5th Amendment

Question 1

Kastigar v. US

Answer 1

• Gov MAY COMPEL testimony from a witness who has invoked 5th amend right to silence by giving that witness immunity from use of both the compelled testimony and any evidence derived from that testimony in a subsequent criminal proceeding → AKA witness may NOT assert the privilege & refuse to testify if witness has been granted use-and-derivative-use immunity
• Court holds that 5a is only protecting the narrowest possible interp – only the use/derivative; use only testimony that would directly support evidence of a crime, or be used to locate evidence of a crime

Question 2

Testimonial?

Answer 2

Testimonial:
Oral statements in court in response to questions
Oral statements during custodial interrogation

Non-testimonial:
Physical Evidence (blood, hair, voice, appearance)
Signature or handwriting, even if used to gain access to records.

Question 3

Salinas v. Texas (5A MUST be Asserted)

Answer 3

• Not self-executing like 4a; failure to assert can be fatal later on
• Puts govt on notice – and they can decide whether or not to grant immunity
• Helps courts adjudicate if involving formal witness testimony
• Generally requires verbal assertion of the privilege

the mere act of remaining silent is, on its own, insufficient to imply the suspect has asserted 5A; absent the suspect’s invocation of 5A—or some exception from the invocation requirement (Griffin, Miranda, Garrity, Leary)—a suspect’s voluntary interactions may be used against them at trial.
- Here, the jury was permitted to draw an adverse inference from the suspect’s silence during voluntary questioning.

• 5th amend argument FAILS b/c Salinas did NOT expressly invoke privilege in response to questions - though there is no formula necessary to invoke privilege, witness does not do so by simply standing mute - b/c he was required to assert it in order to benefit from it – his claim FAILS!!!
• 2 exceptions to ASSERTION requirement → (1) Griffin = criminal D need not take stand & assert privilege at own trial b/c a criminal D has an absolute right not to testify, (2) witness’ failure to invoke privilege must be excused where gov coercion makes his forfeiture of privilege involuntary

Question 4

Baltimore City of Social Services v. Bouknight (1990)

Answer 4

a person can’t claim 5A protection based upon the incrimination that may result from the contents or nature of an “item” they are demanded to produce.
* Moreover, the 5A protection may not be invoked to resist compliance w/ a regulatory regime constructed to effect the State’s public purposes unrelated to the enforcement of its criminal laws
* Here, D’s refusal to “produce” her child, subject to a protective supervisory order, wasn’t protected by 5A—D can’t claim 5A privilege based upon anything that physical examination of the child might’ve revealed, and the order was pursuant to a regulatory regime unrelated to criminal enforcement.

• Protection against self-incrimination may extend, in some cases, to production orders where compliance would amount to an incriminating testimonial statement about the thing produced (here, for example the mother argues that the act of producing child = testimony)
• BUT, in civil regulatory scheme, 5th amend privilege is NOT GOING TO BAR inherently testimonial statements Even if producing Maurice would amount to an incriminating testimonial statement, mother cannot assert 5th Amend’s protection to avoid production here!!
• Protection against self-incrimination does NOT extend to regulatory production orders required by a system that serves a public purpose unrelated to criminal law enforcement

Question 5

Police Interrogation

Answer 5

1. Miranda Revolution: the regulation of custodial interrogations
   - Prior to Miranda, SCOTUS determined the admissibility of jailhouse confessions by assessing “voluntariness” under Due Process Clause  torture (beating, whipping) during an interrogation by state officers violated this standard b/c it offended principles of “justice” that were “fundamental”
   - Sleep deprivation over a 36-hour custodial interrogation was considered “inherently coercive” and violative of “due process.” Ashcraft v. Tennessee (1944)
   - Police conduct, rather than individual will, was the focus of the “voluntariness” analysis  BUT what is voluntary and what is not?
   - 3 ways for police interrogation to be regulated:
   - 1. Due process
   - 2. 6th Amendment
   - 3. 5th Amendment (Miranda)

Question 6

Watts v. Indiana (Due Process Case)

Answer 6

: Police took D from jail to police headquarters, questioned by officers for hours into early morning. Same persistent interrogation followed next day for many more hours into early morning hours. A “relay” of 6-8 officers questioned on and off for days. At 3am after having been under questioning since 6pm previous day, he made an incriminating statement.

