Criminal Procedure Outline - Professor Fields 2021 - Campbell Law - Part 9

ii. Test for interrogation under Miranda:

1. Actual interrogation; or
2. Functional equivalent of questioning
   1. Words/actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect
      1. Focuses primarily upon the perceptions of the suspect, rather than police intent
   2. A practice that the police should know is reasonably likely to evoke an incriminating response form a suspect thus amounts to an interrogation

iii. Illinois v. Perkins: Miranda warnings are not required when the suspect is unaware he is speaking to a law enforcement officer and gives a voluntary statement

1. “The essential ingredients of a police-dominated atmosphere and compulsion are not present when an incarcerated person speaks freely to someone he believes to be a fellow inmate”

i. In custody invocation of the right to remain silent and waiver of the right: Berghuis v. Thompkins

1. For a suspect to invoke his right to remain silent, it must be explicit
2. For a suspect to waive his right to remain silent, it does not have to be explicit and may be implicit
   1. Davis: found right to counsel has to be made unambiguously
   2. Such a requirement results in an objective inquiry that avoids difficulties of proof and provides guidance to officers on how to proceed in the face of ambiguity
   3. Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity
   4. To invoke right to remain silent, suspect must unambiguously exert that right—sitting there silently is not enough to assert the right
3. Waiver of right to remain silent?
   1. Even if he didn’t invoke his right to remain silent, he still had to “knowingly and voluntarily” waive the right
   2. Test for waiver: voluntary, product of a free and deliberate choice rather than intimidation, coercion, deceptions and made with full awareness of the nature of the right and the consequences
   3. Implicit waiver of the right to remain silent is sufficient

ii. Not in custody invocation of the right to remain silent: Salinas v. TX

1. During its case in chief, the govt may utilize the suspect’s silence during questioning so long as it occurred during noncustodial police questioning and the suspect did not assert his right against self-incrimination
   1. Suspect needs to invoke his 5th am right to gain the protection of it
   2. General presumption: privilege against self-incrimination is an exception to the general rule that the govt has the right to everyone’s testimony. To protect that privilege, court held that a witness who “desires the protection of the privilege must claim it”
   3. With two exceptions:
      1. Being forced to testify against yourself in court
      2. Miranda (inherently coercive environment)
      3. Under Berghuis, the invocation of the right needs to be explicit
   4. Key point: in noncustodial questioning, suspect must explicitly invoke the 5th, w/o having been read Miranda, for the govt not to be able to use his silence in court

i. Invocation of the right: US v. Davis

ii. Re-approaching after invocation

1. Edwards v. AZ
2. Maryland v. Shatzer: Law enforcement may re-approach a suspect in custody after invoking the right to counsel when there has been a minimum of a 14-day break in custody between the 1st and 2nd attempts at interrogation
   1. Edwards held that a suspect may not be subjected to further interrogation by the authorities “until counsel has been made available to him unless he himself initiates further communication, exchanges, or conversations with the police”
   2. And wanst this made stronger in Roberson and minnick? Whats the key difference?
      1. None of those cases involved a break in custody
   3. Why does the break in custody matter?
      1. Time to go back to normal life, have a change of heart, seek advice, decide confession is smart
      2. Change of heart due to reflection, not badgering or inherent coerciveness
      3. Also, will still have miranda protection at second attempt
   4. How this actually works:
      1. Suspect placed in custody, advised of Miranda rights, invokes right to counsel
      2. Under Edwards, police cannot reinitiate w/o an attorney present while the suspect remains in custody
      3. However, if suspect leaves custody for 14 days or more, and then returns to custody and is again given mirdana rights, the police may attempt to question the suspect