The Fifth Amendment: Police Interrogation & Miranda

Kuhlmann v. Wilson (1986) *particularly important note case*

ISSUE: does 6th amendment cover passive listening devices? HOLDING: No; statements made while held after arrested and picked up by passive listening devices are allowed ---- o Statements made in jail are allowed Getting information outside the use of counsel

Other cases leading up to Massiah

Twining v. New Jersey (1908) ---- o 5th amendment privilege against self-incrimination did not bind state courts ---- o However, compulsion by torture to extort a confession is a violation of due process Brown v. Mississippi (1936) ---- o Voluntariness requirement for state case when suspect whipped with metal until confessed Ashcraft v. Tennessee (1944) ---- o Confession made through psychological coercion—not physical—by being held awake from 7pm Saturday until 9:30am Monday was not voluntary Watts v. Indiana (1949) ---- o A statement that is the product of sustained pressure by the police is not a statement from a free choice Malloy v. Hogan (1964) ---- o 5th amendment privilege is applicable to the states (not just federal)

Escobedo v. Illinois

"A system of criminal law enforcement which comes to depend on the 'confession' will, in the long run, by less reliable and more subject to abuses than a system which depends on extrinsic evidence." "No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise "Where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular subject, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied "the Assistance of Counsel" in violation of the Sixth Amendment, . . . and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." ---- o Any lawyer worth his salt is going to tell a suspect to not talk to police, does this erode crim justice.

Counselman v. Hitchcock

5th amendment is applicable under any proceeding where evidence is compelled, at least if testimony can be self-incriminating ---- o Not just confined to criminal cases ---- o "Criminal" refers to the proceeding in which the evidence might be used; not the proceeding that leads to the evidence HOLDING: No statute, which leaves the party subject to prosecution after an incriminating statement may take the place of the 5th amendment privilege ---- o Essentially, must have transactional immunity to compel self-incriminating testimony ---- o The scope of the 5th amendment isn't limited to just criminal prosecutions.

McNeal v. Wisconsin

6th amendment right to counsel (as in Jackson) only bars questioning on the crime charged with; police are not barred from questioning defendant on other crimes even if he has invoked his right to counsel

Illinois v. Perkins

An undercover agent was placed in the cell of respondent Perkins, who was incarcerated on charges unrelated to the agent's investigation. Perkins made statements that implicated him in the crime that the agent sought to solve. ---- o Court upholds the admissibility of the statements although he was not Mirandized by the agent. Police learned from a prisoner (Charlton) that Perkins was a suspect in an unsolved murder. However, by the time of the tip, Perkins had been released and held in another prison. Because the police were afraid that an eavesdropping device would be impractical and unsafe, they decided to place Charlton and an undercover agent (Parisi) in Perkins's cell. After being engaged in a conversation about murder, Parisi asked Perkins if he had ever killed. ---- o In response, Perkins replied that he had and detailed the Stephenson murder. Appellate Court of Illinois held that Miranda prohibited all undercover contacts with incarcerated suspects which are reasonably likely to elicit an incriminating response. Court reverses, finding that an undercover officer does not have to give the warnings. At the heart of Miranda was the "police dominated atmosphere" overcoming the free will of the suspect. ---- o When the suspect considers himself in the presence of cellmate, the coercion setting at issue in Miranda is lacking. The Court rejects the argument that Miranda prohibits any conversation with a government agent whenever the suspect is in technical custody. ---- o Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda. Brennan, concurring ---- o A suspect that does not know that his questioner is a police agent, such questioning does not amount to "interrogation" in an "inherently coercive" environment as to warrant Miranda. ---- o Does find that the ruse used to elicit the statements may have violated due process. ---- o "Confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents." In general, Miranda interrogations only occur in the context where the individual knows that he's talking to a government agent (Perkins) ---- o If you're being questioned by an undercover agent whom you don't know is police then Miranda doesn't come into play under interrogation b/c it is not the same sort of coercion as when being questioned by police. Not same atmosphere of compulsion as when you know you're talking to police.

Notes after

Arizona v. Fulminante ---- o Defendant, while incarcerated, made friends with an FBI informer masquerading as an organized crime figure. ---- o In response to threats by other prisoners, the informant offered to protect the defendant if he would tell the informant the details of a rumored murder. ---- o Defendant confessed to the murder, and the informant passed the confession to the police. ---- o Court held that the confession was involuntary and hence inadmissible. Pennsylvania v. Muniz ---- o Defendant was arrested for drunk driving and taken back to the police station, where he was asked a series of questions by a booking officer. ---- o State argued that the administrative questions were not interrogation under Miranda. ---- o Court disagreed, but found a "routine booking exception."

