Exam 3 CJL4410

Scott v. Illinois (1979)

"no indigent [i.e. poor] criminal defendant [will be] sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointedcounsel in his defense." Essentially this means that before a judge appoints counsel, before hearing the full case, they must decide whether it is possible the defendant will be sentenced to serve time. It also means that if the individual will not be imprisoned, they are not required to be appointed counsel.

As such, in the event of an unreasonable search and seizure, there are two types of evidence that will be excluded:

1. Direct evidence—evidence directly derived from the illegal search, AND 2. Fruit of the Poisonous Tree—evidence that is discovered as a result of the unlawfully seized evidence.

To identify a suspect the police will generally use one of the following methods:

1. Lineups—which is when a victim or eyewitness is asked to view a group of individuals—usually about six—and identify which of the individuals in the group was the attacker; 2. Showups—which is when the police stage a confrontation between a victim or an eyewitness with a single suspect, and the police ask whether the suspect is the one who committed the crime; 3. Photographic Identification—which is when a victim or eyewitness is shown a set of photographs and asked to determine whether the person who committed the crime is among them; or 4. Scientific identification, which we will discuss in the next class.

As such, these forms of eyewitness identifications serve four functions:

1. May help to narrow down and identify a suspect; 2. By identifying a suspect, it will exonerate other individuals; 3. Identification may lead to filing an indictment; 4. Identification may increase confidence in the evidence against a suspect at trial.

False Confessions: WHY?

1. Police Bias—police were under pressure and focused in on the teens instead of looking for other possible suspects; 2. Age and Intelligence—First off, they were teenagers, and second, several of the teens had IQs less than 90 and may not have understood the meaning of their confession; 3. Misleading remarks and false evidence—Police supposedly told some of them they would be allowed to go home if they confessed, and others were told there was evidence linking them to the crime (which did not exist); 4. Lengthy interrogations—All of their interrogations lasted for more than 28 hours.

Hopt v. Utah (1884)

A similar ruling was adopted by the Supreme Court in Hopt v. Utah (1884) if confessions were obtained using police tactics that were deemed"sufficiently coercive..."

The Objective Test

According to Justice Felix Frankfurter in his dissenting opinion in Sherman, the test for entrapment should be on the conduct of the government, not the character of the individual. The question, according to Justice Frankfurter is "whether police conduct revealed in the particular case falls below standards to which common feelings respond, for the proper use of government power." In other words, regardless of the character of the individual there is a level at which we should expect our government to act, and, when the government's actions fall below this level of expectation, the government should be faulted, not the accused." Justice Felix Frankfurter As such, any police tactics that resort to (1) taking advantage of the accused or (2) trying to entice them into doing something which they might not otherwise do, would not be allowed. Despite this reasoning, this rule remains the minority.

Right to Remain Silent

According to the Self Incrimination Clause of the 5th Amendment: No person [...] shall be compelled in any criminal case to be a witness against himself. Essentially this means that you do not have to respond to questions which may implicate you in a crime, and your failure to answer may not be used against you.

Rhode Island v. Innis (1980)

According to the Supreme Court in Rhode Island v. Innis (1980), an interrogation involves either: 1. Express questioning—i.e. when the police question a suspect directly, OR 2. Functional equivalent—which may include "words or actions" spoken or taken by the police,which they should reasonably know would elicit an incriminating response from the suspect. The former is easy to understand; however, the latter is harder to spot. For example, in Innis, the Court found that a conversation between two police officers who were sitting in their patrol car discussing the location of a weapon which was supposedly left near a school for handicapped children and the possibility that one of the kids might find the weapon—all while the suspect was in the backseat—constituted an interrogation.

Brown v. Mississippi(1936)

After reading the transcript in Brown v. Mississippi(1936) regarding the treatment of the defendant, Justice Evans Hughes stated that it read "more like pages torn from some medieval account than a record made within the confines of a modern civilization which aspires to an enlightened and constitutional government." In order to obtain a confession, the defendant had been confronted by a lynch mob, hanged by a rope from the limb of a tree, let down, and then hung again. He was later arrested, severely whipped on his way to the jailhouse, and then finally forced to sign a confession in order to avoid being whipped again. The Supreme Court held that the Due Process Clauserequires that the treatment of defendants "shall beconsistent with the fundamental principles of liberty andJustice..." and that the cost of using police tactics which violates the Due Process Clause is the exclusion of the confession from trial.

False Confessions Data

Another issue with interrogations regards the receiving of false confessions. According to the text, "individuals isolated in interrogation rooms have been known to make false confessions..." In fact, in a study by Professors Steve Drizen and Richard Leo, out of 125 proven cases of false confessions about 67% were discovered by the criminal justice system before trial, but about 4% were convicted and sentenced to 10 years or more in prison and about 1% were sentenced to death. The other roughly 28% of defendants were convicted and sentenced to a term less than 10 years. Regardless of the outcome, false confessions have shown themselves to be a problem.

