evidence, and Other Emergencies
Search Incident to a Lawful Arrest
The police may search the person and areas into which he might reach to obtain weapons or destroy evidence (his "wingspan"). Chimel. The arrestee's wingspan follows him as he moves. Thus, if the arrestee is allowed to enter his home, police may follow and search areas within the arrestee's wingspan in the home. The police may also make a protective sweep of the area beyond the def's wingspan if they believe accomplices may be present. (Buie)
Is a search incident to a traffic citation valid?
No, insufficient basis. If the suspect is not arrested, there can be no search incident to arrest, even if state law gives the officer the option of arresting a suspect or issuing a citation. (Knowles)
Rationale for the Auto exception
Automobiles and similar vehicles are mobile and so will not likely be available for search by the time an officer returnes with a warrant. Moreover, the SC has declared that people have a lesser expectation of privacy in their vehicles than in their home. Similarly, if the polce have probable cause to believe that the car itself is contraband, it may be seized from a public place without a warrant. (FL v. White)
Scope of Vehicle Search
If the police have full probable cause to search a vehicle, they can search the entire vehicle (including the trunk)and all containers within the vehicle that might contian the object for which they are searching. (Ross) THus, if the police have probable cause to believe that drugs are within the vehicle, they can search almost any container, but if they have probable cause to believe that an illegal alien is hiding inside the vehicle, they must limit their search to areas where a person could hide.
May an auto search extend to passenger's belongings?
Yes, search not limited to the driver's belongings and extend to packages belonging to a passenger. (Houghten)-Like a driver, a passenger has a reduced expectation of privacy in a car.
If PC to search a container that was recently placed in a car, does the PC extend to the auto with right to search entire car?
No, limited probable cause. If the police only have probable cause to search a container (recently) placed in a vehicle, they may search that container, but the search may not extend to other parts of the car (Acevedo)
Does the auto exception extend to motor homes?
Yes, it extends to any vehicle that has the attributes of mobility and a lesser expectation of privacy similar to a car. Extends to motor homes if they are not at a fixed site. (Carney)
Is contemporaneousness required?
No, if the police are justified in making a warrantless search of a vehicle under this exception at the time of stopping, they may tow the vehicle to the station and search it later.
PLAIN VIEW
Police may make a warrantless seizure when they:
1. are legitimately on the premises;
2. discover evidence,fruits or instrumentalities of a crime, or contraband;
3. See such evidence in plain view; and
4. Have probable cause to believe (it must be immediately apparent) that the item is evidence, contraband, or fruit or instrumentaility of crime.
CONSENT
The police may conduct a valid warrantless searh if they have a volunaty and intelligent consent to do so. Knowledge of the right to withold consent, while a foctor to be considered, is not a prerequisite to establishing voluntary and intelligent consent. (Bustamonte) False announcement of a warrant negates the possibility of consent.
Who has authority to consent?
Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants.
Scope of search w/ consent
Limited by the scope of the consent. However, consent extends to al areas to which a reasonable person under the circumstances would believe it extends.
STOP AND FRISK
A police officer may stop a person without probable cause for arrest if she has an articulable and reasonable suspicion of criminal activity. In such circumstances, if the officer also reasonably believes that the person may be armed and presently dangerous, she may conduct a protective frisk. (Terry)
Scope of Intrusion
(S&F)
Patdown of Outer Clothing
Limited to outer clothing for concealed instruments of assault. (Terry). However, an officer may reach directly into an area of the suspect's clothing, such as his belt, w/o a preliminary frisk, when she has specific info that a weapon is hidden there, even if the information comes from an informant's tip lacking sufficient reliability to support a warrant.
Automobiles
(S&F)
If a vehicle has been properly stopped for a traffic violation, a police offier may order the driver out of the vehicle even without suspicion of criminal activity. If the officer then reasonably believes that the driver may be armed and dangerous, she may conduct a frisk. Moreover, the officer may search the vehicle, even if the officer has not arrested the occupant and has ordered the occupant out of the vehicle, provided the search is limited to those areas in which a weapon may be placed or hidden and the officer possesses a reasonable belief that the occupant is dangerous.
