Saltzburg CHAPTER THREE.

SELF-INCRIMINATION AND CONFESSIONS

NOTE: THE PURPOSE OF THIS OUTLINE IS TO ORGANIZE THE CASES SO THAT ONE CAN
QUICKLY UNDERSTAND THE RELEVANCE OF EACH CASE TO THE COURSE. NO ATTEMPT IS MADE
IN THIS OVERVIEW TO ADDRESS EVERY CONCEPT THAT MUST BE STUDIED. BE SURE TO READ
THE ENTIRE CASEBOOK AND/OR OTHER MATERIALS TO GAIN A FULL UNDERSTANDING OF ALL
CONCEPTS.

I. The Privilege Against Compelled Self-Incrimination.

A. The Policies of the Privilege. 1. Throughout history,
the Supreme Court has been unwilling to re-examine or consider constitutional
change to the Fifth Amendment privilege against self-incrimination. However, the
court has freely extended its application, even though those most often
benefitting are the criminals. The court has rejected suggestions for change
despite the occasional unfortunate results stemming from its application. The
Need to Examine Policies.
2. The following are some of the justifications espoused for the
privilege, followed by the corresponding criticism.
a. It protects the innocent. The Supreme Court has
renounced this rationale. There is no proof the innocent are protected, and the
jury may, in fact, look unfavorably on a defendant who does not take the stand
to testify.
b. It protects the cruel trilemma [three choices] of self-
accusation, perjury or contempt. This problem exists for any witness, not just
those self-incrimination witnesses. It is not cruel to make a witness have the
option of perjuring himself.
c. It deters perjury. Perjury prevails in spite of the
privilege.
d. It protects against unreliable coerced statements. There
is no need to exclude compelled evidence that can be corroborated. The testimony
by the defense will usually be cast in a favorable light, will not always be
self-deprecatory, and is generally more reliable than statements obtained by
police interrogation.
e. It promotes an accusatorial system of justice rather
than an inquisitorial system. This statement is merely a restatement of the
privilege itself.
f. It deters improper police practices that result in
eliciting statements by inhumane treatment and abuses. The privilege is
unnecessary to guard against torture, since protection is afforded by the due
process clause. Court testimony is protected by the judicial process.
g. It contributes to a fair "state-individual" balance by
leaving a person alone until good cause exists to disturb him, and requiring the
government to have the burden of proof against the person. Probable cause
requirements provide adequate protection against unwarranted governmental
disturbance. There is no basis for assuming that the government has the power to
extract evidence of guilt from the people. There are different rules and burdens
of proof between the state and a defendant during a criminal trial. The
privilege is not the best method to achieve a fair balance between state and
individual. Since the government can compel certain physical evidence from the
defendant that is not protected by the privilege, testimony should not be
protected from compulsion.
h. It preserves official morality which would suffer if
self disclosure were a source of proof. If this rationale were extended to the
station house, most police questioning would not be allowed. It is debatable
whether the privilege developed historically from the English judicial system
becoming morally unacceptable.
i. It is justified based upon respect for an individual's
privacy. If this were true, it would be inconsistent with immunity statutes that
require even private testimony, civil suits that require far more private
information, and the Fourth Amendment that protects privacy only with respect to
unreasonable intrusions. Privacy is only a rationale that should be used for
crimes involving belief or association.
j. It is justified based upon the First Amendment
protection against government intrusion concerning political and religious
beliefs. Any such problems are dealt with by applying the First Amendment. The
supposed justification would apply only to free speech, religion or association,
not the typical criminal investigations and prosecution.A Chart to Assist
Analysis.
B. Scope of the Privilege. 1. Proceedings in Which the
Privilege Applies.
a. The privilege may be asserted in criminal proceedings,
as well as in any proceeding where the statements might incriminate one in
future criminal proceedings. Lefkowitz v. Turley.
(1) It may be asserted in non-criminal proceedings
such as a forfeiture proceeding and grand jury criminal investigations, since
these proceedings may be characterized as criminal in nature. Applicability to
Non-Criminal Cases: Boyd v. United States and Counselman v. Hitchcock.
(2) It may not be asserted in matters not criminal in
nature, such as probation revocation or private retribution. Criminal Cases.
(a) A civil penalty statute was held not quasi-
criminal. Civil Penalties: United States v. L.O. Ward.
(b) A proceeding to determine whether one should
be committed for mental treatment was held not criminal in nature. Detention for
"Treatment".
(3) It has been asserted in bankruptcy proceedings and
those involving investigations into wrongdoing by public workers, prisoners, or
lawyers. Invoking the Privilege in a Civil Case to Prevent Use of Statements in
a Criminal Case.
(4) It may not be asserted because of concern of
incrimination in a foreign country. Thus, testimony in a deportation proceeding
was not subject to the privilege where the testimony might be used in
prosecution in foreign country. United States v. Balsys.
(a) If the United States were to cooperate with
a foreign nation resulting in the matter also becoming a domestic prosecution, a
very limited "cooperation" exception to the privilege's inapplicability to
foreign prosecutions may exist.
(b) However, if it is merely a "what if"
scenario rather than a true situation of international cooperation prosecution,
the application of the privilege will be rejected. Cooperating Governments.
C. What Is Compulsion? 1. Contempt. a.
Holding a person in contempt of court for not testifying is the classic
form of compulsion and is prohibited. If it were not prohibited, the witness
would be presented with the choice of remaining silent and face imprisonment,
tell the truth and face imprisonment, or tell a lie and face imprisonment for
perjury. This is a cruel trilemma. Use of the Contempt Power.
