Criminal Procedureessay Series

CRIMINAL PROCEDUREESSAY SERIES

ESSAY QUESTION #3

MODEL ANSWER

You are in a legal debate with the topic being the Fifth Amendment Right Against Self-Incrimination. How would you respond to the following scenarios:

1. Defendant was walking down the street, and was stopped by Police Officer, who had a reasonable suspicion that Defendant had committed criminal activity. Police Officer asked Defendant if Defendant had robbed the bank, and Defendant admitted to robbing the bank. No Miranda Warnings were given.

2. Defendant was walking down the street, and was stopped by Police Officer, who had a reasonable suspicion that Defendant had committed criminal activity. Police Officer asked Defendant to come down to the Station House with Police Officer. Then, Defendant admitted to robbing the bank. No Miranda Warnings were given.

3. Defendant was walking down the street, and was stopped by Police Officer, who had a reasonable suspicion that Defendant had committed criminal activity. Police Officer asked Defendant to come down to the Station House with Police Officer. When they entered the Station House, another Police Officer yelled out towards Defendant, “You are the person who robbed the bank.” Defendant admitted to robbing the bank. No Miranda Warnings were given.

4. Defendant was walking down the street, and was stopped by Police Officer, who had a reasonable suspicion that Defendant had committed criminal activity. Police Officer asked Defendant to come down to the Station House with Police Officer. When they entered the Station House, Police Officer read Miranda Rights to Defendant. Defendant then admitted to robbing the bank.

5. Defendant was walking down the street, and was stopped by Police Officer, who had a reasonable suspicion that Defendant had committed criminal activity. Police Officer asked Defendant to come down to the Station House with Police Officer. When they entered the Station House, a witness to the robbery yelled out towards Defendant, “You are the person who robbed the bank.” Defendant admitted to robbing the bank. No Miranda Warnings were given.

6. Defendant was walking down the street, and was stopped by Police Officer, who had a reasonable suspicion that Defendant had committed criminal activity. Police Officer asked Defendant to come down to the Station House with Police Officer. When they entered the Station House, Police Officer read Defendant his Miranda Rights, whereupon Defendant said that they would like to have their attorney present. Later in the day, Police Officer again read the defendant their Miranda Rights, and secured a waiver from Defendant, and proceeded to interrogate the Defendant without the presence of their attorney, and Defendant admitted to robbing a bank.

1. Defendant Admitted to Robbing the Bank on Street.

RIGHT AGAINST SELF-INCRIMINATION.

5th AMENDMENT. The Fifth Amendment provides that a person may not be compelled to be a witness against themselves. Here, defendant admitted to robbing the bank, and will seek to have that statement excluded.

ATTACHES WHEN:

CUSTODY. Under the totality of the circumstances, defendant is not free to leave. A suspect is under arrest when an officer takes a person into custody by the use of physical force or the person submits to the control of an officer who has indicated his intent to arrest that person. Absent a formal arrest, the question is whether a reasonable person in the suspect's position would have believed that he was under custodial arrest, and was not free to leave.

Here, the police officer initiated a Terry stop, which requires only reasonable suspicion. The police officer rightfully asked a couple of questions, but at no time are there indications that an arrest was made.

INTERROGATION. Words or actions meant to elicit an incriminating response. The police officer was asking basic questions, and was not interrogating the suspect.

GOVERNMENTAL OFFICIAL. A confession obtained through an interrogation by undercover police or a paid informant does not fall under Miranda protections because there is no police coercion if the suspect does not know they are being questioned by the police. The police officer is a governmental official.

INCRIMINATING COMMENT. Once the right against self-incrimination attaches, defendant will have standing to assert that any incriminating comments they make should be excluded from testimonial evidence. The following are types of non-testimonial evidence, which does not fall under the right against self-incrimination: physical or real evidence, such as identification procedures related to handwriting, voice exemplars, fingerprints, DNA samples, hair samples and dental impressions.

The suspect admitted to robbing the bank, which is an incriminating comment.

VOLUNTARY STATEMENTS. Voluntary statements are not covered under the 5th Amendment. Here, defendant was not in custody, nor did the police officer interrogate defendant. Therefore, defendant's Fifth Amendment right against self-incrimination had not attached, and defendant would not be able to assert protection under the 5th Amendment. The statement by defendant was therefore a voluntary statement.

MIRANDA. Before an interrogation begins, police must advise a suspect that they have the right to remain silent, that anything they say may be used against them, that they have a right to have an attorney present before and during questioning, and that they have the right to a free attorney appointed to represent them if they cannot afford an attorney. In this instance, Miranda rights were not read, but that is not important to the analysis, because defendant's 5th Amendment right against self-incrimination had not attached.

WAIVER. A waiver of Miranda must be knowing, voluntary and intelligent. In order to show that the waiver was voluntary, the standard is that there was no police coercion under a totality of the circumstances test. For a waiver to be knowing and intelligent, the suspect must have a basic understanding of the rights and their consequences. Here, there was no need for a waiver, because defendant's Miranda rights had not been read to defendant.