Identification May Be Required
As long as the police have the reasonable suspicion required to make a Terry stop, they may require the detained person to identify himself, and the detainee may be arrested for failure to comply with such a requirement except, perhaps, where the detainee may make a self-incrimination claim.
HOT PURSUIT
Police officers in hot pursuit of a fleeing felon may make a warrantless search and seizure. The scope of the search may be broad as may reasonably be necessary to prevent the suspect from resisting escape. When the police have probable cause and attempt to make a warrantless arrest in a "public p;ace," they may pursue the suspect into private dwellings.
EVANESCENT EVIDENCE
The police may seize without a warrant evidence likely to disappear before a warrant can be obtained, such as a blood sample containing alcohol or fingernail scrapings.
OTHER EMERGENCIES
Certain emergencies, such as contaminated food or drugs, children in touble, and burning fires may justify warrantless searches and seizures. Warrantless entry also is proper whenever the police see someone is injured or threatened with injury.
Confessions
Admissibility analized under 4th, 5th, 6th, and 14th amendments. The 5a gives defendants rights against testimonial self-incrimination. 6a gives defendants rights regardin the assistance of counsel. 14a protects against involuntary confessions.
14th Amendment requirement
VOLUNTARINESS: For admissibility, the Due Process Clause of the 14a requires that they be voluntary. Assessed by looking at the totality of the circumstances, including the suspect's age, education, and mental and physical condition, along with the setting, duration, and manner of police interrogation.
Must be of official compulsion
Only official compulsion will render a confession involuntary for the purposes of the 14a. A confession is not involuntary merely because it is the product of mental disease that prevents the confession from being of the defendant's free will.
Does the harmless error test apply?
Yes. A conviction woll not necessarily be overturned if an involuntary confession was erroneously admitted into evidence. The harmless error test applies, and the conviction will not be overturned if the government can show that there was other overwhelming evidence of guilt.
SIXTH AMENDMED RIGHT TO COUNSEL APPROACH
The Sixth amend provides that in all criminal prosecutions, the de has a right to the assistance of counsel. The right protects defendants from having to face a complicated legal system without competent help. It applies at all critical stages of a criminal prosecution and is violated whent the police deliberately elicit an incriminating statement from a defendant without frist obtaining a waiver of the def's right to have counsel present.
Since Miranda, the Sixth Amend right has been limited to cases where...
adversary judicial proceedings have begun (formal charges have been filed). Massiah. Thus, the right does not apply in precharge custodial interrogations.
5th Amendment privilege against compelles self-incrimination--Miranda
The 5A, applicable to the states through the 14A, provides that no person "shall be compelled to be a witness against himself..." This has been interpreted to mean that a person shall not be compelled to give self-incriminating testimony.
The Miranda Warning
In Miranda, the 5A privilege became the basis for ruling upon the admissibility of a confession. The Miranda warnings and a valid waiver are prerequisites to the admissibility of any statement made by the accused during custodial interrogation.
A person in custody must, prior to interrogation, be clearly informed that:
(i) He has the right to remain silent;
(ii)Anything he says can be used against him in court;
(iii) He has the right to the presence of an attorney; and
(iv) If he cannot afford an attorney, one will be appointed for him if he so desires.
Dickerson
The SC held that Miranda was based on the requirements of the 5A as made applicable to the states via the 14A, and therefore Congress cannot eliminate the Miranda requirements by statute.
Do the Miranda warnings have to be verbatim?
No.
Rewarning after a break?
There is generally no need to repeat the warning merely because of a break in the interrogation, UNLESS the time lapse has been so long tat a failure to do so would seem like an attempt to take advantage of the suspect's ignorance of his rights.
When is Miranda required?
Anyone in police custody and accused of a crime, no matter how minor a crime, must be given Miranda warnings prior to interrogation by the police.