2. Other State-Imposed Sanctions. a. A state
may not compel testimony by use of economic coercion, such as threatening its
employees or agents with loss of employment or contracts in a non-criminal
proceeding, where the testimony could be used in subsequent criminal
prosecutions. Lelkowitz v. Titrley.
 b. A state may not compel testimony during a bar
investigation matter if the statements could be used in subsequent criminal
prosecution. Threat of Disbarment as Compulsion.
c. The government does not "compel" testimony by asking
questions on a financial assistance application form even though the answers
could be used against the applicant in subsequent criminal proceedings.
Conditioning Government Benefits on Self-Incrimination: Selective Service System
v. Minnesota Public Interest Research Group.
d. A benefit-penalty distinction arises when a defendant is
required to provide incriminating information in order to obtain a reduction in
a jail or prison sentence. The option for a reduction in a sentence is not a
penalty in the same sense as a loss or reduction from the status quo, such as
loss of employment or disbarment. There is no more compulsion in a sentence
reduction situation than in a plea bargain. However, if the defendant was given
a greater sentence for not cooperating, this would constitute compulsion. United
States v. Cruz. The Benefit-Penalty Distinction.
e. Giving a defendant the option of speaking at a clemency
hearing in an attempt to improve his chance of clemency or remain silent does
not compel testimony, and thus does not violate the privilege. Self-
Incrimination and Clemency Proceedings: Ohio Adult Parole Authority v. Woodard.
3. Commenting on the Invocation of the Privilege.
a. Neither the court nor counsel may inform the jury that
the defendant elected not to testify at trial after invoking the privilege. To
do so would be punishment tantamount to compulsion and in violation of the
privilege. Griffin v. California.
(1) If defendant requests that the jury be instructed
not to draw an adverse inference from his not testifying, the instruction must
be given. Carter v. Kentucky.
(2) The privilege is not violated if the judge, over
the objection of the defendant, instructs the jury not to draw an adverse
inference from the defendant's failure to testify, since it is not compulsion.
Lakeside v. Oregon.
b. However, a prosecutor may respond in closing argument to
the defense counsel's argument that defendant had not been permitted to explain
his side of a story by informing the jury that the defendant did have an
opportunity to testify. U.S. v. Robinson. The Griffin Rule.
c. A prosecutor may, in argument concerning the totality of
the evidence presented, state that the People's evidence was "uncontradicted",
where the defendant is not the only person who could rebut the prosecution's
case. Indirect References to the Defendant's Failure to Testify.
d. The No-Adverse-Inference Rule
(1) This rule prohibits drawing adverse inferences
from the defendant's invoking the right to remain silent and refusing to testify
in criminal trials. This rule applies to sentencing hearings, but only with
respect to the underlying facts of the crime that form the basis of the
sentencing. For example, if such an inference were used at the sentencing
hearing to determine the quantity of drugs involved in the crime, this would
affect the amount of prison time to be imposed; this would therefore violate the
privilege. Mitchell v. United States. Adverse Inferences at Sentencing: Mitchell
v. United States.
(2) The No-Adverse-Inference Rule does not apply to
civil proceedings. Thus, adverse inferences may be drawn from the refusal to
testify in response to evidence offered against a person. Adverse Inferences
Drawn in Civil Cases.
(3) There are no clear cut rules regarding whether the
No-Adverse-Inference Rule applies to non-party witnesses. Detective Fuhrman, in
the O.J. Simpson criminal case, was able to prevent an instruction from being
read to the jury that would have allowed the jury to draw a negative inference
from his invoking the privilege. However, the decision was based upon the
interpretation of a particular state statute. Adverse Inferences Against Non-
Parties.
4. Compulsion and The "Exculpatory No" Doctrine.
a. The "Exculpatory No" doctrine is a defense to making
false statements to government officials which provides that making a simple
denial of guilt to government officials does not violate the law. But, the
Supreme Court has rejected this defense and has held that a federal statute
prohibiting false statements was not unconstitutional under the Fifth Amendment
privilege against self-incrimination since the defendant was not compelled to
deny criminal responsibility and had the option to remain silent. Brogan v.
United States.
D. To Whom Does the Privilege Belong?
1. The privilege against self-incrimination is personal, and
belongs only to the person who is himself incriminated by his own testimony.
Thus, it does not protect an individual whose testimony will incriminate
another. Fisher v. United States.
2. The privilege against self-incrimination does not apply to
partnerships or corporations, even if wholly owned and operated by one person.
However, the privilege does apply to a sole proprietorship. Note on the
Collective Entity Rule.
E. What Is Protected.
1. Non-testimonial Evidence.
a. Only compelled testimony is protected by the privilege.
Thus, real or physical evidence is generally not protected.
(1) The forced extraction of blood is not compelled
testimony subject to the privilege. Schmerber v. California.
(2) Participating in a police line-up or obtaining
handwriting or voice samples does not violate the privilege. Note on Testimonial
vs Non-Testimonial Evidence.
b. The test for determining whether or not evidence is
testimonial or non-testimonial is to ask if the witness, in disclosing the
evidence, faces the cruel trilemma, i.e., choice of truth, falsity or silence.