The Identification Process PROCEDURES

As such, in order to counter these pitfalls and increase the accuracy of the identification process—and in order to eliminate the possibility of undue influence or pressure by the police to identify a specific suspect—police should follow their state or federal procedures that have been put in place. These procedures may include, for example: Blind administration—where a neutral individual who is administering the identification is not informed of who the suspect is; Single eyewitness—where only one eyewitness is brought in at a time in order to identify a suspect; Sequential presentation—where only one suspect is brought in and shown to the witness at a time; Distinctive features—where the police insure thatall of the participants in the identification share similar distinctive features as was mentioned by the victim or witness; Etc....

Haynes v. Washington (1963)

As such, the Court has held that in order for a confession to be admissible it must be made: "freely, voluntarily, and without compulsion or inducement of any sort." And, according to Haynes v. Washington (1963), this will be determined by the totality of the circumstances.

Frye v. United States (1923)

As such, the traditional test for the admissibility of scientific evidence was established by the Supreme Court in Frye v. United States (1923). In Frye, the Court held that the results from a "lie detector" test were inadmissible at trial, as it had not been "sufficiently established to have gained general acceptance" in the field of research to which it belonged. By the 1970s, this test had been accepted and became the dominant test for the majority of the states. However, this dominance was shortlived...

What requirements are there for police to interrogate a defendant?

At stage 1, the defendant has been arrested, but they have not yet been read their Miranda rights. As such, they may not be interrogated by the police, absent an exception to Miranda. At stage 2, the defendant has been read their Miranda rights. As such, they may be interrogated by the police during the time leading up to the defendant's initial hearing before the judge (no later than 48 hours). However, according to Davis v. United States (1994), the interrogation must stop if the defendant explicitly and unambiguously requests to have anattorney present. The statement "I think I want an attorney", will not count. At stage 3, Following the defendant's initial appearance before a judge (or following their explicit and unambiguous request for an attorney before their initial appearance), all interrogations must stop, absent the defendant'sunprovoked and voluntary waiver. However, according to Montejo v. United States (2009), following this period, police are "free to initiate contact with a defendant" in order to provide them the "opportunity" to waive their right to legal representation. Further, according to McNeil v. Wisconsin (1991), the police may also question the defendant regarding a crime that is unrelated to the current criminal proceeding. 4. Finally, in regards to any statements or confessions obtained in accordance with all of the previous requirements, in order for it to be admissible intoevidence, the defendant's waiver of their right to counsel must have been made "voluntarily, knowingly, and intelligently" without compulsion or inducement of any sort.

Montejo v. United States (2009)

At stage 3, Following the defendant's initial appearance before a judge (or following their explicit and unambiguous request for an attorney before their initial appearance), all interrogations must stop, absent the defendant'sunprovoked and voluntary waiver. However, according to Montejo v. United States (2009), following this period, police are "free to initiate contact with a defendant" in order to provide them the "opportunity" to waive their right to legal representation

Constitutional Limits on Interrogations

Because of this, the courts have relied upon three constitutional provisions to ensure that confessions are obtained fairly. These provisions include: 14th Amendment Due Process Clause; 5th Amendment Self-incrimination Clause; AND 6th Amendment Right to Counsel.

However, despite DNA's status, there is still a cautionary tale, as even it may beprone to mistaken identity due to:

Contamination—A defendant's DNA sample may become mixed up with another person's, or it may deteriorate over time if not safeguarded correctly; Poor laboratory procedures—The laboratory may make a mistake in analysis or in calculating statistical probabilities; Significance—There may be numerous explanations for the presence of a suspect's DNA at the crime scene, and this may lead to the prosecution and eventual conviction of an innocent individual; AND Relevancy—In some circumstances, DNA is not relevant. For example, in a rape case the issue may be whether there was consent or not—not whether the defendant was the perpetrator. As such, this only highlights the fact that nothing is full proof, and even the most reliable scientific evidence can lead to misidentifications.

House v. Bell (2006)

DNA has even been used as grounds to reverse hundreds of wrongful convictions, such as in House v. Bell (2006).

State v. Woodall (1989)

DNA has gained wide spread acceptance, after having first been accepted as evidence by the West Virginia Supreme Court

The Due Process Test

Finally, even if the accused is found to have a predisposition towards crime and the jurisdiction follows the subjective test, they still may be able to claim that the actions of the government were so"unfair and outrageous that it violates the Due Process Clause of the Fifth and Fourteenth Amendments [...], and it therefore would be unjust to convict [them]." However, despite the possible existence of this defense, it has not been argued successfully. In fact, according to the Supreme Court in United States v. Russell(1973), while the possibility for this defense was left open in the event that the conduct of the police was deemed to be "so outrageous" that it would bar prosecution, most undercover techniques, however, would not fall under that description.