Rhode Island v. Innis Interrogation

Based on the identification by a taxicab driver, police officers spotted and arrested Innis. Several police officers appeared on the scene, each advising Innis of his Miranda rights. However, three officers were assigned to accompany Innis to the station house. ---- o During the transport, Gleckman initiated a conversation with McKenna concerning the missing shotgun. ---- o In response to the concerns that gun could accidentally kill a child, Innis directed the officers to the missing shotgun. At issue is whether the conversation amounted to an interrogation for Miranda purposes. At the outset, the Court notes that the Miranda interrogation should not be construed narrowly. ---- o It is not limited to "express questioning." ---- o Techniques of persuasion in the custodial setting could amount to interrogation. -------- o E.g. reverse lineups. However, not all statements obtained in custody are the product of interrogation. ---- o Interrogation must reflect a measure of compulsion beyond that inherent in custody itself. ---- o Therefore, Miranda safeguards come into play whenever a person in custody is subject to express questioning or its functional equivalent. Words or actions by the police that the police should know are reasonable likely to elicit an incriminating response from the suspect. The Court finds that Innis was not interrogated within the meaning of Miranda. ---- o Conversation was not express questioning and nothing more than a dialogue between the two officers to which no response from Innis was invited. ---- o Additionally, it was not the "functional equivalent" of questioning. The officers did not carry on a lengthy harangue in the presence of the suspect. ---- o No evidence that the statements were particularly "evocative." Stevens, dissenting ---- o To provide the suspect with full protection, statements that appear to call for a response from the suspect, as well as those that are designed to do so, should be considered interrogation. ---- o In the instant case, the statement was designed to elicit a response even though it wasn't an express question.

Police Interrogation and the Miranda Revolution

Concern for reliability of confessions (at the heart of the law) Two-fold concern: (1) about the confession - how reliable is it, and (2) methods used to extract the confession - voluntariness Voluntariness requirement ---- o We don't want reliable confessions beaten out of the defendants One thought ---- o Reliability has a lot to do with looking at the 5th amendment privilege in choice terms - only offer the privilege under circumstances where the defendant has a reason to lie and give a false confession Historically speaking, what we have seen was an apparent conflict in the development of the privilege against self-incrimination and the need to interrogate suspects for the public good that may be coercive and admissions may not be voluntary 20th century cases - court tried to resolve conflict by bringing police interrogation into line with the privilege against self-incrimination by protecting this privilege of the 5th amendment even during police interrogation Tension between extending the privilege and tying the police's hands

Miranda v. Arizona

Custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. ---- o By custodial interrogation, the Court intends questioning initiated by law enforcement after the person has been taken away into custody or otherwise deprived of his freedom of action in any significant way. By procedural safeguards, the Court requires the following: ---- o Person must be warned that he has right to remain silent. ---- o Any statement that he does make may be used as evidence against him. ---- o That he has a right to an attorney, either retained or appointed. The defendant may waiver these rights, but the waiver must be made voluntarily, knowingly, and intelligently. Court notes that the technique of modern interrogation is psychological and not physical. ---- o Townsend v. Sain: defendant was a 19-year old heroin addict, described as "near mental defective." ---- o Lynumn v. Illinois: woman confessed to prevent her children from being taken to relief authorities. ---- o Haynes v. Washington: defendant not allowed to phone wife or attorney. ---- o In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures. There is no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way. In order to combat the pressure of law enforcement and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.

Moran v. Burbine Waiver

FACTS: Burbine informed of his rights; he executed a series of written waivers; he confessed to the murder; he did not request an attorney; while he was in police custody, his sister attempted to retain a lawyer to represent him; attorney telephoned the police station and was told Burbine wouldn't be questioned until the next day; interrogation that yielded inculpatory statements began that evening ISSUE: Whether either the conduct of the police or Burbine's ignorance of the attorney's efforts to reach him taints the validity of the waivers and therefore requires exclusion of confessions? HOLDING: statements allowed in; Waiver was valid REASONING: ---- o Burbine made a voluntary decision to speak with full awareness and comprehension of all the information Miranda requires the police to convey ---- o Police don't have to tell you that an attorney has been hired by family ---- o Police only have to inform a suspect of rights outlined in Miranda