• Clearly violated due process b/c he was under severe duress
• His statements were not voluntary b/c he was under SUSTAINED PRESSURE by the police - this was a calculated endeavor to secure a confession through the pressure of unrelenting interrogation!
• RELENTLESSNESS of such interrogation implies that it is better to answer than to persist in refusing to answer which is his constitutional right
• This was SO GRAVE AN ABUSE OF POWER as to offend due process!!!
• This confession was NOT THE PRODUCT OF FREE CHOICE!
• He agrees that if there is any physical violence, threats, inducements, torture etc. on the person then yeah, their answer is NOT freely given
• BUT can we really say that their answer is not freely given when none of that exists but only that they did not have an ATTORNEY PRESENT? → tough answer for us to conclude on!
• ***court has never held that an ARREST is the formal initiation of a crim prosecution, BUT the const. right to counsel only begins at the BEG OF A CRIM PROSECUTION as per 6th amend!

Question 7

Massiah v. US (1964) (6A Case)

Answer 7

Massiah suspected of being involved in drug smuggling ring, fed agents searched vessel an found five packages of cocaine. He ad Colson were arrested, arraigned, indicted, but Colson secretly agreed to cooperate w govt and wear a radio transmitter in order to get Massiah to make incriminating statements. Carried out convo in car, agent listened over radio, Massiah made incriminating statements, brought to jury.

6A right were VIOLATED!

he was denied basic protections under 6a when prosecution used his own incriminating words against him, which fed agents had deliberately elicited from him after he had been indicted and in the absence of counsel – stage btwn indictment and trial. [deliberate eliciting of incriminating statements by state agents post-indictment violated right to counsel]  created a bright line rule

Question 8

Escobedo v. Illinois (1964) (Super Narrow Holding)

Answer 8

Escobedo was arrested in connection with a murder and asked for a lawyer. He was not formally charged. Police refused to let the lawyer see Escobedo, and Escobedo asked to see his lawyer again during interrogation but police told him his lawyer did not want to see him. Escobedo made incriminating statements that were used to convict him.

: right to counsel applied btwn arrest and arraignment, not just to post-indictment or arraignment
Six conditions for when Escobdo applies – when the right to 6a rt to counsel applies pre-indictment:
1. Police focus on a particular suspect
2. Suspect in custody
3. Police interrogation to elicit incriminating statements
4. Suspect requests lawyer
5. Police denied lawyer
6. No warning of right to remain silent

This equals 6A violation and cannot use.

Question 9

Miranda v. Arizona (1966)

Answer 9

: prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the D unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.
PROCEDURE:
- STEP 1: if subject to interrogation, must first be informed in clear and unequivocal terms of right to remain silent. Awareness = threshold req for intelligent decision to exercise & overcoming inherent pressures of interrogation atmosphere.
- STEP 2: warning of right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. Makes aware of priv and consequence of foregoing it.
- STEP 3: must be clearly informed of right to consult w a lawyer and to have lawyer w him during interrogation under system for protecting privilege.
- STEP 4: if he is indigent, a lawyer will be appointed to represent him. [w/o, could possibly understand to mean only have right if can afford]
- STEP 5: if the individual indicates that he wishes questioning to cease or asks for a lawyer, questioning must stop. If indicates that he wants a lawyer, and questioning does not cease, heavy burden on govt to demonstrate that the D knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.

5a privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves
- w/o proper safeguards, the process of in person interrogation of persons suspected/accused contains inherently compelling pressures which work to undermine the individual’s will to restrain and to compel him to speak where he would not otherwise do so freely
o to combat pressures and permit full opp to exercise 5a privilege – accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honors

Question 10

Post-Miranda Prophylaxis

Answer 10

• Prior to ANY questioning of a suspect in CUSTODY*, the suspect MUST be informed of:
  o Right to remain silent;
  o That statements made may be used against the suspect;
  o Right to presence of attorney;
  o If suspect cannot afford an attorney, one will be appointed.
• If the suspect expresses right to remain silent or requests counsel, all questioning must cease.
  o Note: Miranda does not require furnishing of attorney absent request.
• State can show waiver if it meets a “heavy burden” – that D waived rights voluntarily, knowingly, and intelligently
  o The existence of a confession does not automatically equal waiver; lengthy interrogation is suspicious.
  o Waiver must be “voluntary,” which depends less on the will of the suspect and more on the conduct of the police. Connelly.
   Trickery, deception, and fraud indicative of coercion can vitiate potential waiver.
• Massiah (post-indictment questioning) remains good law under the 6th Amendment (to be fleshed out later).
  *No custody = Miranda 5th Amendment protections do not apply, but other protections could still apply

