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Criminal Procedure - Outline Part 27

By Collin B. Hardee

Download the PDF version of this outline

<< Part 26 | Part 28 >>

  1. Questions to ask:
    1. Is the suspect in CUSTODY?
      1. Custodial Interrogation: questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way
        1. Custodial interrogation is so inherently coercive that a confession cannot be voluntarily given absent protective safeguards (Miranda)
        2. Where an investigation is no longer an inquiry into an unsolved crime, but has begun to focus on a particular person (Escobedo)
      2. Custody Test → Would a reasonable person in the suspect’s position, based on the totality of the circumstances, understand his freedom to terminate questioning and leave?
        1. Berkemer Test → Whether a reasonable person in the suspect position (objective) would believe that his freedom of action/movement is curtailed to a degree associated with a formal arrest under the totality of the circumstances? Factors include:
          1. Location of suspect and police, e.g., in public vs. at police station;
          2. Duration of interaction;
          3. Statements made;
          4. Physical restraints;
          5. Release at the end of questioning?
        2. Bottomline → Whether the relevant environment/interaction presents inherently coercive pressures at issue in Miranda
      3. Undercover officer/Confidential Informant → an undercover law enforcement officer posing as a fellow inmate does not need to give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response; Miranda does not forbid mere strategic deception by taking advantage of a suspect’s misplaced trust (Perkins)
        1. Caveat: a confession to a paid informant masquerading as an organized crime figure in exchange for the truth is involuntary under the Bustamonte Totality of the Circumstances test (Fulminante)
      4. Custody in Prison Setting → the “inherently compelling pressures” of custodial interrogation ends when the prisoner returns to his normal prison life, so a release back into general prison population constitutes a break in Miranda custody (Shatzer)
        1. General Population → Not in custody
        2. Interrogation room → In custody when removed from general population and put in police interrogation
      5. Age of Suspect → Would a reasonable child feel free to leave? (JDB)
      6. Traffic Stops → Considered a 4A seizure, but NOT in custody for purposes of Miranda
    2. Is the suspect being INTERROGATED?
      1. Innis Test → The Miranda safeguards come into play whenever a person in custody is subjected to:
        1. either express questioning or its functional equivalent; and
        2. any words or actions on the part of the officer (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
          1. Focus is on the suspect’s perception; police intent is relevant unless it is made explicit
          2. Unless a police officer reasonably should know that their comments/actions will elicit an incriminating response from suspect, comments made between police officers in the presence of a suspect do not constitute interrogation for Miranda purposes (Innis)
            1. Officers cannot play on a suspect’s unusual susceptibility
      2. Routine Booking Exception: if part of routine booking, Miranda is not applicable to questions seeking:
        1. Name; address; age; date of birth; weight; height
    3. Is the interrogation being performed by the POLICE?
      1. Miranda warning must be given when the defendant KNOWS/BELIEVES he is speaking with a state actor
      2. Miranda warnings are not required when the suspect is unaware he is speaking to a law enforcement officer and gives a voluntary statement
  2. Miranda Exceptions
    1. Impeachment Purposes
    2. Public Safety
      1. Rule → The police may question a suspect without first reading a suspect his Miranda warnings, and the suspect’s statements may be admitted at trial, where the exigency of a situation requires that public safety take precedence over a suspect’s Fifth Amendment privilege.
      2. Test:
        1. The officer is reasonably prompted (an objectively reasonably officer would find that the reason of asking question was for a purpose more than merely to obtain evidence useful in convicting the suspect)
        2. to protect the:
          1. Officer safety OR
          2. Public safety
        3. from immediate harm
  3. Miranda & Exclusionary Rule
    1. When a Miranda violation occurs, only the confessions/unwarned statement will be inadmissible
    2. Physical fruit/evidence of Miranda is NOT suppressed (Patane)
    3. No fruit of poisonous tree for Miranda (Quarles)
    4. HOWEVER: a “pure” 5th Amendment violation results in suppression of evidence
      1. “Pure 5th”: violation of “the constitutional privilege against compulsory self-incrimination in its most pristine form,” e.g., forcing suspect to speak, gun to head
    5. Statements depend on officer’s intent (Elstad/Seibert)
      1. If Miranda violation was intentional then statements as a result of violation are excluded
        1. Two-Step Interrogation Technique is unconstitutional (Seibert) - “These circumstance [below] must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk:
          1. The 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 the second round;
          4. The continuity of police personnel; and
          5. The degree to which the interrogator’s questions treated the second round as continuous with the first; or
          6. A police strategy adapted to undermine the Miranda warnings
      2. If Miranda violation not intentional (good faith) then statements as a result of the violation are not excluded (Elstad)