Thus, evidence that a drunk person slurred his speech is not testimonial, but
answering a question about the date of his sixth birthday causes the person to
confront the trilemma and is testimonial. Testimonial Evidence and the Cruel
Trilemma: Pennsylvania v. Muniz.
c. Not all oral statements are testimonials. The
communication must be an express or implied assertion of a fact that is true or
false. Compelling a person's signature on a bank consent form authorizing the
release of records is not testimonial since it does not assert that the records
do or do not exist. Express or Implied Assertions of Fact: Doe v. United States.
d. The privilege applies to statements made by a defendant
to a psychiatrist who will testify at the defendant's sentencing hearing, since
the doctor bases a portion of his opinion testimony on the defendant's
statements. Testimony at trial concerning a defendant's demeanor when being
questioned by police is admissible as a non-testimonial communication.
Psychological Evaluations.
e. The refusal to supply physical evidence of a non-
testimonial nature, such as blood for alcohol analysis, may be used as evidence
at trial, as well as allowing the drawing of an adverse inference therefrom.
Drawing an Adverse Inference as to Non-Testimonial Evidence.
2. Documents.
a. Compelling the production of documents does not
constitute testimonial self-incrimination protected by privilege. Fisher v.
United States.
 (1) The privilege does not protect the content of non-
private documents that are prepared voluntarily, since the government has not
compelled a person to make incriminating records. Application of the Fisher
Analysis: United States v. Doe and the Act of Production.
(2) It is not certain whether or not the privilege
will be applied when the content of private documents are compelled. Private
Papers.
b. The act of production of documents, independent from
their contents, is a compelled testimonial act when it can be shown that the
mere existence, custody or control, or authenticity is incriminating.
(1) For example, the mere existence of an inordinate
number of documents, or the mere existence of a tax return to prove income, may
be incriminating. In rare situations, custody or control of documents may be
incriminating where, for example, it creates an inference of affiliation with
another person or business that itself tends to incriminate. The authenticity of
documents may be incriminating if the defendant is the only means of
authenticating the documents.
(2) Nonetheless, even in the limited cases where the
act of production is incriminating, the privilege will not apply if the
existence, control and authentication are a foregone conclusion, e.g., there is
substantial independent evidence of the existence, control and authentication.
When is the Act of Production Incriminating?
c. The "Collective Entity" Rule prevents assertion of the
privilege by an agent compelled to produce a business entity's documents that
incriminate the agent. The documents are held by the agent in a representative
rather than a personal capacity. Production of Corporate Documents: Braswell v.
United States.
d. A corporate agent may not be compelled to give oral
testimony as to the location of corporate records where such testimony could
incriminate the agent. The Difference Between a Corporate Agent's Compelled Oral
Testimony and Compelled Document Production.
e. The act of producing a person in response to a court
order is not protected by the privilege since the custodian of the person is
acting in the capacity of custodial duties pursuant to the court order. Thus,
the parent of a missing child served with an order to produce the child could
not assert the privilege to avoid producing the child. This was so because the
court had previously taken the child away from the parent and the subsequent
return of the child was under conditions imposed by a protective order.
Production of a Person in Response to a Court Order: Baltimore City Dept. of
Social Services v. Bouknight.
3. Required Records Exception.
a. The "required records" exception provides that documents
are not protected from production, even if not voluntarily prepared, if the
government requires the documents to be kept for a legitimate administrative
purpose. As long as the records are for administrative purposes, and are
unrelated to suspected criminal activity, they are not protected. Thus, ordinary
business records which the government requires be kept are not protected from
production by the privilege and the content of the records may be used against a
person in a criminal prosecution. Shapiro v. United States. Required Records.
b. The required records exception has limitations. The
records must be of a kind customarily kept by the individual, and be of a public
nature. Also, the production request must not be directed to a selective group
inherently suspect of criminal activities. Marchetti v. U.S.; Haynes v. U.S.
Limitations on the Exception.
(1) A law requiring motorists to leave their names at
the scene of an accident, is not subject to the privilege even if the
information is used in subsequent criminal proceedings. The statute was
essentially regulatory and non-criminal, and it did not target a particular
group suspected of criminal activity. Compelled Reporting of an Accident:
California v. Byers.
c. If the statute is directed to the public in general, the
records exception permits the production of documents. If the statute targets a
specific group inherently suspect of criminal activity and it involves an area
permeated with criminal statutes, the records exception is not available and the
documents cannot be compelled. Relationship Between Byers and Marchetti-Haynes.
(1) There are no clear-cut rules to determine whether
a statute targets a inherently suspect group. Consideration must be given to the
purpose of the statute and whether a non-criminal purpose can be found. Is the
Target Group Inherently Suspect?
F. Procedural Aspects of Self-Incrimination Claims.
1. When a witness in the middle of testifying invokes the
privilege against self-incrimination, the judge must determine whether
exercising the privilege is proper. Without inquiring into the refused
testimony, the judge must make the decision whether the information might
incriminate the witness in the future. Thus, if there is absolutely no
possibility of future prosecution, e.g., pardon issued, double jeopardy or
immunity granted, the privilege may not be invoked. If, however, the testimony
directly supports a conviction, or furnishes a link in the chain of evidence
needed for conviction, the privilege will apply. Determining the Risk of
Incrimination.
2. Immunity.
a. The privilege does not apply if a person has been
granted immunity from criminal prosecution. The person can therefore be
compelled to testify.
(1) "Transactional Immunity" is a broad guarantee
against future criminal prosecutions for any activity mentioned in the immunized
testimony.
(2) "Use and Derivative Use Immunity" is a limited
form of immunity ensuring that the testimony and evidence derived therefrom will
not be used in future criminal prosecutions.
(3) A person may however be prosecuted for perjury,
giving a false statement or otherwise failing to comply with an immunity order.