Effect of 3rd Pathway on the 1st Pathway:
- Miranda displaced the voluntariness test as primary constitutional limit on police interrogation
- But voluntariness matters in two ways:
o Wavier must be, among other things, voluntary
o Due process requires voluntariness cont to apply to confessions, in addt to Miranda & 6a right relied on in Massiah

Question 11

J.D.B. v. North Carolina (Juvenile Custody Case)

Answer 11

7th grader questioned about burglaries at his school. took him to closed door room, questioned him, never called his guardians, and he confessed. only after confessions was he made aware that he was free to leave.

Does age matter?

In this case it does. so long as a child’s age is known by the officer or objectively apparent to a reasonable officer, it is a factor to consider in the custody analysis; but it is not necessarily determinative and may not always be significant.

court holds that a child’s age properly informs the Miranda custody analysis b/c children will often feel bound to submit to police questioning when an adult in the same circumstance may otherwise feel free to leave

• SO LONG AS AGE OF CHILD WAS KNOWN TO OFFICER AT TIME OF QUESTIONING OR WOULD HAVE BEEN REASONABLY APPARENT TO A REASONABLE OFFICER - officers must include it in the custody analysis consistent w/ the objective nature of that test!
• Whether a suspect is IN CUSTODY = OBJECTIVE INJURY - police officers and courts must examine ALL OF THE CIRCUMSTANCES SURROUNDING THE INTERROGATION!
• This includes any circumstance that would affect how A REASONABLE PERSON IN THE SUSPECT’S POSITION WOULD HAVE PERCEIVED HIS/HER FREEDOM TO LEAVE

Question 12

Custody Analysis Post J.D.B

Answer 12

• Courts will consider ALL objective circumstances surrounding the interrogation
• Two part inquiry:
  o Would a reasonable person have felt free to leave?
   How was the individual summoned to the space? Arrested? Removed? Volunteered?
   Age (was the police officer aware of age or would a reasonable officer have been aware)
  o Was the environment “inherently coercive” (like the station house in Miranda?
   Where did Qing occur
   How was Qing conducting
   Did physical space suggest person could leave
   Was person told he/she could leave

Question 13

Custody: a Functional Approach

Answer 13

Custody:
o Questioning of suspect in his bedroom at 4am. Orozco
o Psychiatric Qing of capital Defendant. Estelle
o Station House Qing. Miranda
o. Questioning of juvenile suspect at school.

Not Custody:
o Voluntary trips to the police station by individuals. Mathiason; Beheler
o Grand jury witnesses. Mandujano
o Investigation focused on suspect, but suspect not arrested yet. Beckwith
o Roadside questions during vehicular stop. Berkemer (even if cop intends, but has not communicated, desire to arrest)
o Required probation meetings. Murphy
o Terry stops
 Note: this covers a lot of potentially incriminating statements

Question 14

Rhode Island v. Ennis (Interrogation Case)

Answer 14

officers having a conversation in car after arresting suspect. talked about how it would be sad if a kid found the gun they hadn’t recovered yet. Suspect led them to the gun so kids wouldn’t find it and he was charged.

this WAS NOT an interrogation. There WAS NO express questioning. nothing more than a dialogue. also NOT the functional equivalent of questioning. no reason for police to believe this would make the suspect talk.

• **functional equivalent = any words/actions on part of police that police should know are reasonably likely to elicit and incriminating response

– Miranda applies whenever a person in custody is subject to either express questioning or its functional equivalent (i.e., any words/actions by the police that the police should know are reasonably likely to elicit an incriminating response.)
* BUT NOT when the suspect is unaware they’re speaking to a police officer (i.e., the officer is undercover) and gives a voluntary statement. (IL v. Perkins)
- That’s b/c there’s no coercion/compulsion or “police-dominated atmosphere” when one is speaking freely w/ someone they don’t know to be a cop—they have no reason to think the person may have power over them like a cop does.

