CHEH—CRIMINAL PROCEDURE—FALL 2002
OUTLINE
INTERROGATION, CONFESSIONS AND DUE PROCESS
I. Interrogations & the Voluntariness Std.
A. The Rule
1. RULE: STATE ACTION + INVOLUNTARY CONFESSION = DUE PROCESS VIOLATION. Burden of proof on gov’t.
2. Confessions obtained through coercion violates accused’s due process rights as guaranteed by the 14th A.
a. Physical violence per se coercion; confession inadmissible. Brown v. Mississippi, 1936
b. Psychological torture can be coercive as well. Watts v. Indiana (1949). NB: In Watts the SCT expands the notion of due process. Here, the evidence overwhelmingly pointed to Watts’ guilt, but the focus was not on the reliability of the facts of the confession but on the right agst. self-incrimination (later picked up in Miranda)
3. How do you determine when an interrogation is coercive within terms of 14th A.?
a. Frankfurter: accusatorial system. Up to the gov’t to prove their case w/o undue pressure on accused.
b. Jackson: Totality of the Circumstances [PREVAILING VIEW]; where the accused’s will is overborne such that confession is not voluntary; no longer has the ability to choose rationally whether to offer evidence.
4. State action requirement: Colorado v. Connelly (1986) (Rehnquist)
a. Mentally ill man confesses for crime, seeks to have confession thrown out as involuntary b/c he was under influence of internal voices.
b. Ct. held that a due process claim must involve state action. Here, there was no interrogation, so no state action. Dissent argues that the court process itself was state action, so it is possible to bring suit.
c. If police were forced to consider the D’s intent every time they confessed, would est. a new const’l right of confessing only when rational.
d. BRENNAN’S dissent: if mentally ill and the confession is the only evidence, then corroborating (extrinsic) evidence needed to show reliability of confession.
B. What is coercion?
1. D’s character: Age, mental stability, pressure.
a. Accused’s mental/physical state. More coercive where no food, drink, sleep.
b. Accused’s prior criminal history—the more often interrogated, the more likely to know the drill.
2. Police tactics:
a. Lying and trickery is not coercion. Frazier v. Cupp: “you can’t get in anymore trouble now.”
b. BUT, cannot promise to broker deals w/DA or get better sentence (the “false friend”). See p. 40: State v. Kelekolio (HI). Can lie about instrinsic facts, but not about extrinsic facts (promises of better sentence, mental health treatment) or the law. If over the top lying (pretending to be a priest) then coercion.
c. Threats of violence or actual violence = coercion.
3. Circumstances of the interrogation: Duration of interrogation.
a. Round the clock interrogation for hours on end is coercive.
b. Late at night, in brightly lit room, multiple cops.
c. Who was present? Were guns visible? Unholstered? Was place familiar?
4. Effect of a coerced confession on trial: if other evidence supports conviction, then harmless error. (Arizona v. Fulminante, 1991). Prior to Fulminante courts required a new trial if confession coerced; now can be harmless error, despite overwhelming FRE 403 concerns.
C. The Interrogation of Frank Miller: Handout # 2
1. D’s argument to exclude
a. Officer makes promises to get him treatment instead of jail
b. Prior sexual offenses, seeing a psychiatrist, mental illness
c. Miller goes into catatonic state and is taken to hospital. Can’t get more overborne of a will than that.
d. Interrogator lies about evid., lies about death
e. D appears disoriented
2. Prosecution’s argument to admit
a. police can lie about facts (Frazier v. Cupp)
b. Miller has been arrested before, knows what to expect
c. Catatonic state is reaction to realization of guilt
d. D went w/police voluntarily
e. Mental state: regularly works, answers coherently, understood rights
f. Interrogation was at night, but D works nights. Rather brief.
II. Confessions: The 5th A. Protection Agst. Self-Incrimination
A. Miranda v. Arizona, 1966 (Brennan)
1. RULE: CUSTODY + INTERROGATION = WARNINGS
2. Unlike due process claims, Miranda seeks to protect a different right: a constitutional right agst. self-incrimination
3. Does not replace the due process/voluntariness test. It is still possible for accused to give a “voluntary” confession that is coerced, and vice versa.