Immunity.
b. Prosecutors need only grant Use and Derivative Use
Immunity to compel one to testify. The Constitutionality of Use Immunity:
Kastigar v. United States.
c. To prevent the use of the fruits of immunized testimony
from being used in a later prosecution, the "Chinese Wall" approach is used so
that the same prosecutor who obtained the immunized testimony may not prosecute
the subsequent case against the witness. Proving That Immunized Testimony Was
Not Used.
d. Witnesses' exposure to the defendant's prior immunized
testimony results in the improper use of the immunized testimony at trial.
Tainted Witnesses: United States v. North.
e. Use of immunized testimony other than at trial may be
proper. Such use has been upheld for non-evidentiary purposes as in trial
strategy, deciding whether to indict or accept a plea bargain. Non-Evidentiary
Use of Immunized Testimony.
f. Independent sources or inevitable discovery of the
criminal activity may allow the use of immunized testimony. Independent Source,
Inevitable Discovery.
g. If the immunized witness lies, the evidence of lying may
be used in subsequent criminal proceeding for perjury, false statements or
obstruction of justice. Impeachment, Perjury.
 h. A witness who has testified in one proceeding after
grant of immunity, may invoke the privilege at a subsequent proceeding involving
the same immunized statement. Subsequent Statements.
i. Unless immunity is granted pursuant to a formal request,
a witness may invoke the privilege. Informal Immunity.
3. Waiver of the Privilege. a. A witness who
takes the stand to testify waives the privilege with respect to any questions on
cross-examination within the scope of direct examination. Determining the Scope
of a Waiver.
b. A witness may not pick and choose what aspects of a
subject to testify about and what aspects to assert the privilege. However, a
defendant does not waive the privilege with respect to refusing to testify at a
sentencing hearing by pleading guilty and admitting to "some of" the criminal
conduct. A narrow inquiry at the plea colloquy does not result in a waiver of
the privilege. Had the testimony been made during the trial, a waiver would have
occurred. The Fifth Amendment is applicable at a sentencing hearing. Waiver of
the Privilege by Pleading Guilty? Mitchell v. United States.
c. Where a defendant requests a psychiatric evaluation for
use as a defense, he has waived the privilege and the prosecution may use
information from the reports of examination as rebuttable evidence. Psychiatric
Defenses.
d. If a defendant answers a question without asserting the
privilege, the privilege is deemed waived. Failure to Invoke the Privilege.
II. Confessions and Due Process. A. When the issue of the admissibility of
confessions arises, three constitutional provisions must be considered:
1, The due process clauses of the Fifth and Fourteenth
Amendments;
2. The right to counsel clause of the Sixth Amendment; and
3. The privilege against self-incrimination of the Fifth
Amendment. Introduction.
B. Application of the Due Process Clause to Confessions.
1. A confession must be voluntary.
a. Obtaining a confession by torture makes it involuntary
and a violation of the due process clause. The Involuntariness Test: Brown v.
Mississippi.
b. In determining whether or not a confession is
involuntary, the personal characteristics of the accused should be examined,
such as youthfulness, educational background, and mental impairment or
deficiency.
(1) Physical deprivation or mistreatment makes a
confession involuntary. Examples include severe brutality, and denial of food or
sleep.
(2) Confessions have been upheld where food and
cigarettes were provided during the questioning. Psychological mistreatment may
also cause the confession to be involuntary. Examples include denying the
accused the aid of family, friends or counsel, i.e., incommunicado confinement.
(3) Trickery, sustained interrogation, threat of mob
violence, or rewards for confessing have all resulted in inadmissible
confessions.
(4) Consideration should also be given to whether or
not the accused has been informed of his right to counsel and right to remain
silent. Circumstances Relevant to Involuntariness.
c. It became apparent from the case law that "voluntary"
was not so easily defined. Whether a confession was voluntary considering the
totality of the circumstances was no help to law enforcement with respect to
permissible interrogations. Whether a confession was voluntary was determined on
a case-by-case basis, and the Supreme Court clearly could not review all
confession cases that arose throughout the nation. Criticism of the
Involuntariness Test.
d. The difficulty in defining the word "voluntary" resulted
in the Court eventually applying other constitutional amendments to the issue of
confessions.
(1) The denial of a defendant's repeated requests for
counsel during police interrogation and following indictment caused certain
Supreme Court justices in concurring opinions to argue that the defendant's
right to counsel was denied. Increasing Emphasis on Assistance of Counsel: Spano
v. New York.
(2) Thus, Spano v. New York paved the way for the
court to consider the application of other constitutional limitations on
obtaining confessions. The Importance of Spano.
e. The voluntariness test should not be abandoned. It may
be the only basis to challenge a confession, if the confession was obtained
before indictment, because the Sixth Amendment right to counsel does not apply
until the suspect is formally charged.
(1) Miranda warnings pursuant to the Fifth Amendment
apply only to custodial interrogations, and the right can be waived.