Elstad General Outcome:

  1. the second confession will NOT be deemed tainted as long as it was “voluntarily made,” and the Court will presume that the second confession is indeed voluntary if made after warnings, even though that confession followed an earlier unwarned confession
  2. Second confession is more likely to be deemed voluntarily made if the underlying circumstances do not make the second confession a mere continuation of the first (i.e., the second is more likely to be found voluntary if the two were meaningfully separated by time, place, or interrogator, or if it was made clear to the suspect that the first, unwarned, confession would not be admissible)
  3. The second confession is less likely to be deemed tainted if the failure to warn prior to the first confession was the result of an inadvertent mistake by the police?
  4. Where the place follow an intentional “two-step” practice of eliciting an unwarned confession, then immediately giving a warning under circumstances that lead the suspect to believe that even the already-made confession can be used against him (so that the suspect sees no reason not to repeat the confession after the warning), the second confession will probably be deemed involuntary and tainted (Missouri v. Seibert)

The police have no duty to warn a suspect of prior statement’s inadmissibility


  1. Was suspect in police custody?
  2. Was a confession made before or after a Miranda warning was given?
  3. Was a second confession made?
  4. Was the second confession knowingly and voluntarily made? (Second confession presumed voluntary if made after Miranda warning)
    • Were the two confessions separated by:
      • Time?
      • Place?
      • Interrogator?
    • Was it made clear to the suspect that the first, unwarned, confession would not be admissible?
    • Was the failure to warn prior to first confession the result of an inadvertent mistake by police?

Rule: A second confession is not tainted by a first, Miranda-less confession if the second confession was knowingly and voluntarily made, i.e., it would not be invalidated merely because there was a prior, illegally-obtained confession having the same substance as the second

d. Right to Remain Silent (Miranda)

  1. Invocation of the right to remain silent in a Miranda context must be explicit and unambiguous
    1. Until the suspect clearly and explicit invokes right, police may continue interrogation until clear invocation
  2. Waiver – may be explicit or implied from words and actions
    1. Implied Waiver = Silence + Understand Rights + Course of Conduct (Butler)
    2. Where a defendant does not invoke his right to remain silent after fully understanding his Miranda rights, he implicitly waives his Miranda rights by making a voluntary statement to police (Berghuis v. Thompkins)
      1. Implied Waiver by Silence Steps:
        1. Were Miranda rights given to suspect?
        2. Did suspect acknowledge he understood his rights?
        3. Did suspect answer any questions after both these steps?
          1. If yes to all, statement is admissible
      2. MERE SILENCE IS NOT ENOUGH to invoke – suspect must invoke his 5A right to gain its protection, i.e., it is NOT automatically applied
      3. “A defendant’s subsequent willingness to answer questions after acknowledging his Miranda rights is sufficient to constitute an implied waiver.”
    3. Presumption = non-waiver
    4. Police do NOT have to ask clarifying questions (but should)
    5. Unknown Representation → a waiver of Miranda rights is still valid even if suspect does not know he already has an attorney b/c what happens without the suspect’s knowledge has no impact on the voluntariness of his waiver
      1. Law enforcement has NO obligation to tell a suspect everything going on; they merely have to read the suspect his Miranda rights
  3. Once suspect invokes right to remain silent → police must scrupulously honor suspect’s choice to remain silent, but may return a few hours later to continue questioning (less stringent that Right to Counsel) (Mosley)

e. Right to Counsel (5th)