Who has the right to counsel?

First off, everyone has the right to counsel, but that doesn't necessarily mean that everyone will be given one... At least, they weren't always given one, because let'sface it, lawyers (or at least good lawyers) are expensive. So, if the individual couldn't afford a lawyer, the court could appoint them one...but they were not going to appoint them the best... And, in some cases, before 1963, they were not required to appoint anyone at all. That, however, changed with the Supreme Court case of Gideon v. Wainwright(1963).

Exceptions to the Rule

Following Calandra, numerous Supreme Court cases began carving out exceptions to the exclusionary rule. In each case the determination was made that the benefit from excluding the evidence—i.e. the deterrent effect—was outweighed by the burden on society for excluding the evidence. Among these exceptions now are: 1. Collateral proceedings—applies in proceedings that are not part of the formal trial—these may include parole hearings, immigration hearings, tax proceedings and other administrative hearings, and forfeiture hearings; 2. Attenuation—applies when the link between the "fruit of the poisonous tree" and the directly obtained evidence is weak based on the amount of time that has passed, any interveningcircumstances, and the intentional acts of law enforcement; 3. Good faith—applies when the evidence is unlawfully seized by anofficer acting in a "good faith belief" founded upon their objectively reasonable reliance on something which later proves to be invalid or unconstitutional, such as a warrant or a law; 4. Independent source—applies when the unlawfully seized evidence was also obtained independently through lawful means; 5. Inevitable discovery—applies when the government can prove by a preponderance of the evidence (51% certainty) that the unlawfully seized evidence would have been found eventually through lawful means; AND 6. Impeachment—allows a prosecutor to use unlawfully seized evidence or an unlawfully obtained confession to refute adefendant's statement or attack their credibility while they are onthe witness stand, because the jury should be allowed to hear evidence that is inconsistent with the defendant's testimony.

Wrongful Convictions Example

For example, in 1979 a young boy was raped. The victim told police that his assailant appeared to have been 17 or 18 years old and had a mustache and bushy sideburns. According to the victim, the manhad said his name was "Jim" or "Jimmy." The victim's uncle thought this description sounded a lotlike Jimmy Bain. Police showed the victim five or six photographs of potential suspects and he chose the one of Bain. However, of the photographs in the lineup, only Bain and one other man had sideburns. The police questioned Bain at his home at around midnight on March 5, 1974. Bain claimed that he had been at home watching television at the time of theattack, an alibi that was supported by Bain's sister. Nevertheless, the police arrested him. Despite these issues and some other problems regarding conflicting scientific evidence, no other suspects were seriously considered, and James Bain was eventually convicted of rape, burglary, and kidnapping and was sentenced to life in prison. In 2001, A Florida statute made it possible for certain cases to be reopened for DNA testing. With the aid of the Innocence Project of Florida and Tenth Judicial Circuit Public Defender Bob Young, Bain was granted access to post-conviction DNA testing. This testing later excluded Bain as the source of the DNA. On December 17, 2009, a judge signed the order releasing Bain from prison after 35 years. This case is only one among hundreds where an innocent individual was convicted based primarily on eyewitness identification.

The Subjective Test

Further in Sherman, the Supreme Court set a rather mixed precedent with 5 of the 9 judges relying upon a subjective test for entrapment and the other 4 relying upon an objective test. Given that the majority relied upon a subjective test, this test has become the majority approach for the federal government, and it has even become the majority approach for most states. As such, in order to determine the existence ofentrapment, the subjective test asks "but for theactions of the government, would the accused havebroken the law?" This test has two steps: 1. To determine whether the government induced the crime, AND Chief Justice Earl Warren 2. To evaluate whether the defendant possessed a "predisposition" to committhe crime with which they are charged. To determine whether the accused possessed a predisposition, several factors may be considered, such as: -The character or reputation of the defendant, including prior criminal arrests and convictions for the type of crime involved; -Whether the government or the accused suggest the criminal activity; -Whether the defendant was engaged in criminal activity for profit; -Whether the defendant was reluctant to commit the offense; and -The attractiveness of the inducement... Ultimately, however, under the subjective test, the issue of entrapment will be decided by the jury.

Blackburn v. Alabama (1960)

Further in Townsend v. Sain (1963), the Court found that the use of drugs, which produce the effect similar to that of a "truth serum," in order to obtain a confession would also be barred by the Due Process Clause, because it would not be the product of "rational intellect and free will." A similar rationale was also applied in Blackburn v. Alabama (1960) to a defendant with a mental illness. As such, the Court has held that in order for a confession to be admissible it must be made: "freely, voluntarily, and without compulsion or inducement of any sort."

Bram v. United States (1897)

Further, in Bram v. United States (1897), the Court held that the 5th Amendment's self- incrimination clause prevents the admission of involuntary confessions into evidence to be used against the defendant in federal courts.