Dickerson v. United States

FACTS: Congress enacted §3501 in 1968 (2 years after Miranda), which allowed for admission of self-incriminating statements as long as they are voluntary even without a Miranda warning; law is in direct conflict with Miranda ISSUE: Does Congress have constitutional authority to supersede Miranda? Did Miranda announce a constitutional rule or merely exercise its supervisory authority to regulate evidence in the absence of congressional direction? HOLDING: Miranda was a constitutional rule; Congress cannot supersede Miranda

United States v. Henry (1980) *particularly important note case*

FACTS: Henry arrested, indicted, and in his cell; cops put an informant in the cell with him; informant initiated conversation to deliberately elicit information from Henry; ISSUE: What is the 6th amendment rule with respect to interrogation? HOLDING: can't use statements against Henry; 6th amendment covers police ploys and deliberate elicitation of statements ANALYSIS: ---- o Focus is on the officer's intent - "deliberately" elicit Phrase "deliberately elicit" is the 6th amendment term for the 5th amendment interrogation

Michigan v. Jackson (1986)

FACTS: Jackson arrested; at arraignment, Jackson asks for a lawyer; ISSUE: Whether Edwards protection—invocation of right to counsel bars further police initiated questioning in 5th amendment context—extends to apply under the 6th amendment? HOLDING: Yes, once defendant invokes right to counsel, police are barred from further questioning unless initiated by defendant ANALYSIS: ---- o Once lawyer asked for by a defendant and is appointed, he cannot be questioned by police without lawyer ---- o If police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right of counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid ---- o 6th amendment right to counsel applies right when defendant requests a lawyer

Ullmann v. United States

FACTS: Ullmann was given immunity and called to testify before a grand jury; he refused to testify; he was held in contempt HOLDING: can be compelled to testify if given a grant of immunity; extends immunity to state offenses ---- o Reaffirmed Brown v. Walker Even if granted transactional immunity for that particular offense, self-incriminating testimony may still harm a person's

Oregon v. Elstad

FACTS: cops go to suspects house upon belief he committed a burglary; they paused in living room to tell mom why they were taking him; he confessed off-handedly; they arrested him, took him to the station, mirandized him, and then asked questions; he waived rights and confessed in detail ISSUE: was previous voluntary confession a violation of Miranda that could exclude incriminating testimony? HOLDING: fruit of poisonous tree doesn't apply because violation of Miranda is not a violation of the constitution

Brewer v. Williams

FACTS: defendant abducted a little girl at a YMCA; left town; spoke to attorney that told him to turn himself in, in that town; had an attorney in davenport and des moines; he was arraigned in davenport; he was told his Miranda rights; on the way from davenport to des moines the police officer made statements and appealed to his emotions to get him to tell where the little girl was; Williams told them where the body was; ISSUE: should statements and body be supressed HOLDING: testimony shouldn't be admitted, but body of girl would have been found anyway, so it is ok REASONING: ---- o Testimony not allowed because he must have been the one to initiate the conversation; here the cop initiated the conversation when his attorney wasn't around; ---- o Based on 6th amendment - after arraignment, no longer just investigating a suspect ---- o Right to attorney can be waived during questioning, but only by initiation of defendant, not by police; police must respect right to an attorney before questioning ANALYSIS: ---- o In the 6th amendment context, court focused on the fact that cops knew he didn't want to talk without an attorney If this case were to arise today, how would it come out? ---- o Was Williams in custody? - Yes, arrested and arraigned ---- o Was there an interrogation? - Yes, cop "Christian burial speech" on the merits of the case elicits a response from Williams ---- o Was he given the warnings? - Yes, multiple times Has Williams waived his rights? Valid waiver arguments: ---- o Don't need an express waiver; can be implicit in talking ---- o Invoking Miranda rights must be done by suspect, not by attorney ---- o Government may have a strong public safety argument because not sure if the girl was dead at the time Non-valid waiver arguments: ---- o Cops used trickery and coercion by taking advantage based on religious beliefs ·---- o Likely that under 5th amendment today, that statements would be allowed