  1. Request for an attorney must be clear and unambiguous – invocation cannot be implied (Berghuis)
    1. Test: Would a reasonable officer know the statement was a request for an attorney?
  2. Waiver may be explicit or implied (same as right to remain silent)
  3. Once suspect invokes right to counsel → then the police may not question him again until he has consulted with an attorney unless:
    1. an attorney is present (Miranda 5th A right to counsel during custodial interrogation); OR
    2. Δ initiated the conversation—would be a waiver; OR (Edwards)
    3. at least 14 days have passed since the last attempt and the suspect is re-Mirandized (Shatzer)
      1. Any questions continued after explicit invocation will be inadmissible
  4. 5th Amendment violation → Can only occur while in custody
5th Amendment Exclusionary Rule

Exclusionary Rule

  • Applies to Miranda violations (made explicit in Miranda v. Arizona)
  • Applies to violations of DP Clause
  • Applies to violation of self-incrimination clause of 5th A

Fruit of Poisonous Tree Doctrine

  • Applies to violations of Due Process Clause (both physical evidence and statements)
  • Applies to violations of self-incrimination clause of 5th A (both physical evidence and statements)
  • Generally, does not apply to Miranda violations
  • Does not apply to physical fruits (US v. Patane)
  • Does not apply to statement fruits (Elstad)
  • But does apply to two-step interrogation techniques when performed as a deliberate attempt to bypass Miranda (Missouri v. Seibert)
Right to Counsel—What We KNOW NOW

6th Amendment

  • Right to counsel for any crime involving actual confinement, both in state and federal court (Gideon, AL v. Shelton)
  • Right to counsel attaches at initial appearance (Rothgery v. Gillespie) and ends after first level of appeal (Ross v. Moffit)
  • Law enforcement can’t question you without an attorney or waiver after indictment and retention of counsel (Massiah v. US)
  • Law enforcement can’t question you without an attorney pre-indictment after you affirmatively request to speak to an attorney (Escobedo v. IL)

5th Amendment

  • Custodial interrogation is so inherently coercive, suspects must be told they have a right to counsel prior to any interrogation or confession being used against them (if they knowingly waive the right and answer (Miranda).
  • When in custody, invocation of right to counsel must be explicit (Davis)
  • When in custody, when right to counsel is invoked, police cannot “try again” (Edwards v. Arizona) unless a 14 day or more break in custody occurs (Shatzer)

f. Right to Assistance of Counsel (6th)

  1. When does 6th Amendment attach? → at the commencement of the adversarial proceedings; when the defendant is indicted and arraigned, i.e., at initial appearance and ends after first level appeal
    1. Indictment: when defendant is formally charged with a criminal offense
    2. Arraignment: when defendant is officially called before the court, informed of the offenses against him, and asked to enter a plea of guilty, not guilty, etc.
  2. Once Attached: Allowed to approach and ask Q’s, UNLESS Miranda Edwards “Wall” is up already
    1. If not advised of MR’s yet, once in custodial interrogation, must be read MW’s and must obtain a waiver in order to continue
    2. Law enforcement may initiate interrogation of a suspect in custody after the court has appointed counsel to the suspect so long as it is consistent with Edwards-Shatzer (Montejo v. Louisiana)
      1. 6A right to counsel does not preclude police from attempting to interrogate someone in custody under Miranda
  3. Invocation: Automatically invoked at commencement of adversarial process, unless Miranda waiver
    1. Police allowed to approach once 6A attached unless Edwards “Wall” is UP
  4. Law enforcement CANNOT question you after indictment and retention of counsel unless:
    1. Waiver; or
    2. Attorney present
  5. After affirmatively requesting to speak to an attorney, LE cannot question you without an attorney
  6. 6th Amendment Violation
    1. Must be violated by a state actor, not a private actor
    2. Violation when federal agents deliberately elicit (Deliberate Elicitation) incriminating statements after indictment from defendant in the absence of his retained counsel (Massiah)
      1. This includes use of UNDERCOVER or INFORMANT
      2. Focuses on SUBJECTIVE intent of officers
    3. Listening? → Police & CI must take some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. (Kuhlmann)

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