RIGHT TO AN ATTORNEY or SILENCE. Where a defendant asserts his right to remain silent, all interrogation must immediately stop and the police may not resume interrogation, and may not resume interrogation about any offense charged or uncharged unless the police have scrupulously honored the defendant's assertion, and defendant reinitiates contact for purposes of interrogation and police obtain a valid waiver before resuming the interrogation, or defendant's attorney is present. In determining whether the police scrupulously honored the assertion, courts apply a totality of the circumstances test. Here, the situation took place before reading Miranda rights.

CONCLUSION / EXCLUSIONARY RULE. Defendant will seek to have their incriminating statement excluded from trial court evidence. However, since defendant's statement was a voluntary statement, it will not fall under the protection of the 5th Amendment, and the evidence will not be excluded.

2. Defendant Admitted to Robbing the Bank at Station House.

RIGHT AGAINST SELF-INCRIMINATION.

5th AMENDMENT. Supra.

ATTACHES WHEN:

CUSTODY. Supra. At first glance, it appears that Defendant was free to not go with the Police Officer to the station house. However, the possibility exists that Police Officer has found something more after stopping Defendant, that prompted Police Officer to ascertain that he had probable cause to arrest. If this is the case, the a request to go to the station house is a kind way of saying that Defendant was not free to leave, but was in custody.

INTERROGATION. Supra. No interrogation took place in this situation.

GOVERNMENTAL OFFICIAL. Supra. Yes.

INCRIMINATING COMMENT. Supra. Yes.

VOLUNTARY STATEMENTS. Supra. Defendant admitted to robbing the bank, outside of the attachment of his Miranda rights. Therefore, his statement that he robbed the bank, would be a voluntary statement.

MIRANDA. Miranda warnings were not read, but they were not needed, because there was no interrogation.

CONCLUSION / EXCLUSIONARY RULE. Even though
Defendant may have been in the custody of a government official, there was no interrogation, and therefore, the statement by Defendant will not be excluded.

3. Defendant Admitted to Robbing the Bank at Station House, when Another Police Officer Yelled Out, “You are the person who robbed the bank.” .

RIGHT AGAINST SELF-INCRIMINATION.

ATTACHES WHEN:

CUSTODY. Yes, at station house there would be custody.

INTERROGATION. “You are the person who robbed the bank,” statement, could be meant to elicit an incriminating response. The statement is declaratory, and not in the form of a question, but it does constitute words that may induce someone to respond. Since, another police officer made the statement, as soon as Defendant entered the station house, circumstances suggest that the statement was made when Defendant did not expect the statement to be made, and Defendant could easily have responded in an incriminating fashion, as did occur, here. Therefore, this statement would constitute an interrogation.

GOVERNMENTAL OFFICIAL. Another police officer at the made the statement, and they would also be considered a government official.

INCRIMINATING COMMENT. Yes.

VOLUNTARY STATEMENTS. The statement by Defendant, that he robbed the bank, was not a voluntary statement, because, as stated above, his Miranda rights had attached.

MIRANDA. None given.

WAIVER. None waived.

CONCLUSION / EXCLUSIONARY RULE. This statement will be excluded, because Defendant made the statement while in the custody of a government official, and while being interrogated. Inasmuch as defendant had not been read his Miranda rights, and had not waived his Miranda rights, this statement will be excluded.

4. Defendant Admitted to Robbing the Bank at Station House, After Miranda Warnings were Given.

RIGHT AGAINST SELF-INCRIMINATION.

ATTACHES WHEN:

CUSTODY. It is clear that defendant is in the custody of Police Officer, because they entered the station house together.

INTERROGATION. No.

GOVERNMENTAL OFFICIAL. Yes.

INCRIMINATING COMMENT. Yes.

VOLUNTARY STATEMENTS. The statement by the Defendant was made in the absence of interrogation by a government official while in custody, and therefore Defendant's statement was voluntary.

MIRANDA. Yes.

WAIVER. No.

CONCLUSION / EXCLUSIONARY RULE. Not excluded.

5. Defendant Admitted to Robbing the Bank at Station House, when a Witness to the Crime Yelled Out, “You are the person who robbed the bank.” .

RIGHT AGAINST SELF-INCRIMINATION.

ATTACHES WHEN:

CUSTODY. Yes.

INTERROGATION. As stated above, “You are the person who robbed the bank,” is a statement meant to elicit an incriminating response.

GOVERNMENTAL OFFICIAL. The person who made the statement cited above, was not a governmental official, but rather a private person who was a witness to the bank robbery.

INCRIMINATING COMMENT. Yes.

VOLUNTARY STATEMENTS. Yes.

MIRANDA. No.

WAIVER. No.

CONCLUSION / EXCLUSIONARY RULE. Defendant's statement will not be excluded, here, because although his statement was made while in police custody, and a statement was made that was meant to elicit an incriminating response, the statement was not made by a government official.

6. Defendant Waived Their Miranda Rights.

Here, Defendant originally demanded their attorney. At that moment, all questioning must stop. Defendant must then be given the opportunity to have his attorney present in the future. Here, that did not occur. Rather, after Defendant had asserted their right to an attorney, Police Officer again tried to secure a waiver from Defendant. This waiver, however, is improper, because Police Officer re-initiated the contact, and not Defendant.

CONCLUSION / EXCLUSIONARY RULE. The incriminating statement by Defendant will be excluded, because Defendant should have had their attorney present.