Question 15

Illinois v. Perkins (interrogation case) (Massiah does not help here)

Answer 15

– police investigating a murder. Respondent is being questioned in a cell w a fellow inmate and an undercover agent. Respondent made incriminating statements: undercover agent asked him if he had ever “done” anybody, after he suggested escape. Respondent said he had: described murder at length.

undercover agent posing as fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response. Statements here were voluntary.
- Court says that since he is unaware of who is asking questions, that the extra layer of interrogation compulsion is not present.
- Cannot feel compulsion when he does not know it could lead to incriminating statements that is emblematic of interrogation.
MIRANDA FORBIDS COERCION; NOT STRATEGIC DECEPTION

Question 16

Modes of Interrogation

Answer 16

• Express questioning to a suspect of a crime or “its functional equivalent.” Innis
• Police “words or actions that are reasonably likely to elicit an incriminating response from the suspect.”
  o Usually when police have a design or plan to achieve answers without asking questions, although Innis’ application suggests the form of the police statement can matter
  o If police knew of a fact related to the suspect, and play to it, that is evidence in favor of interrogation
  o Does not include undercover questioning, even if person is in custody. Perkins
  o Does not include field sobriety instructions or administrative “booking questions.” Muniz
• Takeaway: interrogation takes place when police should have known that their words or actions were reasonably likely to elicit an incriminating response

Corollary: Miranda is about regulating coercion, not deception.

Question 17

What counts as Miranda warning?

Answer 17

• If required Miranda warnings have not been given, Miranda waiver is CLEARLY IMPOSSIBLE - presumption of police coercion is irrebuttable - police MUST KNOW WHAT THE REQUIRED WARNINGS ARE: But what counts as a Miranda warning???
• Court has proven to be VERY flexible in determining when Miranda warnings were given  “the core of the right must be conveyed” aka warnings must be “sufficiently comprehensive and comprehensible” of the rights protected, see Florida v. Powell, (2010)

Court has proven this to be flexible
- CA v Prysock (1981) – court upheld a conviction where the warnings given the suspect did not expressly state that an attorney would be made available prior to the interrogation
- Duckworth v Eagan (1989) – Court held that a statement satisfied Miranda. The dissent argued that a suspect may construe the warning as providing a right to counsel before questioning only to those who can afford to pay for it. But the majority concluded that the “if and when” language accurately described Indiana’s procedure, and anticipated a suspect’s natural questioning concerning when counsel might actually be appointed
- Florida v Powell – D argued that the warning failed to specify that he had not only a right to consult w counsel before questioning, but also the right to have counsel present during questioning. Court held that the warnings given to Powell were constitutionally adequate.
o A reasonable suspect in a custodial setting who has just been read his rights, court believe, would not come to the counterintuitive conclusion (that atty would not be present during interrogation, but would have to exit and reenter interrogation room btwn each query) that he would be obligated, or allowed, to hop in and out of the holding area to seek atty advice
o Warning here communicated right to counsel carried forward to and thru interrogation: could seek atty advice before responding to “any of the officers questions” and “at any time during the interview”
o Warnings were not the clearest possible formulation of Miranda’s right to counsel advisement, but they were sufficiently comprehensive and comprehensible when given a commonsense reading
o Decline to declare a precise formula necessary to meet Miranda’s requirements

Question 18

Invocations

Answer 18

“If … he indicates in ANY MANNER and at ANY STATE of the process that he wishes to consult w/ any attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in ANY MANNER that he does not wish to be interrogated, police may not question him”

Question 19

Michigan v. Mosley (Invoked right to silence)

Answer 19

Mosely arrested in conn w robberies, received full Miranda warnings, was briefly interrogated, and then invoked RIGHT TO REMAIN SILENT, and interrogation ceased. Two hours later, another detective came in, gave full Miranda warnings, obtained a wavier, briefly interrogated on an unrelated murder, and secured incrim info.