4. NB: Miranda later considered a mere prophylactic rule, so warnings are not constitutionally required.
5. Majority says interrogations are per se coercive, so must give warnings before any interog. to make valid waiver.
6. Warning: right to remain silent, anything said can be used agst. you, right to an atty.
B. Scope and sufficiency of warnings
1. Sufficiency of warnings: “whether the warnings reasonably conveyed to a suspect his rights as required by Miranda” (Duckworth v. Eagen)
2. Requirements
a. Must be TESTIMONIAL evidence (not blood sample, fingerprints)
b. Personal right—cannot claim for others
C. What is CUSTODY?
1. “Deprivation of freedom of action in any significant way;” “the functional equivalent to arrest;” Would a reasonable person innocent of a crime in the same circumstances as the D think they were in custody?
2. Beckwith v. US. Tax evasion case. D has police in house then goes over to office to get records. Seeks to exclude b/c no Miranda warnings. Ct. rules that D was never in custody b/c free to leave at any time.
3. Oregon v. Matthiason (1986). D was questioned, specifically told not under arrest, actually left the police station. NOT custody b/c “not deprived of his freedom of action in any significant way.”
4. Berkemer v. McCarty: (SCT 1984) drunk driver pulled over, questioned, then arrested. S’ments made at stop admissible b/c not “in custody” for purposes of Miranda. “[T]he only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.”
5. Il. v. Perkins: (SCT 1990)Prisoners questioned by informants are not “in custody” for purposes of Miranda b/c there is no “coercion” of interrogation. Thus no need for warnings and confession can be admitted if passing evidentiary hurdles.
6. Elements of Custody (pp. 93-109)
a. Place of interrogation. Non-custodial interrogations, generally: home, work, restaurants, gov’t offices (unless police dominated), hospitals (although courts are split here)
b. Time of interrogation.
c. Persons present
d. Indication of arrest (physical restraint, guns visible, demeanor of officer)
e. Length and forms of questions.
D. What is INTERROGATION?
1. “Any words or actions the police should have known were reasonably likely to elicit an incriminating response from an average suspect”
2. Rhode Island v. Innis: suspect put in car to go to station, arrested for murdering cab driver. Officers discuss possibility of handicapped child finding gun. D interrupted and told police where gun located.
3. Arizona v. Mauro: (SCT 1987). D asked to speak to wife, s’ment recorded and recorder visible. No interrogation.
4. Pennsylvania v. Muniz: (SCT 1990). What year was it when you were six? Goes beyond mere booking questions—asking question that could be used to prove accusations.
5. THE EMERGENCY EXCEPTION.
a. Quarles (SCT 1984): Where is the gun?? Ct. creates an “emergency exception” where there is an immediate threat to public safety.
b. Major shift from considering Miranda as constitutional rules to mere “procedural safeguards,” or prophylactic rules.
c. Dissenting, O’Connor makes the point that the officer can always protect public safety, the issue is just whether the evidence can be used in a criminal prosecution.
E. What constitutes a valid WAIVER?
1. Totality of the circumstances, “background, experience, and conduct of the accused.” (North Carolina v. Butler)
2. Waiver must be voluntary, knowing but not express (can be conveyed through behavior).
3. “Knowing” requires only that they understand the warnings, not the effect of the waiver.
4. If the interrogation has not yet begun, and suspect asks for atty, then must clarify. If already interrogating, and equivocal s’ment made, no need for police to clarify b/c already waived.
F. Right to counsel v. Right to silence
1. If the suspect requests right to silence, police must “scrupulously honor” but can later requestion. If requests atty, CANNOT interrogate unless atty. present OR suspect initiates. (Edwards v. Arizona (SCT 1981))
2. Initiation: “a generalized discussion about the investigation.” Must be by the D (what is going to happen to me now?) AND must be about the subject of the investigation. Oregon v. Bradshaw (1983).
3. Right to silence. Can requestion after suitable length of time has passed. Doesn’t have to be by different police or about different subject. Michigan v. Mosley (p. 153, SCT 1975
4. Right to Counsel
a. more strictly protected b/c the suspect is actually requesting help, not like silence where willing to go it alone. Further, an atty. is the best way to protect agst. 5th A. violations. Bright-line rule best for application of rule.
b. Cannot be interrog. outside presence of atty., even if already consulted w/atty. Minnick v. Mississippi, SCT 1990, p. 163.
c. NB: VOLUNTEERED S’MENTS ARE ALWAYS OKAY.
d. Cannot request an atty. before custodial interrogation has begun, no “anticipatory invocation.” McNeil v. Wisconsin, p. 161.
a. No questioning allowed after request for atty. even when about different crime and different officer who did not know suspect requested counsel. Arizona v. Roberson, (SCT 1988), p. 162.