Malloy v. Hogan (1897).

Further, in Bram v. United States (1897), the Court held that the 5th Amendment's self- incrimination clause prevents the admission of involuntary confessions into evidence to be used against the defendant in federal courts. Later this limitation was incorporated and applied to the states in Malloy v. Hogan (1897).

Sherman v. United States(1958)

However, according to Chief Justice Earl Warren, "[a] line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal."

United States v. Wade (1967)

However, because these procedures may not always be followed or even enough to fully protect an individual's rights, the Supreme Court in United States v. Wade (1967) held that a suspect has the right to have an attorney present during any police lineup or showup. This case was reaffirmed in Gilbert v. California(1967), and has since become known as the Wade-Gilbert rule. So far, because we've only discussed the rules that apply to showups and lineups, does a lawyer need to be present at a scientific or photographic identification? A: Nope. According to the Supreme Court, in both cases, the defendant is not present during the identification, so the need for an attorney is decreased. Further, in United States v. Wade, the Court reasoned that a lawyer isn't needed during ascientific identification, because the lab technicians can be cross-examined at trial.

The Sixth Amendment and Identifications

However, because these procedures may not always be followed or even enough to fully protect an individual's rights, the Supreme Court in United States v. Wade (1967) held that a suspect has the right to have an attorney present during any police lineup or showup. This case was reaffirmed in Gilbert v. California(1967), and has since become known as the Wade-Gilbert rule. This rule further holds that: (1) Absent a waiver, the failure of a suspect's attorneybeing present during any post-indictment lineups or showups will result in its exclusion from trial; AND (2) The prosecutor may not ask a witness to identify the suspect in court, unless the initial identification upon which it was founded satisfied the Sixth Amendment requirement above. However, this rule only applies after the individual has already been indicted—i.e. when their 6th Amendment right attached. So, what happens regarding identifications that take place before that? In Kirby v. Illinois (1972), Willie Shard was attacked by two robbers and had his wallet, which contained several traveler's checks and a social security card, stolen from him. The next day two police officers stopped Kirby and Bean, andasked them for identification, which they responded by providing Willie Shard's social security card, traveler's checks, and other identification bearing Willie Shard's name. Afterwards, they were arrested and taken to the police stationwhere Shard positively identified them without being in the presence of theirattorney. Six weeks later Kirby and Bean were indicted for the robbery... Was this identification a violation of the defendant's Sixth Amendment right? A: No. According to the Supreme Court, a suspect's Sixth Amendment right only attaches following the commencement of criminal proceedings, and so the defendants were not entitled to an attorney at the showup following their arrest, as any other rule would be too burdensome on law enforcement and would impede their investigation. So far, because we've only discussed the rules that apply to showups and lineups, does a lawyer need to be present at a scientific or photographic identification? A: Nope. According to the Supreme Court, in both cases, the defendant is not present during the identification, so the need for an attorney is decreased. Further, in United States v. Wade, the Court reasoned that a lawyer isn't needed during ascientific identification, because the lab technicians can be cross-examined at trial. Also, in United States v. Ash (1973), the Court reasoned that a lawyer isn't required to be at aphotographic display, because the lawyer is allowed to inspect the size and format of the photographs and has the opportunity to point out any biases to the jury at trial. As such, since the ruling in Ash, police have come to rely much more heavily upon photographic displays then either lineups or showups.

What does "all criminal prosecutions" even mean?

However, despite Gideon and the wording of the Sixth Amendment referring to"all criminal prosecutions," this does not mean that a defendant will be appointed an attorney for all criminal prosecutions... According to Chief Justice William Rehnquist, writing for the majority in Scott v. Illinois (1979), "no indigent [i.e. poor] criminal defendant [will be] sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense." Essentially this means that before a judge appoints counsel, before hearing the full case, they must decide whether it is possible the defendant will be sentenced to serve time. It also means that if the individual will not be imprisoned, they are not required to be appointed counsel. *Drop mic*

United States v. Calandra (1974)

However, following Mapp, the Court would continue to struggle with this decision and walk back sections stating that the rule was "an essential part" of the Fourth Amendment the Court stated thatthe exclusionary rule is "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect rather than a personal constitutional right..." While this may not seem significant, the wording in Calandra indicates that the exclusionary rule is actually more like an exclusionary guideline, which judges are not compelled to apply. So, while it's not dead, there are a lot of exceptions...

Doe v. United States (1988)

However, the right to remain silent only applies totestimonial evidence—i.e. evidence that is communicative in nature. According to the Supreme Court in Doe v. United States (1988), this type of evidence may include statements made by the defendant, which force them to "disclose information that connects [them] to a criminal offense" or which requires them to "share [their] private thoughts or beliefs with the government." This type of evidence may include: trial testimony, oral confessions to the police, and personal documents. This does not include, however, evidence which is non-testimonial in nature, such as: voice and hand writing examples; fingerprints; participation in a lineup; requiring the individual to put on clothes, walk in a straight line, or give a urine or blood sample; the examination of scars or tattoos; and the taking of photos.