: Rights were not violated. Police did not fail to honor decision to cut off Qing, they immediately ceased the first interrogation, resuming only after a significant period* of time w new set of warnings on unrelated offense
invoked right to silence. [* lower courts have held “significant time” can be as short as 5 minutes]

Standard: admissible of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his “right to cut off questioning” was “scrupulously honored.”
Summary:
 Questioning must cease upon invocation of right to silence
 But police can reinitiate a custodial interrogation after significant time* has passed, and w a fresh set of warnings
 Unclear whether re-initiation of discussion was allowed for an unrelated case, or could be return to previous conversation
 * lower courts have held “significant time” can be as short as 5 minutes

Question 20

Edwards v. Arizona

Answer 20

: Edwards charged w/ burglary & murder, arrested, given Miranda at station, said he understood and was willing to answer Qs - officers said they wanted a statement from him and gave him number of attorney, he called, immediately hung up, said he wanted an attorney before he made a deal, questioning ceased - next morning police came again and said he had to talk to them and gave him Miranda, he said he would make a statement so long as it was not recorded - police agreed and he implicated himself in the crime

Court agreed that Edwards never waived his right to counsel and silence when the police came back th next day.

– when an accused invokes his right to counsel, police cannot question them again until counsel is made available or the accused personally initiates further communication, exchanges or conversations w/ the police

• RULE: questioning must cease upon invocation of right to counsel, UNLESS SUSPECT REINITATES CONVO + police cannot reinitiate custodial interrogation at any time until counsel is present, + waiver cannot be shown by evidence of later response to police-initiated custodial interrogation, even if advised of his rights again

 Questioning must cease upon invocation of right to counsel, unless suspect reinitiates conversation
 Police cannot reinitiate custodial interrogation at any time until counsel is present
 Waiver cannot be shown by evidence of later responses to police-initiated custodial interrogation, even if advised of his rights again

• Edwards tells us that the RIGHT TO COUNSEL is a stronger right to invoke – it effectively cuts of questioning IN PERPETUIRY (subject to exceptions)

Question 21

Post Invocation Issues/ Re-iniation

Answer 21

After a suspect invoked the right to counsel, how does a suspect reinitiate, allowing questioning to continue?
Whether the susepct’s statement could reasonably have been interpreted by the officer as relating generally to the investigation, rather than just in response to routine police procedures. (Bradshaw)

How long does invocation of the right to counsel (under Edwards) prevent questioning?
After suspect has been out of custody for 14 days, police can reinitiate without violating Edwards. (Shatzer)
It is unclear whether an amount of time, alone, while the suspect remains in custody, is sufficient to allow police re-iniatition.

Bradshaw: After invoking, Bradshaw asked what was going to happen to him. Cop warned him about this, he did it anyway. Edwards NOT violated. Respondent initiated the convo in ordinary meaning of word, which was not a routine inquiry (water, phone, bathroom, etc) = desire on part of accused to open up a more generalized discussion relating to investigation. Here – his question evinced a willingness and desire to a generalized discussion about the investigation

Shatzer: Shatzer was interrogated Aug 7, 2003 about allegations of sexually abusing son. Was read Miranda rights, signed a waiver, but shortly after invoked right to atty. March 2, 2006 a diff detective obtained new info and went to prison to interrogate him again. He was Mirandized, signed waiver, and admitted. Match 7 he again was Mirandized, waived, and confessed. Court held Edwards was NOT VIOLATED; Edwards should not reach so far.
RULE: court creates 14 day period from invocation – time for suspect to get reacclimated to normal life, consult w friends and counsel, and shake off any residual coercive effects of his prior custody.

Question 22

Waivers

Answer 22

Need to show:
(1) Miranda given,
(2) understood by accused,
(3) voluntary, knowing, and intelligently relinquishment of rights
1. expressly waive
2. impliedly waiver through all circumstances [NC v Butler].
a. Ex: understanding rights + uncoerced statement
3. NOTE: a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact obtained [Colorado v Connelly – “heavy burden” on govt to prove is really preponderance of the evidence std]

THESHOLD MATTER: Police must first obtain a waiver of rights before they may proceed with a custodial interrogation
- Must be a voluntary, knowing, and intelligent relinquishment or abandonment of known right/privilege (Edwards)