(2) Also, because the violation of Miranda is not a
violation of the Constitution, confessions obtained without Miranada warnings
can be used for impeachment, the fruits of the confession are admissible, and
the confession can be admitted if obtained under emergency circumstances. The
Continuing Relevance of Due Process Protection.
f. Rarely these days do the courts find that a confession
was made involuntarily, even under seemingly hostile circumstances. Examples of
cases upholding confessions include: defendant with low I.Q. and psychological
problems, was promised treatment and confessed after seven hours of
interrogation; wounded defendant interrogated by police with guns drawn; low
I.Q. and functioning at level of 11-year old, without food or sleep for 25
hours; defendant handcuffed and suffering from heroin withdrawal. Modern Due
Process Cases.
g. A confession obtained by direct or implied promises,
however slight, is not voluntary. Bram v. U.S. However, the courts have been
reluctant to follow a literal interpretation of Bram. Thus, most courts prohibit
false promises during interrogation only when the police make a specific promise
to provide a specific benefit to the defendant in exchange for a confession, and
the promise is not kept. Deceptive techniques have been approved, such as using
"false friend" or "game is up" approach. Modern Due Process Cases.
h. The creation of false documentary evidence, such as a
DNA report showing it was the defendant's fluids on the victim, in order to
obtain a confession is not permissible. Florida v. Cayward. False Documentary
Evidence.
i. A false promise of lenience is not proper, but a promise
to advise the prosecutor of the defendant's cooperation is allowed. Promises of
Consideration.
j. A confession made by the defendant to a police informant
cellmate who offered to protect the defendant from other prisoners in exchange
for the truth, was a sufficient threat of violence to establish coercion.
Threats of Physical Violence: Arizona v. Fulminante.
k. A confession, without police misconduct, is voluntary
and not coerced. Thus, coercive police activity is necessary for an involuntary
confession. A confession by a defendant in a non-rational state of mind is
voluntary, barring police misconduct. Focus on Police Misconduct: Colorado v.
Connelly.
l. A confession that is not a product of defendant's free
choice is admissible as long as it was not police misconduct that destroyed the
free will. Consideration should be given to whether or not the government has
made it impossible for the defendant to make a rational choice as to whether to
confess. Problems With a Test Based on Free Will.

III. The Special Federal Standard for Confessions.

A. The McNabb/Mallory Rule.
1. The McNabb/Mallory Rule developed from two cases that held
that federal court confessions are inadmissible if the arrestee is not timely
brought before a judicial officer (McNabb v. U.S.), or if there is unnecessary
delay in taking the arrestee before a committing magistrate. (Mallory v. U.S.).
Delay in Presentment: The McNabb/Mallory Rule.
2. Congress attempted to eliminate the McNabb/Mallory Rule by
enacting a statute which provided that a confession shall not be inadmissible
solely because of a delay in bringing the defendant before a magistrate. A
number of factors must be considered to determine voluntariness, and the
confession should be made within 6 hours following arrest, unless distance or
travel to a magistrate is a factor. The Congressional Approach: 18 U.S.C. §
3501.
a. The federal confession statute, 18 U.S.C.§ 3501, does
not apply when a suspect is being detained by state authorities on state
charges. Construing the Statute: United States v. Alvarez-Sanchez.
b. Confessions made beyond 6 hours following arrest may be
admissible if voluntary and either not as a result of police interrogation or
the delay was not completely unreasonable or in bad faith. One court has held
that a confession made within the 6 hour period following arrest was not
entitled to suppression under the McNabb/Mallary cases since they are no longer
the law concerning delay. Relationship Between Section 3501 and the McNabb-
Mallory Rule.

IV. Application of the Fifth Amendment Privilege Against Self-Incrimination to

Confessions.
A. Miranda v. Arizona. 1. The Fifth Amendment privilege
against self-incrimination applies to police interrogations, and requires
certain warnings be given to the suspect prior to obtaining admissible
statements. Thus, statements obtained from a suspect during a custodial
interrogation are inadmissible unless procedural safeguards are used which
effectively safeguard the privilege against self-incrimination.
a. The term custodial interrogation means 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.
b. In order to properly inform persons of their right of
silence and to assure a continuous opportunity to exercise it, an accused, prior
to any questioning, must be warned of the right to remain silent, that any
statement made may be used against him, and that he has a right to an attorney,
either retained or appointed.
c. These rights may be waived if the waiver is made
voluntarily, knowingly and intelligently. If the suspect indicates at any time
he wishes to consult with an attorney, there can be no questioning.
d. Also, if the individual does not wish to be
interrogated, the police may not question him. Answering some questions or
volunteering some statements does not deprive one of the right to refrain from
answering further inquiries. Miranda v. Arizona.
2. Miranda is significant for not only its requirement of giving
the accused certain warnings prior to interrogation, but also because it applied
the Fifth Amendment privilege to custodial interrogations. Prior to Miranda,
police interrogations were immune to Fifth Amendment attack because there was no
obligation to speak, so therefore no duty against which a privilege of silence
could be applied. Analysis of Miranda.
3. Numerous studies have been done to determine the impact of
Miranda on confessions and convictions. The debate over the effects is ongoing.
The Impact of Miranda.
4. Miranda claims can be re-litigated on collateral review of a
state court conviction. To exclude Miranda claims on habeas review would not
significantly benefit the federal courts. Miranda's Costs on Habeas Review.
5. Miranda did not hold that a suspect must have a non-waivable
right to an attorney before being interrogated. The ruling struck a compromise
and did not give significant advantages to the suspect being interrogated. The
Miranda Compromise.
6. Miranda is a symbol of the Warren court's decisions concerning
criminal procedures. Miranda as Symbol.
7. The Miranda court invited alternatives to its warnings and
waivers. However, the court did not explain what procedures would be acceptable
alternatives. Thus, different alternatives have not been proposed. Videotaping
would deter police misconduct, but it would not necessarily safeguard against
compulsion. Alternatives to Miranda.
B. Did Congress Overrule Miranda?
1. The issue of whether or not Congress, by enacting the federal
confession statute, 18 U.S.C.§ 3501, overruled Miranda will be decided by the
Supreme Court in United States v. Dickerson.