Missouri v. Seibert

FACTS: defendant arrested for murder; she was interrogated; police refrained from giving Miranda warnings; cops squeeze her arm and repeatedly asked her; defendant finally admitted; cops gave her a 20 minute break, came back in, read her the Miranda rights, obtained a signed waiver, then questioned her again; she again confessed to the murder HOLDING: can't do this; first statement (clearly invalid) and second statement (as a product of the first) should have been suppressed REASONING: ---- o Cops clearly trying to circumvent Miranda ---- o Suspect was not adequately and effectively advised of the Constitutional guarantees ---- o Object of question-first is to render Miranda warnings ineffective ---- o Officer's subjective intent was to get around Miranda NOTES: ---- o Subjective component injected into Miranda

Edwards v. Arizona

FACTS: suspect invokes right to counsel; the next day officers question again after the guard tells Edwards he must talk with detectives; Edwards make incriminating statements HOLDING: incriminating statements not allowed; no waiver; abandonment of invocation of rights must be initiated by suspect REASONING: ---- o Police cannot continue questioning if a suspect invokes his right to have a lawyer; ---- o Police can only continue questioning without a lawyer present if the suspect Waiver of right to have an attorney present during questioning can only be done if the suspect initiates; cannot be shown if police continue to question

Bram v. United States (1897)

FACTS: suspect stripped naked while a detective interrogated him ISSUE: was the confession voluntary? HOLDING: Not a voluntary confession. KEY: Whether a confession is incompetent because it was not voluntary is an issue controlled by the 5th amendment ---- o KEY: 5th amendment applies before trial to involuntary confessions ANALYSIS: 2 arguments why the confession was involuntary ---- o Inherent compulsion by coercive means used to obtain confession (fear by coercion) ---- o Bram is being implicitly promised a benefit for confessing; that type of inducement will render a confession involuntary (hope of benefit) ---- o If confession is based on hope, fear, or both, rather than voluntary NOTES: ---- o Doesn't tell us how much weight is put on Bram being stripped naked ---- o If about him being stripped naked then narrow holding ---- o If about any police investigation that puts a suspect in a situation more likely to confess, then almost all police investigations would not be constitutional

New York v. Quarles Public safety exception

FACTS: woman told cops she was raped; cops saw suspect in store; suspect fled; cops saw empty shoulder holster; cops handcuffs Quarles; cop asks where the gun was; suspect tells cop; cop arrests and Mirandizes him ISSUE: Whether cop was justified in failing to comply with Miranda HOLDING: public safety exception to valid Miranda warning REASONING: cost of requiring warning is more than just evidence, but also public safety to having an uncovered gun in the store

Berghuis v. Thompkins

Facts of the case A Michigan state court convicted Van Chester Thompkins of first-degree murder, assault with intent to commit murder, and several firearms related charges. After exhausting his remedies in Michigan state court, Thompkins petitioned for habeas corpus relief in a Michigan federal district court. The district court denied the petition. On appeal, Thompkins argued that his confession was obtained in violation of the Fifth Amendment and that he was denied effective counsel at trial. The Sixth Circuit held that the Michigan Supreme Court's finding that Thompkins waived his Fifth Amendment right was unreasonable because Thompkins refused to sign an acknowledgement that he had been informed of his Miranda rights and rarely made eye contact with the officer throughout the three hour interview. The Sixth Circuit also held that the Michigan Supreme Court improperly determined that Thompkins was not prejudiced by his counsel's failure to request a limiting instruction related to his separately tried co-defendant's testimony. Question 1) Did the Sixth Circuit improperly expand the Miranda rule when it held that defendant's Fifth Amendment rights were violated? 2) Did the Sixth Circuit fail to give the state court deference when it granted habeas corpus relief with respect to defendant's ineffective counsel argument when there was substantial evidence of the defendant's guilt? Yes. Yes. The Supreme Court reversed the Sixth Circuit, holding that the state court's decision to reject Mr. Thompkins' Miranda claim was correct. With Justice Anthony M. Kennedy writing for the majority, the Court reasoned that Mr. Thompkins failed to invoke his Miranda rights to remain silent and to counsel because he failed to do so "unambiguously." Moreover, the Court reasoned that Mr. Thompkins waived his Miranda right to remain silent when he "knowingly and voluntarily" made a statement to the police. The Court further held that, even if Mr. Thompkins' counsel was ineffective, he cannot show he was prejudiced by counsel's deficient performance - a prerequisite to establishing that his Sixth Amendment right was violated. Justice Sonia Sotamayor, joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer, dissented. She reprimanded the majority for retreating from the broad protections afforded by Miranda, stating that now a criminal suspect waives his rights simply by uttering a "few one-word responses."