Kirby v. Illinois (1972)

However, this rule only applies after the individual has already been indicted—i.e. when their 6th Amendment right attached. So, what happens regarding identifications that take place before that? Willie Shard was attacked by two robbers and had his wallet, which contained several traveler's checks and a social security card, stolen from him. The next day two police officers stopped Kirby and Bean, andasked them for identification, which they responded by providing Willie Shard's social security card, traveler's checks, and other identification bearing Willie Shard's name. Afterwards, they were arrested and taken to the police stationwhere Shard positively identified them without being in the presence of theirattorney. Six weeks later Kirby and Bean were indicted for the robbery... Was this identification a violation of the defendant's Sixth Amendment right? A: No. According to the Supreme Court, a suspect's Sixth Amendment right only attaches following the commencement of criminal proceedings, and so the defendants were not entitled to an attorney at the showup following their arrest, as any other rule would be too burdensome on law enforcement and would impede their investigation.

Central Park 5

In 1989, a 28 year old female was attacked and then raped while jogging through central park. In search of suspects police rounded up 5 African American and Latino suspects who had been arrested previously. The teens were then interrogated, and they eventually confessed. And, despite a lack of evidence and some inconsistencies in their stories, they were convicted. Thirteen years later in 2002, Matia Reyes, who was serving time for committing murder and several rapes, confessed to the crime.

Gideon v. Wainwright(1963)

In Gideon, the defendant, Gideon, had been denied the assistance of counsel andwas forced to represent himself at trial. Despite putting on an "adequate defense", he was later convicted and sentenced to do time in prison. While in prison, Gideon petitioned to the Supreme Court, by himself, arguing that he had been denied dueprocess of law by the trial court's refusal to appoint him counsel. The Court agreed, and incorporated the right to an attorney through the 14th Amendment. Justice Black, writing for the majority, stated that "any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." As such, this view reflected the ideal that "all individuals [should be] equal before the law," but that if "the ability of an individual to present a defense is based on an individual's personal wealth or income" this ideal cannot be realized.

Are police required to inform individuals of their right to a lawyer, and to what extent?

In Moran v. Burbine (1986), the defendant, Burbine, had been appointed counsel before his interrogation, and his lawyer had been attempting to reach him but had been mislead by the police. Burbine eventually provided a written confession, and was later convicted. At no time was he aware he had counsel, nor did he ask for counsel to be present during the interrogation, despite being read his rights three times. Should the defendant have been told by the police about hislawyer's attempts to reach him? A: No. Justice Sandra O'Connor According to Justice Sandra O'Connor, the purpose behind the Miranda warnings is to extinguish the "compulsion"—i.e. the unlawful pressure to confess—that is"inherent in custodial interrogation", in order to protect the individual's Fifth Amendment right to silence... As such, in regards to their right to an attorney, the police must only inform the individual of their right to an attorney—nothing more.

Stansbury v. California (1994)

In fact, according to the Supreme Court in Stansbury v. California (1994), this determination (whether the individual is in custody) will be based on the"objective circumstances of the interrogation" and whether a reasonable person, based on the totality of the circumstances, would feel free to leave.

Dickerson v. United States (2000)

In fact, most recently, Chief Justice William Rehnquist in Dickerson v. United States (2000) held that Miranda was a "'constitutional decision' that is requiredby the Fifth Amendment to insure that detainees are able to exercise their right against self-incrimination in the inherently coercive atmosphere of custodial interrogation." This means that not even Congress can mess with the Miranda requirements.

Scientific Identification

Judges have traditionally played the role of gate keepers, screening evidence before it may be presented to the jury, and this role includes the screening of scientific evidence. As such, they decide what kind of science gets in, and equally as important, what kind of science is left out.

Wolf v. Colorado (1949)

Justice Felix Frankfurter refused to incorporate the exclusionary rule and apply it to the states. Although he believed the Fourth Amendment should be incorporated, the exclusionary rule, however, was in his mind not "an explicit requirement." Instead, it was just a "judicial remedy" read into the Fourth Amendment. Further, in the Court's view, states could rely on dozens of other remedies to deter unreasonable searches and seizures, and at least 30 of the state supreme courts had rejected the exclusionary rule. As such, according to the Court "the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure" for a "prosecution in a State court for a State crime..."

6th Amendment Right to Counsel

Lawyers are extremely important to the criminal justice system. In fact, they are so important, that the Founders wrote their importance into the Constitution—take that doctors! As such, the Sixth Amendment states that "in all criminal prosecutions, the accused shall enjoy the right [...] to have the assistance of counsel for his defense." But, what do those words really mean? Because, although the right to counsel may seem simple, it's actually kind of complicated. For example, some of the issues regarding the right to counsel include: Who has the right to counsel; What does "all criminal prosecutions" mean; When does the right attach, and when must a lawyer be present; Whether police are required to inform individuals of their right to a lawyer—and, if so, to what extent; and What requirements are there for police to interrogate a defendant?