C. The Constitution Does Not Require The Miranda Safeguards.
1. Exceptions to the Miranda Rule of Exclusion.
a. Impeaching the Defendant-Witness.
(1) Statements made either with or without the Miranda
warnings may be used for purposes of impeaching the defendant's credibility.
Harris v. New York, Oregon v. Hass.
(a) If the statement is involuntary, as opposed
to Miranda-defective, it cannot be admitted even for impeachment purposes.
Involuntary Confessions.
(2) Once Miranda warnings are given, the prosecution
may not use the defendant's silence for impeachment purposes, even if he
testifies at trial. Impeachment With Prior Silence.
(a) Impeachment by using silence, pre-arrest and
pre-Miranda warnings, is permissible. Pre-Arrest Silence.
(b) Post-arrest silence, preceding Miranda
warnings, is permissible for impeachment purposes. Post-Arrest, Pre-Miranda
Silence.
b. Admitting the Fruits of a Miranda Violation.
(1) Exclusion of the fruit of the poisonous tree is
applicable when a constitutional right is violated. Violation of Miranda is not
by itself a violation of the Constitution.
(2) Miranda-defective statements by a defendant, which
lead to incriminating statements from a witness, do not bar the witness'
testimony. Leads to Witnesses: Michigan v. Tucker.
(3) A second confession after Miranda warnings are
given, but resulting from a Miranda-defective first confession, is admissible if
it is made knowingly and voluntarily. Subsequent Confessions: Oregon v. Elstad.
(a) If the first Miranda-defective confession is
involuntary, the second confession following Miranda warnings is inadmissible.
Was the First Confession Involuntary?
(b) If the second confession is involuntary, it
is inadmissible. It is not however involuntary merely because the first
confession was made. Was the Subsequent Confession Involuntary?
 (c) The dissent in Elstad argued that the pre-
warning and post-warning questioning is one overall interrogation, and a
Miranda-defective confession taints the second confession. Criticism of Elstad.
(d) Lower courts are divided on whether a
Miranda-warned second confession following close in time to a Miranda-defective
first confession should be admissible. Warned Statements Immediately Following
Unwarned Statements.
(4) Physical evidence, which is the fruit of a
Miranda-defective confession, is admissible since constitutional rights are not
infringed by a Miranda violation. Physical Evidence Derived From Miranda-
Defective Confessions.
c. An Emergency Exception.
(1) Overriding considerations of public safety which
justify the failure to give Miranda warnings, will permit the admissibility of
an Miranda-defective confession into evidence. Thus, the defendant's statement
to police regarding the gun's location, made following foot pursuit immediately
after rape occurred, was admissible. New York v. Quarles.
(2) What exactly constitutes public safety is not
clear. If there is no immediate need to inquire of the suspect, confessions
without Miranda warnings are inadmissible. The Scope of the Public Safety
Exception.
(3) A lower court ruling allowed a pre-Miranda
statement when the in-custody drug suspect was asked by the police if there were
any needles or drugs on his person prior to being searched. The officer's
concern about being poked with a needle constituted public safety. Categorical
Application of the Public Safety Exception.
D. Open Questions After Miranda.
1. Custody. a. Miranda warnings are only
required when the defendant is in custody. What is Custody?
(1) A person is in custody if he is deprived of his
freedom of action in any significant way. An arrested person is in custody even
though he is arrested inside his home. If government agents come to person's
home just to talk, it is not custody. Arrest is Custody.
(2) Persons in jail on unrelated matters are in
custody for purposes of other crimes. However, if freedom of movement by the
prisoner is not diminished within jail, it may not constitute custody. Prisoners
in Custody.
(3) Voluntarily going to police station for
questioning does not constitute custody if no arrest occurs and freedom to leave
exists. Interrogation at the Police Station: Oregon v. Mathiason.
(4) Meeting with a probation officer for questioning
concerning a crime without arrest is not custody. Meetings With a Probation
Officer: Minnesota v. Murphy.
(5) Whether or not the police conducting questioning
believe that person is a suspect is not relevant unless the beliefs were
communicated to the person interrogated and it affected the person's freedom to
leave. Objective Test: Stansbury v. California.
(6) Terry stops are not custody and do not require
Miranda warnings. Terry Stops: Berkemer v. McCarty.
(7) Relevant factors to determine custody are
(a) Whether suspect was told he was free to
leave,
(b) Whether unrestrained freedom of movement
existed,
(c) Whether suspect initiated contact or
voluntarily agreed to questioning,
 (d) Whether strong arm or deceptive tactics were
used,
(e) Whether atmosphere was police dominated,
and,
(f) Whether arrest occurred at conclusion.
Summary on Custody: Relevant Factors.
2. Interrogation.
a. Interrogation must exist before Miranda warnings are
required to be given. What is Interrogation?
(1) Interrogation may exist, without direct
questioning, if the police should know that their words or actions are
reasonably likely to elicit an incriminating response from the suspect. Rhode
Island v. Innis.
(a) Statements voluntarily made to a spouse and
knowingly recorded by police after request for counsel has been made does not
constitute compelled interrogation. Application of Innis: Arizona v. Mauro.
(b) Statements made in response to officer's
comments concerning arresting suspect's daughter was not made as a result of
interrogation. Appeals to the Welfare of Others as Interrogation?
(c) Confronting suspect with incriminating
evidence against him constitutes interrogation. Confronting the Suspect With
Incriminating Evidence.
b. Making direct comments to a suspect will more likely
constitute interrogation than comments not directly made to a suspect. Direct
vs. Indirect Statements.
c. The "booking exception," i.e., questions that are
attendant to custody, do not require Miranda warnings. However, the exception
will not apply if questions are designed to elicit incriminating statements.