J.D.B. v. North Carolina

Facts of the case A North Carolina boy identified as J.D.B. was 13-year-old special education student in 2005 when the police showed up at his school to question him about a string of neighborhood burglaries. The police had learned that the boy was in possession of a digital camera that had been reported stolen.The boy was escorted to a school conference room, where he was interrogated in the presence of school officials. J.D.B.'s parents were not contacted, and he was not given any warnings about his rights under the 1966 decision in Miranda v. Arizona, such as the right to remain silent or to have access to a lawyer. J.D.B. confessed to the crimes, but later sought to have his confession suppressed on the basis that he was never read his Miranda rights. He argued that because he was effectively in police custody when he incriminated himself, he was entitled to Miranda protections. In December 2009, the North Carolina Supreme Court held that it could not consider the boy's age or special education status in determining whether he was in custody, and because he was not in custody, he was not entitled to Miranda warnings. Question Should courts consider the age of a juvenile suspect in deciding whether he or she is in custody for Miranda purposes? Yes. A divided Supreme Court reversed the lower court order in an opinion by Justice Sonia Sotomayor. The Supreme Court sent the case back to the state court to determine whether the youth was in custody when he was interrogated. (1966). "It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child's age properly informs the Miranda custody analysis," Sotomayor wrote for the majority. DISSENT: Justice Samuel Alito filed a dissenting opinion joined by Chief Justice John Roberts and Associate Justices Antonin Scalia and Clarence Thomas. "The Court's decision in this case may seem on first consideration to be modest and sensible, but in truth it is neither, Alito writes. "It is fundamentally inconsistent with one of the main justifications for the Miranda rule: the perceived need for a clear rule that can be easily applied in all cases. And today's holding is not needed to protect the constitutional rights of minors who are questioned by the police."

Salinas v. Texas

Facts of the case In 1992, Houston police officers found two homicide victims. The investigation led officers to Genovevo Salinas. Salinas agreed to accompany the officers to the police station where he was questioned for about one hour. Salinas was not under arrest at this time and had not been read his Miranda rights. Salinas answered every question until an officer asked whether the shotgun shells found at the scene of the crime would match the gun found in Salinas' home. According to the officer, Salinas remained silent and demonstrated signs of deception. A ballistics analysis later matched Salinas' gun with the casings at the scene. Police also found a witness who said Salinas admitted to killing the victims. In 1993, Salinas was charged with the murders, but could not be located. 15 years later, Salinas was finally captured. The first trial ended in a mistrial. At the second trial, the prosecution attempted to introduce evidence of Salinas' silence about the gun casings. Salinas objected, arguing that he could invoke his Fifth Amendment protection against self-incrimination whether he was in custody or not. The trial court admitted the evidence and Salinas was found guilty and sentenced to 20 years in prison and a $5,000 fine. The Fourteenth Court of Appeals, Harris County, Texas affirmed, noting that the courts that have addressed this issue are divided. The Court of Criminal Appeals of Texas affirmed. Question Does the Fifth Amendment's Self-Incrimination Clause protects a defendant's refusal to answer questions asked by law enforcement before he has been arrested or read his Miranda rights? No. Justice Samuel A. Alito announced the judgment for a divided Court. Justice Alito, joined by Chief Justice Roberts and Justice Kennedy concluded that the Fifth Amendment's privilege against self-incrimination does not extend to defendants who simply decide to remain mute during questioning. Long-standing judicial precedent has held that any witness who desires protection against self-incrimination must explicitly claim that protection. This requirement ensures that the government is put on notice when a defendant intends to claim this privilege and allows the government to either argue that the testimony is not self-incriminating or offer immunity. The plurality reiterated two exceptions to this principle: 1) that a criminal defendant does not need to take the stand at trial in order to explicitly claim this privilege; and 2) that failure to claim this privilege must be excused when that failure was due to government coercion. The opinion declined to extend these exceptions to the situation in this case. Notwithstanding popular misconceptions, the Court held that the Fifth Amendment does not establish a complete right to remain silent but only guarantees that criminal defendant may not be forced to testify against themselves. Therefore, as long as police do not deprive defendants of the opportunity to claim a Fifth Amendment privilege, there is no Constitutional violation. In a separate opinion, Justice Clarence Thomas wrote that Salinas' Fifth Amendment privilege would not have been applicable even if invoked because the prosecutor's testimony regarding his silence did not compel Salinas to give self-incriminating testimony. Justice Antonin Scalia joined in the opinion. Justice Stephen G. Breyer wrote a dissent in which he argued that Salinas' silence was enough to claim the Fifth Amendment privilege and that the majority's decision raised clear problems for uneducated defendants who may not know the explicit language necessary to protect their rights. Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan joined in the dissent.