• What happens when a suspect does NOT invoke his Miranda rights? → as a threshold matter, police must FIRST obtain a waiver of those rights before they proceed w/ a custodial interrogation
• A suspect who has not invoked his Miranda rights MAY have NOT waived those rights either - there is some space between Miranda invocations and Miranda WAIVERS!
• Failure to invoke does NOT = waiver, but failing to invoke in conjunction w/ other circumstances CAN = waiver
• Miranda waivers must be “voluntary,” “knowing,” and “intelligent” Edwards.
• The state can show waiver if it meets a “heavy burden”.
• (1) A valid waiver must be voluntary, knowing, and intelligent.
• Voluntary: free and deliberate choice; free of official physical/psychological coercion.
• Look to the will of the suspect and the conduct of the police.
• Lengthy interrogations are suspicious.
• Trickery, deception, and fraud may indicate coercion and spoil a potential waiver.
• Knowing and intelligent: understanding of the nature of the rights waived and the consequences of waiving them.
• Remember Edwards – must constitute a knowing and intelligent relinquishment/abandonment of a known right/privilege which depends on the facts/circumstances including the background/experience/conduct of thee accused.
• (2) Waiver must be obtained whether a suspect invokes Miranda rights or not.
• (3) Waiver can be express or implied by conduct and is assessed under all of the circumstances.
• A suspect who understands a Miranda warning and then makes an uncoerced statement has impliedly waived their rights to silence and counsel. (see Thompkins below)
• Practical effect: police can seek a waiver up until the moment of invocation.

Question 23

Moran v. Burbine (Waiver Case)

Answer 23

Dude committed crime. Sister got him a lawyer. he didnt know. in the evening police questioned him about the murder, gave Miranda many times and he signed documents saying he understood and did not want an attorney present. He eventually signed 3 written documents confessing to the murder

– police don’t have to tell a suspect that their attorney called and it has no bearing on their ability to provide voluntary and knowing/intelligent waiver. Events unknown to the suspect can have no bearing on their capacity to comprehend and knowingly relinquish a constitutional right

• Waiver = voluntary & made w/ a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it
• Waiver = totality of circumstances analysis

He validly waived his right to remain silent and to the presence of counsel. Cannot be harmed by what he does not know going on outside the room; he had all info needed to make a valid wavier.

• Police’s actions are irrelevant on the validity of his waiver – police state of mind is irrelevant!
• Although highly inappropriate - he was unaware of the police’s deception so it could not have POSSIBLY affected his decision to waiver his rights!
• Miranda itself does NOT require that police inform a suspect of an attorney’s efforts to reach him and if we were to hold that it did - this would be an inappropriate shift in the SUBTLE BALANCE struck in Miranda!

Question 24

Berghuis v. Thompkins

Answer 24

Thompkins interrogated for 3 hours over murder. advised of rights but never invoked rights. Thompkins eventually cracked when god was brought up.

a suspect who received and understood their Miranda warnings, and hasn’t invoked their rights, waives their right to remain silent by making an uncoerced statement to police.

• OVERALL → when a suspect has received and understood Miranda, and not invoked his Miranda rights, he has waived the right to remain silent by making an uncoerced statement to police.

Have to invoke UNAMBIGUOUSLY

Question 25

Summarizing 5th Amendment Waiver

Answer 25

A Valid Waiver must be voluntary, knowing and intelligent. Voluntary means free and deliberate choice (free of official physical or psychological coercion). Knowing and Intelligent means understanding the nature of the rights and consequences of relinquishment. Waiver must be obtained whether suspect invokes Miranda rights or not. Waivers can be expressed or implied by conduct and is assessed under all the circumstances, A suspect who understands Miranda warnings and then makes an uncoerced statement has impliedly waived the right to silence and counsel (Thompkins). Practical Effects: Police can seek waiver up until the moment of invocation. even absent waiver, statements made by suspect can impliedly waive the rights (assuming valid warnings, understanding, and no official coercion.

Question 26

NY. v. Quarles (Conseq. of Miranda Violation Case)

Answer 26

→ arrested in grocery store wearing an empty shoulder holster, officer asked D where gun was, D told him - THEN D given Miranda warnings - D charged and convicted of gun offense - court held that gun itself WAS ADMISSIBLE pursuant to a “public safety exception” to Miranda - **public safety exception only applies to guns**

Question 27

Dickerson v. US

Answer 27

Congress enacted 18 USC 3501 in response to Miranda, which essentially put down a rule that the admissibility of statements should turn only on wh they were voluntarily made. Issue: wh Miranda Court announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional directive Holding: Miranda was a constitutional decision of the court, cannot be overruled by Act of Congress, and decline to overturn Miranda. [evidence: has been applied to state courts (SCOTUS does not have supervisory power over st cts) + Miranda Ct invited leg action to protect constitutional right against self-incrimination + stare decisis] - Rejected 4A fruit of the poisonous tree doctrine under Wong Sun