Questions Attendant to Custody: Pennsylvania v. Muniz.
(1) Determining whether a question falls within the
booking exception depends upon whether there is a proper administrative purpose.
Determining the Scope of the Booking Questions Exception.
(2) Instructions and questions regarding sobriety
tests and understanding them are not interrogations since they do not call for
any verbal responses and are necessarily attendant to the tests. Questions
Pertinent to Custodial Procedures and Tests.
3. Miranda warnings are not required for statements made to an
undercover agent since there is no protection against those not believed to be a
government agent. Does Miranda Apply to Undercover Activity?
4. Miranda warnings are required for both felonies and
misdemeanors. Does Miranda Protection Depend on the Nature of the Offense?
5. The Miranda warnings need not be given verbatim. As long as
they do not mislead or create ambiguity, they are proper. How Complete and
Accurate Must the Warnings Be?
E. Waiver of Miranda Rights.
1. A waiver must be made voluntarily, knowingly and
intelligently. "Voluntarily" means the waiver is the product of a free and
deliberate choice. "Knowingly and intelligently" means the waiver is given with
awareness of both the nature of the right being abandoned and the consequences
of the decision to abandon it. Knowing and Voluntary.
a. A confession made following a waiver may be inadmissible
because of overbearing police pressure. Relationship of Waiver Standards to the
Test for Voluntary Confessions.
b. A waiver may not be made knowingly and intelligently if
the person is mentally deranged or impaired, or if there is a language barrier.
Understanding the Miranda Warnings.
 c. Agreeing to make an oral statement but not a written one
is a knowing and voluntary waiver. Connecticut v. Barrett. However, agreeing to
talk about one subject but not another is not a total waiver. Conditional
Waivers: Connecticut v. Barrett.
d. A defendant need not be fully advised of each and every
possible consequence of the waiver, nor must he be advised of all possible
subjects of questioning. Information Needed for an Intelligent Waiver: The Scope
of the Interrogation-Colorado v. Spring.
e. A second post-Miranda confession is not inadmissible
because defendant was not advised that his first pre-Miranda confession could
not be used against him. Information Needed for an Intelligent Waiver: The
Inadmissibility of a Previous Confession-Oregon v. Elstad
f. A waiver is valid in spite of the defendant not knowing
that an attorney had made efforts to reach him and had told police not to
question the defendant. Information Needed for an Intelligent Waiver: Efforts of
a Lawyer to Contact the Suspect-Moran v. Burbine.
g. The state of mind of the police is not relevant in
determining the validity of a waiver. This is true even if their conduct was an
intentional act done to deprive the defendant of knowing that an attorney was
attempting to reach him. State of Mind of Police Irrelevant.
h. Miranda warnings are measures to protect against
compulsory self-incrimination. They are not meant to prevent deliberate,
misleading conduct by the police. The Role of Counsel.
i. Miranda does not require police to inform a suspect of
an attorney's effort to reach him. No Requirement to Inform the Suspect of
Counsel's Efforts.
(1) The dissenting view holds that requiring the
police to inform a suspect of an attorney's attempt to reach him would serve
Miranda's goal of dispelling the compulsion inherent in custodial interrogation.
Dissent in Burbine
(2) A lower court has held that if the defendant knows
an attorney has been retained and is not so advised by police, Miranda is
violated. Some state courts have held that Miranda is violated regardless of
whether a suspect knows that an attorney has been retained. Questions After
Burbine.
2. If a suspect first invokes Miranda rights and then waives them
to confess, the change of mind must come from the suspect, and not from police
harassment. Waiver After Invocation of Miranda Rights.
a. Once Miranda rights are invoked, questioning is not
forever barred. Rather, the right to stop questioning must be scrupulously
honored. Once honored, interrogation is permitted after a knowing and voluntary
waiver. Invocation of the Right to Silence: Michigan v. Mosley.
(1) A cooling off period after invoking Miranda rights
is evidence of scrupulously honoring the right of the suspect. Multiple efforts
to get the suspect to speak may be valid as long as each attempt is preceded by
Miranda warnings. Scrupulously Honoring an Invocation of Silence.
b. A suspect must unequivocally invoke his right to remain
silent. If the suspect ambiguously or equivocally invokes the right, police may
continue questioning and need not clarify the suspect's intent. When Is the
Right to Silence Invoked?
c. Once a suspect invokes his right to counsel, it may not
be waived until counsel has been made available, unless the suspect initiates
the communication with police. Invocation of the Right to Counsel: Edwards v.
Arizona.
(1) Once the suspect invokes the right to counsel, the
issue of waiver arises only upon renewed police contact amounting to custodial
interrogation. Relationship Between Edwards and Innis.
 (2) A suspect asking, "What is going to happen to me
now?" is initiation. However, if the confession occurs after a knowing and
intelligent waiver it is admissible. Defining Initiation: Oregon v. Bradshaw.
(3) Not all communications by the suspect are
"initiation"; nonverbal communications such as facial expressions are not
initiations. Applications of Bradshaw.
d. Invoking the right to counsel must be unequivocal. If it
is ambiguous or equivocal, the questioning may continue. The questions need not
be limited to the issue of whether the suspect wants a lawyer. Ambiguous
Invocation of the Right to Counsel: Davis v. United States.
(1) Some have questioned whether the requirement of an
explicit invoking of the right to counsel disadvantages those who use a less
direct and assertive pattern of speech. Questions After Davis.