III. APPLICATION: Beasley Interrogation Video
A. How can you exclude the confession? The 5th A.
1. Clearly in custody and being interrogated, so was he given his Miranda warnings?
a. If yes, were the warnings clear? Following Duckworth (“If and when you go to court. . .”) warnings only have to reasonably convey the meaning of the warning.
b. DO NOT have to say he can stop at any time, silence will not be held agst. him (can stand on rights) or the nature of the matter to be questioned about.
2. Was the waiver given knowingly and voluntarily? Look at TOC.
a. voluntarily: proven by preponderance of the evidence; no trickery allowed.
b. Knowing: does not mean that he knows what it means to waive, but that he understands his rights.
c. For Beasley, he did not “know” he was being videotaped. He may not have waived his rights if he knew he was being videotaped, which is a difference in degree and in kind (can be replayed to jury, not just a paper transcript).
d. Further, he does not need to “know” the matter about which he is being questioned, here a gun charge leading to murder. Waiver for one is waiver for all.
3. Incapacity in any way?? Must be able to show that he could not understand what the warnings are, not the implications of waiver.
B. How can you exclude the confession? The 14th A.
1. Was the confession voluntary or a product of coercion? Brown and Watts TOC test.
a. Here, the police knew him and knew which buttons to push. Exploiting the prior knowledge to elicit confession through psychological torture (Watts).
b. Possibility of physical violence (Brown). Comment from officer that “I won’t hurt you,” marked change in demeanor.
2. General Problems w/Testimony
a. Beasley repeatedly says he read about murder in paper & police feed him lines—is this really his testimony, or what the police want to hear?
b. Police lie throughout and make promises to ask for leniency and actually bargain with him to confess: “will drop the kidnapping charges if you confess”
IV. Dickerson and the Constitutional Validity of Miranda
THE 6TH A. RIGHT TO COUNSEL
I. Right to Counsel and Confessions
A. The Rule: No Deliberate Elicitation
1. When does the right attach? Formally charged + INVOCATION (Patterson v. IL, no automatic right to counsel, must request)
2. Police may not deliberately elicit information from an accused w/out counsel. 6th A. attaches once formal proceedings filed. (Massiah)
3. 6th A. right to counsel applies at “critical stages” of pre-trial; right is not exclusive to right to counsel during trial. (Massiah v. US, SCT 1964 holding secret taping of conversation inadmissible b/c no way to protect himself from interrogation.)
4. Brewer v. Williams: The Christian Burial speech. Where the police knew of the D’s mental illness and religious background, the speech was intended to elicit a response from the ACCUSED.
5. Filing of a criminal complaint and issuance of an arrest warrant is formal proceedings, thus 6th A. attaches. Kuhlmann (2d Cir. 1987)
6. NB: The suspect must be formally charged, merely having counsel does not trigger 6th A. right to be free from interrogation. (Moran v. Burbine)
B. Limits: 6th A. is Offense-Specific
1. Request for an atty. to a specific crime does not foreclose interrogation as to other crimes for which the suspect has not been charged. (McNeil v. Wisconsin)
2. Thus, the issue becomes what is the offense?
a. Texas v. Cobb, SCT 2001
b. The SCT adopted the Blockburger test: Does the proof of one crime require the evidence of a fact or element which the other does not? If so, then two different offenses and 6th A. rights only apply to the one charged.
c. Ex. The police can charge a suspect w/conspiracy to commit armed robbery and 6th A. attaches. The accused can then be questioned regarding the armed robbery w/o the presence of counsel b/c the 6th A. does not apply to armed robbery, but to conspiracy.
II. Applications of the Rule
A. Jailhouse Informants
1. Listening Posts. Can use jailhouse plant so long as they do not ask questions or otherwise elicit info. (Kuhlman v. Wilson).
2. If the informant does ask questions, then deemed an agent of the state and evidence inadmissible as violation of 6th A. (US v. Henry, where paid informant provided incriminating testimony, test is whether a reasonable person would find it likely that incriminating info. would be supplied)
3. NB: Contrast w/Miranda. Jailhouse informants do not violate Miranda b/c there is no coercion—suspect does not know it’s a police officer.
B. Co-conspirator Informants
1. Doesn’t matter if the defendant initiated the meeting w/the informant, the D is still being unfairly taped w/o presence of counsel. (Maine v. Moulton, 1985) The counsel is the “medium.”
2. If co-conspirator tapes the meeting on his own and turns over to police, no violation b/c no deliberate elicitation, no state action.