Brown v. Walker

HOLDING: statute that compelled self-incriminating testimony, but provided transactional immunity in its place was constitutional Transactional immunity - can't prosecute the defendant for the underlying offense that relates to the testimony Use immunity & derivative use immunity- can't use the testimony or derivative fruits of the testimony against the defendant; however, can still prosecute defendant for the underlying offense (based on other evidence)

Kastigar v. United States

ISSUE: Whether the government can compel witness testimony by granting only "use and derivative use" immunity or is "transactional" immunity required? Petitioners were found in contempt after refusing to testify at a grand jury, claiming that the federal witness immunity statute was not coextensive with the Fifth Amendment privilege. ---- o Statute provided that "no testimony or other information compelled . . . may be used against the witness in any criminal case." ---- o Petitioners claim that a statute must provide transactional immunity to mirror the scope of the Fifth Amendment. Court finds that "use and derivative use" immunity is coextensive with the Fifth Amendment, and therefore is sufficient to compel testimony over a claim of privilege. Murphy v. Waterfront Commn. ---- o Petitioners refused to testify on the grounds that the testimony might incriminate them, and therefore they were granted immunity under the laws of NY. ---- o They continued their refusal to testify on the grounds that the testimony might incriminate them under federal law, for which grant did not purport to extend. ---- o Court overturned existing rule that one jurisdiction within the federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction. -------- o "A state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him." Petitioners argue that transactional immunity is required because it would be impossible to identify the "subtle ways in which the compelled testimony may disadvantage a witness." Once the witness has received "use and derivative use" immunity, the government has the burden of showing that they had an independent, legitimate source for the disputed evidence. In this regard, the immunity is the same as a coerced confession. ---- o While the confession is not admitted, prosecution is not barred and evidence admitted if law enforcement can demonstrate that the evidence was derived in a different manner. Marshall (dissenting) ---- o The immunity must place the witness in the same place as if he remained silent. ---- o Ban on use still allows the government to convict a witness on the basis of evidence derived from a legitimate independent source. ---- o Does not believe that the burden of proof required is sufficient to protect the witness.

REITERATION OF THE MIRANDA RIGHTS

If a person in custody is subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. ---- o Because the Fifth Amendment is so fundamental and the expedient of giving an adequate warning as to the availability of the privilege is so simple, the Court will not inquire into whether the person was aware of the rights without the warning. Warning to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. ---- o Warning underscores the privilege of remaining silent. Circumstances surrounding an in-custody interrogation can quickly overcome the will of the suspect; therefore, the right to have counsel present at interrogation is indispensable. ---- o Therefore, an individual held for interrogation must be clearly informed that he has the right to consult with an attorney, and if indigent, one will be appointed to represent him. ---- o If the individual states that he wants an attorney, the interrogation must cease until the attorney is present. If the interrogation continues w/o the presence of an attorney, the government has a heavy burden to demonstrate that the defendant knowingly and intelligently waived his privileges.

Review

In Miranda - trickery is ok as long as it isn't coercion in police interrogation In 6th amendment - it is a little less unsure; Henry goes one way, and Kuhlmann and McNeal go the other way Miranda right to counsel - right after arrest ---- o Relatively clear: who gets to invoke, when a waiver is proper, what police can do; trickery and deceptive tactics by police are ok 6th amendment right to counsel - right after judicial proceedings; formal charges Pay attention to the difference between 5th and 6th amendment right to counsel 6th amendment usually isn't applicable to police questioning, because most questioning happens after arrest and before formal charges

Scope of Miranda - Custody

Orozco v. Texas: Miranda applicable where the suspect was questioned in his bedroom at 4AM by four police officers. Estelle v. Smith: Miranda applied to the psychiatric examination of the defendant when warnings not given prior to the exam. Oregon v. Mathiason: defendants voluntarily went to the station houses, were not under arrest, and gave confessions there. Beckwith v US: Miranda not applicable when an investigation had focused on a suspect but the police had not made an arrest.