Invoking and Waiving Miranda

Let's assume now that the individual is in custody and that they have been read their rights, what would they need to do to get the police to stop asking them questions, and what would the police have to do after? Well, Chief Justice Earl Warren in Miranda briefly discussed that an individual needs to do something in order to indicate that they wish to remain silent (or not), but he did not go into that much detail on what to do or how to do it. However, the Court in Davis v. United States (1994) did make it clear that the individual must articulate this wish "sufficiently clear that a reasonable police officer inthe circumstances would understand..." As such, a statement, such as "I think I want a lawyer", is not enough. Justice Souter argued in his concurring opinion thatthis rule would have a detrimental impact on the poor and uneducated... However, despite Justice Souter's argument in Davis, the Court continued on this line of reasoning. For example, the Court, in Berghuis v. Thompkins (2010), held that "an accused who wants to invoke his or her right to silence is required 'to do so unambiguously.'" Essentially, in order to invoke your right to silence, you cannot just "remain silent." Also, in order to waive your right to silence, you must also be clear. Further, according to the Court in Colorado v. Connelly (1986), in order for the Court to accept a defendant's waiver, the prosecution must prove by apreponderance of the evidence (51%) that the defendant did so knowingly, voluntarily, and intelligently. The question, however, is whether the individual may waive their right to silence after they have already invoked it... According to the Supreme Court in Michigan v. Mosley (1975), the answer seemed obvious... Yes. But, in order to accept the subsequent waiver, the police would have had to have"scrupulously honored" the defendant's initial invocation of their right to silence. This means that after the initial invocation the police had to have: -Immediately ceased questioning; -Suspended interrogation for a significant period; -Provided a "fresh set" of Miranda warnings before resuming the interrogation; AND -The second interrogation must have focused on a crime different in time, nature, and place... As such, the main consideration is whether the police actually respected the defendant's "right to cut off questioning" or whether they were simply engaging inrepeated efforts to wear down their resistance.

When does that right attach, and when must a lawyer be present?

Okay. So, let's assume that you are a criminal defendant, and it is possible that you will serve time or you are rich enough to afford an attorney whenever you want...At what point in the criminal justice process does your right to an attorney attach? In Massiah v. United States (1964), two suspects, who had previously been arrested, had just been released on bail. One of the accused agreed to cooperate with the police and allowed them to install a wire in his car, so that he could obtain a confession from the other defendant, Massiah. Their plan worked, and at trial an FBI agent testified to what he had heard. After he was convicted, Massiah appealed to the Supreme Court. Justice Potter Stewart siding with Massiah, stated that after Massiah was indicted, he was entitled to a lawyer and to a determination of guilt before a judge and jury. Essentially, once the defendant was indicted, all investigations to obtain incriminating information must stop. A similar rationale was also reached by Justice Arthur Goldberg in Escobedo v. Illinois (1964). This case involved a young defendant who had repeatedly been denied access to his attorney, while being interrogated by the police. And, despite Escobedo's attorney arriving atthe police station and trying to reach his client, the police kept telling Escobedo that his attorney "didn't want to see him." Eventually, after a long interrogation, Escobedo made some incriminating statements and was later formally indicted. Justice Arthur Goldberg held that even though these occurrences took place before the indictment, "Escobedo was [still] entitled to be informed of his right to silence and counsel under the Sixth Amendment..." as this was the time period that most interrogations took place and when most confessions were obtained. This distinction was later overshadowed by the Court's decision in Miranda, which came to protect a defendant'srights from the moment they are arrested, and so, following this decision, very little was added by the Court as to when their right to an attorney attaches. Finally, in Rothgery v. Gillespie County (2008), the Court held that the defendant's right to counsel formally attaches upon their "initial appearance before a judicial officer," which can be no later than 48 hours after their arrest (i.e. Gerstein "probable cause" hearing). Before this time period, they are protected from unlawful interrogations under Escobedo, and after this time, absent the defendant's waiver, their lawyer must be present at every single critical stage of the prosecution, which is considered to be "any phase of the prosecution that may negatively impact the defendant's ability to present a defense at trial..."

When is a defendant in custody?

Recall back to the lecture we had on "Seizures of the Person" from module 3 and "Terry Stops" from module 4, and refer back to the sliding scale we discussed between Terry stops and Arrests. Essentially, custody should fall somewhere closer to the side of arrest. A custodial interrogation then would be when the police are questioning a suspect who has been placed in custody... duh! However, its not that simple, because while an individual being questioned following their arrest (i.e. the opposite of a Terry Stop) would almost certainly constitute a custodial interrogation, the individualdoes not have to have been formally arrested to be considered "in custody".