Question 28

Oregon v. Elstad (Conseq, of Miranda Violation)

Answer 28

written confession obtained post-Miranda warnings was admissible even though suspect first confessed before the warnings. Court found admissible: “a careful and thorough administration of Miranda warnings serves to curve the condition that rendered the unwarned statement inadmissible.” [confession -> Miranda -> statement = cured inadmissibility]

Question 29

Missouri v. Seibert (Conseq, of Miranda Violation)

Answer 29

Seibert arrested for arson/murder; person died when son intentionally burnt down trailer w/ a person in it. Upon arrest, officer used a 2-phase interrogation, deliberately withheld Miranda, got her to confess, gave Miranda and reminded her of her confession that she had just given. - SECOND CONFESSION IS INADMISSIBLE - Police strategy of DELIBERATE WITHOLDING OF MIRANDA until after interrogating & drawing out a confession → object of question first is to render Miranda INEFFECTIVE by waiting for a particularly opportune moment to given them, AFTER suspect has already confessed 5 factors that bear on whether a mid-stream Miranda warning could be effective: (1) completeness and detail of the questions and answers in the first round of interrogation; (2) the overlapping content of the two statements; (3) the timing and setting of the first and second interrogations/statements; (4) the continuity of police personnel; and (5) the degree to which the interrogator’s questions treated the second round as continuous w/ the first. Kennedy Concurrence is controlling in this matter. J. Kennedy’s test: - Did the officers deliberately attempt to undermine the effect of Miranda warnings? * Yes (officer designed full-blown custodial interrogation): - (1) Did the officers take “curative measures”? (Siebert) *This requires a substantial break in time (Mosley – as little as 5 mins…) + a new Miranda warning, or additional statement that the first incriminating statement was likely inadmissible. - (2) Would a reasonable person in the suspect’s situation understand the import and effect of the Miranda warnings and waiver? * No (no custody, good faith mistake): - Did the officers obtain a valid waiver after providing the first Miranda warning? * Elstad allows statements that happen post-warning even if earlier statements happened in an uncoercive environment pre-warning.

Question 30

US v. Patane (Conseq. of Miranda Violation)

Answer 30

3. The “Physical Fruits” of an Unwarned Statement … Does FOPT Apply to Miranda? - U.S. v. Patane – although the physical fruits of an actually COERCED statement is excluded as “fruit of the poisonous tree” (Wang Son), this does not apply to the physical fruit of an UNWARNED statement. (note the diff… coerced v. unwarned) * A mere failure to give a Miranda warning does not, by itself, violate a suspect’s constitutional rights or even the Miranda rule—potential violations occur only upon the admission of unwarned statements at trial. * Miranda protects the right against self-incrimination, which is testimony against oneself. That testimony is excluded. But if it turns up physical evidence, the evidence is not excluded. → BUT Self-incrimination clause is NOT IMPLICATED by admission into evidence of physical fruit of a voluntary statement - therefore there is NO Justification for extending Miranda rule to this context  Exclusionary rule does not apply - Thus, the fruit-of-the-poisonous tree doctrine is inapplicable unless physical evidence is found as a result of involuntary, coerced statements - Miranda protections therefore do not extend to physical evidence found as a result of voluntary, unwarned statements - RULE: Post-arrest questioning of suspect w/ purpose to obtain physical evidence will not suppress the physical evidence at trial

Question 31

Remedies after Miranda Violation

Answer 31

-A failure to provide Miranda warnings can result in exclusion of statements, but not always -For statements: o Pre-warning statements relating to public safety or credibility (for impeachment purposes) can be admitted. Quarles; Harris; Jenkins o Post-warning confessions that follow pre-warning confessions (two-statement situations) are admissible if:  In situations where the pre-warning environment was not coercive or the officers acted in good faith, officer obtain a valid Miranda waiver After giving the Miranda warnings. Elstad  In situations were officers intentionally attempted to undermine Miranda by questioning pre-warning (e.g. coercive situations), the officers (1) take curative measures relating to the first statement; and * Substantial break in time + Miranda warning; OR * Statement that 1st statement was likely inadmissible  (2) reasonable person in the suspect’s situations would understand the Miranda protections and the effect of wavier. Seibert. -Non-testimonial physical evidence that is the fruit of a voluntary statement given pre-Miranda warnings is admissible, unless coerced. Patane.