Watts v. Indiana

Petitioner Robert Watts was interrogated for four straight days during the day, and two of the days were spent in solitary confinement. He ended up making incriminating statements resulting in his conviction for murder. RULE: Use of a confession obtained by relentless police interrogation is a deemed involuntary and thus a violation of the due process clause of the Fourteenth Amendment.

Massiah v. United States

Petitioner was indicted for violating federal narcotics laws.He subsequently retained a lawyer, pleaded not guilty, and was released on bail. While he was free on bail, a federal agent succeeded by surreptitious means in listening to incriminating statements made by him. ---- o Colson, a co-conspirator permitted an agent to install a radio transmitter in his car so that Murphy could hear the conversation. ---- o At trial, incriminating statements were introduced despite Massiah's objections. Agent's use of the radio violated the Fourth Amendment and should be excluded under Weeks. ---- o Use of incriminating statement which the government had deliberately elicited from him after he had been indicted and in the absence of his retained counsel violated his Fifth and Sixth Amendment rights. Court relies heavily on Spano v. New York to find that that the statements could not be used. ---- o "Constitution require[s] reversal of the conviction upon the sole and specific ground that the confession had been deliberately elicited by the police after the defendant had been indicted, and therefore . . . entitled to a lawyer's help." Government argued that the statements were part of an ongoing investigation to determine who the buyers of the narcotics. ---- o Court finds that the continuing investigation was proper, just that the incriminating statements could not be used against Massiah. White, J (dissenting) Does not believe that the facts of the case evidence an unconstitutional interference with Massiah's right to counsel. ---- o Massiah not prevented from consulted with counsel. ---- o No meetings were disturbed or spied upon. At the time of the statements, Massiah was not in custody but free on bail. There was no coercion and the comments were made to his partner in crime.

Michigan v. Mosley

RULE: Miranda can not sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent. ---- o The "admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.'" ---- o Basically, if suspect says he doesn't want to talk anymore, they can resume questioning at a later time: if he asks for a lawyer, the police cannot re-initiate questioning. Waiver of right to remain silent can be shown by passage of time, and questioning on a different offense

Notes after

US v. North ---- o North gave a immunized testimony before a congressional committee on national television. ---- o The prosecutor made no direct use of the testimony and took elaborate steps to ensure that his staff avoided all exposure to the testimony. ---- o Trial witnesses were found to have been exposed to North's immunized testimony. ---- o Case remanded to the trial court with instructions to analyze the government's case "line by line" to ensure that neither its content nor the source of the testimony was derived from North's testimony. US v. Helmsley ---- o Newspaper article covering the defendant's immunized state testimony prompted a reporter to investigate the possibility that Helmsley had misappropriated corporate funds for her own use. ---- o Resulting article contributed to subsequent federal prosecution for tax fraud. ---- o Court of Appeals found the link between the immunized testimony and subsequent prosecution too attenuated to violate the Fifth Amendment. US v. Balsys ---- o Fifth Amendment does not extend to risk of prosecution by foreign nations. ---- o When there is no fear of criminal penalty, there is no protection for testimonial privacy.

US v. Patane

When officers arrested respondent, they attempted to give him his Miranda warnings, but he interrupted them, asserting that he aware of them. As such, neither officer attempted to complete the warning. Agent asked respondent about an illegal firearm. ---- o Initially, respondent refused, but after persistent questioning, respondent gave in. Respondent argues that the gun should be inadmissible as a "fruit" on an unlawful inquiry. Court reiterates that Miranda is a prophylactic remedy to protect against violations of the Fifth Amendment, and therefore, is not implicated by the admission into evidence of the physical fruit of a voluntary statement. ---- o Miranda rule is not a code of police conduct. Self-Incrimination Clause is meant to prevent an individual from being compelled to testify against himself at trial. ---- o As such, it cannot be violated by the introduction of non-testimonial evidence obtained as a result of a voluntary statement. Because prophylactic rules necessarily sweep beyond the actual protections of the Self-Incrimination Clause, any extension must be justified by its necessity for the protection of the actual right against compelled self-incrimination. Police do not violate a suspect's constitutional rights by negligent or even deliberate failures to provide the suspect with his Miranda rights. ---- o The violation occurs with the admission of the unwarned statements at trial. Because there is no unlawful police conduct to deter in these cases, the "fruit of the poisonous tree" doctrine of Wong Sun should not apply.