Despite the negative aspects, there is a benefit to relying upon undercover techniques, which could lead to an accusation of entrapment, for example:

Some crimes are difficult to investigate without using informants, such as prostitution, public corruption, and crimes related to the illegal sale of alcohol, cigarettes, firearms, or narcotics. Some undercover techniques, such as posing as a buyer, can lead to a large number of arrests without using up a large amount of resources; and There may be somewhat of a deterrent effect in some areas of crime if the criminals believe thatlaw enforcement officials may be amongst them...

Watts v. Indiana (1949)

The Court also held in Watts v. Indiana (1949) that the use of specific police procedures which "violate the basic notions of our accusatorial mode of prosecuting crime" is barred by the Due Process Clause

Due Process and Voluntariness

The Due Process Clause, as we've discussed throughout the semester, has been implemented by the courts to ensure that the way in which individuals are treated by the police and the criminal process is fair. As such, the same constitutional provision also plays a role in the function of interrogations, and, from this provision, the courts have adopted the Voluntariness Test.

Elkins v. United States (1960)

The Silver Platter Doctrine changed when the Supreme Court decided this case the Supreme Court killed the Silver Platter Doctrine, ruling that the Fourteenth Amendment's due process clause prohibits unreasonable searches and searches by state officials. The Court further held that federal prosecutors may not accept illegally obtained evidence from federal or state agents. However, despite the changes made, Elkins did not explicitly overrule Wolf in regards to the exclusionary rule.

Silver Platter Doctrine

The Wolf decision, however, led to some unintended consequences. While federal prosecutors could not rely upon illegally obtained evidence gathered by federal law enforcement, they could accept this same evidence if it were obtained by state law enforcement. it was essentially a work around the Weeks decision.

Miranda v. Arizona (1966)

The issue, however, in insuring the right to remain silent came up in regards to police interrogations. In Miranda v. Arizona (1966), Ernesto Miranda was being held in police custody for allegedly raping an 18 year old woman. While in custody he was interrogated by two police officers. Two hours later the officers emerged from the interrogation room with a written confession signed by Miranda. The officers admitted that Miranda was not advised about his rights; however, his confession read that he had "full knowledge of [his] legal rights..." He was convicted and sentenced to 20 to 30 years. He appealed his conviction arguing that the failure of police to advise him of his rights resulted in a violation of his right against self-incrimination. The Court agreed. Chief Justice Earl Warren, writing for the majority, heldthat "if a person in custody is to be subjected tointerrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent[... and] that he has the right to consult with a lawyer and to have a lawyer with him during interrogation...[And,] if he is indigent, [he must also be told that] a lawyer will be appointed to represent him." He further stated that "such a warning is an absoluteprerequisite in overcoming the inherent pressures of theinterrogation atmosphere..." As such, once theindividual invokes this right [to remain silent], "anystatement taken after [...] cannot be other than the product of compulsion..."Essentially the court will assume compulsion if questioning continues. Likewise, if the individual requests an attorney, all questions again must stop until an attorneyis present, and, if the individual cannot afford one, the police must simply wait... It is not all that surprising that the Court's decision in Miranda was not all that popular, but it has been reaffirmed many times since it was decided.

Michigan v. Mosley (1975)

The question, however, is whether the individual may waive their right to silence after they have already invoked it... According to the Supreme Court in Michigan v. Mosley (1975), the answer seemed obvious... Yes. But, in order to accept the subsequent waiver, the police would have had to have"scrupulously honored" the defendant's initial invocation of their right to silence. This means that after the initial invocation the police had to have: -Immediately ceased questioning; -Suspended interrogation for a significant period; -Provided a "fresh set" of Miranda warnings before resuming the interrogation; AND -The second interrogation must have focused on a crime different in time, nature, and place... As such, the main consideration is whether the police actually respected the defendant's "right to cut off questioning" or whether they were simply engaging inrepeated efforts to wear down their resistance.

Rex v. Warickshall (1783).

The voluntariness test was first established in England from the case Rex v. Warickshall (1783). As such, in the late eighteenth century, the English judges, worried about convicting innocent individuals due to corrupt police practices, ruled that in order for a confession to be admissible it must not have been obtained through: The "threat or application of force", A "false promise not to prosecute," OR A "promise of lenient treatment."

The Identification Process

There are three steps involved in identification, each of which may lead to pitfalls: 1. Perception—Refers to the observation of the crime. This stage may lead to an increase in the number of misidentifications if: -The crime is committed relatively quickly; -The victim is too nervous to focus on relevant features of the offender (especially if the offender is of a different race than the victim); or -The victim has subconscious biases and expectations regarding the offender's race, ethnicity, or religious or national orientation... 2. Memory—Refers to remembering the crime. Unlike a recorded video, however, memories often fade and may even change over time. Also, the power of suggestion has the potential to alter memories unknowingly. 3. Identification—Refers to the retrieval of information from memory. This may involve selecting a suspect who most closely resembles the individual in their mind. As such, in order to counter these pitfalls and increase the accuracy of the identification process—and in order to eliminate the possibility of undueinfluence or pressure by the police to identify a specific suspect—police should follow their state or federal procedures that have been put in place.