Government Conduct Required
Contrast w/ 6thA right to counsel. Miranda generally applies only to publicly paid police. It does NOT apply where interrogation is by aninformant who the def does not know is working for the police. Perkins. Rationale: The warnings are intended to offset the coercive nature of police-dominated interrogation, and if the def does not know that he is being interrogated by the police, there is no coercive atmosphere to offset.
Custody Requirement
Whether a person is in custody depends on whether the person's freedom of actoin is denied in a significant way. The more a setting resembles a traditional arrest (more constraint), the more likely the Court will consider it to be custody. If the detention is voluntary, it does not constitute custody.
Custody test is objective.
Subjective beliefs are not considered. Considerations of a suspect's age and inexperience is inappropriate, because they are subjective factors. Yarborough.
Traffic Stops
Generally not custodial. Although a routine traffic stop curtails a motorist's freedom of movement, such a stop is presumptively temporary and brief, and the motorist knows that he typically will soon be on his way. therefore, the motorist should not feel unduly coerced. Miranda warnings normally need not be given during a traffic stop.
Interrogation Requirement
"Interrogation" refers not only to epress questioning, but also to any workds or actions on the part of the polce that the police should know are reasonably likely to elicit an incriminating response from the suspect. Innis. Miranda does not apply to spontaneous statements not made in response to interrogation, although officers must give warnings before any follow-up questioning.
WAIVER
A suspect may waive his miranda rights. To be valid, the gov must show, by a preponderance of the evidence, that the waiver was knowing, voluntary, and intelligent. The Court will look to the totality of the circumstances.
Silence
Waiver will not be presumed fro the mere silence of the accused after the warnings are given or from the fact that a confession was eventually obtained. Again the court will look at the totality of the circumstances.
Request for Attoney
A request for an attorney must be specific; a request by the accused to see his probation officer, for example, is not tantamount to a request for an attorney, so that waiver of the right to counsel may still be found.
Police Deception of Defendant's Lawyer
If Miranda warnings are given, a voluntary confession will be admissinle even if the police lie to the def's lawyer about their intent to question the def or fail to inform the def that his lawyer is attempting to see him, as long as adversary judicial proceedings have not commenced. Burbine.
Right to Terminate Interrogation
The accused may terminate police interrogation by invoking either the right to remain silent or the right to counsel. The effect of each differs.
Right to Remain Silent
At any time prior to or during interrogation, the accused may indicate that he wishes to remain silent. If the accused so indicates, all questioning related to the particular crime must stop.
When may questioning resume after the accused has invoked the right to remain silent?
Police may reinitiate questioning where: (1) the police immediately ceased questioning upon Def's request and did not resume questioning for several hours; (2) Defendant was rewarned of his rights; and (3) questioning was limited to a crime that was not the subject of the earler questioning. Mosely.
Right to Counsel
At any time prior to or during interrogation, the accused may also invoke a Miranda (5th amendment) right to counsel. If the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning himself. Edwards v. Arizona
Can questioning resume after the accused has invoked the right to counsel?
NO. All questioning must cease; the police may not even question the accused about a totally unrelated crime, as they can where they accused merely invokes the right to remain silent. Rationale: The right to counsel under Miranda is a prophylactic right designed by the Court to prevent the police from badgering an accused into talking without the aid of counsel, and this purpose can be accomplished only if all questions cease.
May an accused waive his right to counsel after invoking it?
Yes. Oregon v. Bradshaw
Scope of 5th Amendment right to counsel?
Custodial Interrogations
Compare--Sixth Amendment Right
"Offense Specific." Attaches only after formal proceedins have begun. Moreover, whereas invocation of the 5th amendment right privents all questioning.
Request must be unabiguous and specific
A 5th amendment request for counsel can be invoked only by an unambiguous request for counsel in dealing with the custodial interrogation. The request must be sufficiently clear that a reasonable police officer in the same situation would understand the statement to be request for counsel.