(2) An unambiguous request for counsel followed by
ambiguous statements requires the cessation of questioning. Consequences of
Explicit Invocation: Smith v. Illinois.
e. Once the right to counsel is invoked, questioning may
not occur regarding any crime, even those other than the one for which the right
was invoked. Unrelated Crimes: Arizona v. Roberson.
f. The right to counsel exists based upon Miranda and the
Sixth Amendment. One who is arraigned and asks for counsel does so under the
Sixth Amendment. Thus, police can initiate questions other than on the crime
with which defendant is charged. Miranda rights protect against police initiated
interrogation with respect to any crime. Which Constitutional Right to Counsel
is Invoked? McNeil v. Wisconsin.
g. The right to counsel cannot be invoked prior to police
interrogation. Thus, the more extensive interrogation allowed under the Sixth
Amendment may not be overcome by asserting Miranda rights in advance of
interrogation. Can Edwards Protections Be Triggered in Advance of Interrogation?
h. Police initiated interrogation after consultation with
attorney has occurred is not allowed. Where the Suspect Has Consulted With
Counsel: Minnick v. Mississipp

V. Application of the Sixth Amendment Right to Counsel to Confessions.

A. The Massiah Rule. 1. Obtaining incriminating statements
from an accused after an indictment has been returned violates the Sixth
Amendment right to counsel, even if statements are not made directly to the
police. Massiah v. United States.
2. Once the Sixth Amendment right to counsel is invoked after
charges have been brought, the adversary nature of the proceedings disallows
interference with the right. The Rationale of Massiah.
3. It was a short lived attempt, prior to Miranda, to apply the
Sixth Amendment right to counsel to pre-institution of judicial proceedings.
Note on Escobedo v. Illinois.
B. Obtaining Information From Formally Charged Defendants.
1. The Sixth Amendment right to counsel is violated if
incriminating statements are obtained from the accused after judicial
proceedings have been initiated and counsel retained. Brewer v. Williams.
a. Administrative detention of prison inmates, even for up
to 19 months prior to being indicted, does not constitute judicial proceedings
for which the right to counsel will attach. Sixth Amendment Attaches at Formal
Charge: United States v. Gouveia.
b. The right to counsel does not allow a defendant the
right to have counsel present at a psychiatric interview. A psychological
evaluation is admissible to rebut a defense of extreme emotional disturbance
when defense counsel has joined in the request for the evaluation. However, it
is a violation of the right to counsel to not inform defense counsel that his
client would be examined on the issue of future dangerousness, even with
testimony by the defense of insanity. Psychiatric Defenses and the Sixth
Amendment.
c. There must be a deliberate elicitation by the
governmental agent of incriminating evidence from the defendant. On the Meaning
of "Deliberate" Elicitation.
C. Use of Undercover Officers and State Agents.
1. Jailhouse informants are also subject to the "deliberately
elicited" test regarding obtaining incriminating evidence from the defendant.
Jailhouse Plant: United States v. Henry.
2. If the jailhouse informant does nothing more than listening to
the defendant, he has not deliberately elicited information from him. The
Listening Post: Kuhlmann v. Wilson.
3. The question of whether or not an informant is acting as a
government agent or on his account depends upon whether or not the government
encouraged the informant to act on the particular case at issue. Is the
Informant a State Agent?
D. Continuing Investigations. 1. The government may not use
an informant to circumvent the right to counsel and obtain information regarding
crimes already charged. It may however obtain information regarding crimes not
charged. Maine v. Moulton.
2. If the evidence obtained regarding the uncharged crimes is
relevant in the prosecution of the charged crimes, lower courts have held that
the uncharged crime evidence is inadmissible. The reasoning is that the
government must have known that the statements concerning the uncharged crimes
would incriminate on the charged crimes as well. Questions After Moulton.
E. Waiver of Sixth Amendment Protections. 1. Miranda
warnings, which include the right to counsel, sufficiently advise the suspect of
his right to counsel under the Sixth Amendment. Waiving Sixth Amendment Rights
After Receiving Miranda Warnings: Patterson v. Illinois.
a. In limited situations, waiving Miranda rights does not
waive the Sixth Amendment right to counsel. For example, a waiver would not be
valid in the Sixth Amendment context if the suspect was not told that his lawyer
was trying to reach him during questioning, or where a surreptitious
conversation occurred between an undercover officer and an indicted suspect. Two
Situations in Which Sixth Amendment Waiver Standards Might be Different.
b. Most lower courts have held that there is no requirement
to advise a suspect that he has been indicted before a Sixth Amendment waiver
may be found. Indictment Warnings.
2. When an accused invokes the Sixth Amendment right to counsel,
a subsequent waiver is valid only if the suspect initiates a later conversation
and knowingly and voluntarily waived his rights. If the suspect remains silent
while counsel is appointed, this is not a valid waiver. Waiving the Sixth
Amendment Right to Counsel After Invoking It: Michigan v. Jackson.
3. Invoking the Sixth Amendment right to counsel protects only as
to the crime charged. Thus, once warnings are given and waived, questioning is
permitted concerning crimes unrelated to those charged. Waiver as to Crimes
Unrelated to the Crime Charged: McNeil v. Wisconsin.
a. Determining whether or not a crime is related to the
crime charged depends on whether the crime derives from the same factual
predicate as the charged offense. Which Crimes Are Related to the Crime Charged.
F. The Sixth Amendment Exclusionary Rule. 1. There has been
no determinative ruling by the Supreme Court as to whether or not the
Constitution requires exclusion of a confession obtained in violation of the
Sixth Amendment right to counsel.