Wrongful Convictions

There is no doubt that some crimes are heinous, and that those who commit them deserve to be punished. It may also seem that asking the victim "who did this to you?" may be the best source to turn to in order to obtain an identification. However, no matter how heinous the crime and no matter how confident the victim or witness may be in who they believe committed the crime, police and prosecutors should be wary to rely upon eyewitness identification alone, as it is one of the least reliable forms of evidence.

The Due Process Test - Eyewitness Identification

Therefore, given the rulings regarding pre-indictment identifications without thedefendant's presence required, some defendants can easily find their Sixth Amendment protections limited. However, there is one last line of defense... According to the Supreme Court in Stovall v. Demo (1967), defendants are protected throughout the criminal justice process against any identification procedure that "creates a likelihood that an innocent individual will be misidentified and deprived of life or liberty without due process of law. As such, the due process test will apply regardless of whether it is a lineup, showup, or photographic display, whether pre- or post-indictment. Further, in Manson v. Braithwaite (1977), the Court adopted a totality of the circumstances approach to determine whether the identification procedures usedby the police violated the defendant's due process rights. Further, in Brathwaite, in order to prove a violation of the defendant's due processrights occurred, the Court established a four part test: 1. The defendant must prove based on a preponderance of the evidence that a particular identification procedure was impermissibly suggestive; 2. The prosecution must then demonstrate that the procedure is reliable—i.e. that it can be trusted; 3. Next, the judge must consider the following factors to determine based on the totality of the circumstances whether the procedure is, in fact, reliable: -Perception—the witnesses' observation of the offender during the crime; -Concentration—the witnesses' ability to focus on the offender's appearance; -Accuracy—the accuracy of the witnesses' description of the suspect; -Certainty—the confidence of the witness in their identification; -Time—the amount of time that has passed; AND Any other evidence the defendant was involved. 4. Finally, these factors must be weighed against the suggestiveness of the procedure.

Escobedo v. Illinois (1964)

This case involved a young defendant who had repeatedly been denied access to his attorney, while being interrogated by the police. And, despite Escobedo's attorney arriving atthe police station and trying to reach his client, the police kept telling Escobedo that his attorney "didn't want to see him." Eventually, after a long interrogation, Escobedo made some incriminating statements and was later formally indicted. Justice Arthur Goldberg held that even though these occurrences took place before the indictment, "Escobedo was [still] entitled to be informed of his right to silence and counsel under the Sixth Amendment..." as this was the time period that most interrogations took place and when most confessions were obtained.

Malloy v. Hogan(1964)

This right to remain silent was incorporated to the states in Malloy v. Hogan(1964). This incorporation reflects the notion that our right to silence is fundamental to our concept of ordered liberty, because it is an indicator of the value we place on our right to privacy, for it is that which we wish to keep most secret that we maintain our greatest desire for silence. It also fits into theconcept we've discussed earlier in the module that a criminal trial is like an experiment, and, if the government wishes to find a defendant guilty of a crime, they will have to prove it with or without the defendant's help.

Forensic Science and DNA Evidence

Today there are many different forms of scientific evidence that is generally admissible in court, to include: hand writing and voice pattern analysis, ballistics,finger prints, foot prints, etc... However, the holy grail of them all is DNA evidence... DNA, which stands for deoxyribonucleic acid, is a molecule that contains an individual's unique geneticcode, which can be extracted from hair, blood, bone, teeth, and saliva and used to connect a suspect to a crime. DNA has gained wide spread acceptance, after having first been accepted as evidence by the West Virginia Supreme Court in State v. Woodall (1989), and it has even been used as grounds to reverse hundreds of wrongful convictions, such as in House v. Bell (2006). However, according to District Attorney's Office v. Osborne (2009), whether or not a defendant is entitled access to such evidence is an issue to be decided by a state's legislature.

Gilbert v. California(1967)

Wade-Gilbert rule. This rule further holds that: (1) Absent a waiver, the failure of a suspect's attorneybeing present during any post-indictment lineups or showups will result in its exclusion from trial; AND (2) The prosecutor may not ask a witness to identify the suspect in court, unless the initial identification upon which it was founded satisfied the Sixth Amendment requirement above. However, this rule only applies after the individual has already been indicted—i.e. when their 6th Amendment right attached. So, what happens regarding identifications that take place before that?

Public Safety Exception

While the court has been generally flexible on what constitutes a sufficient Miranda warning, once the individual is in custody the police must advise them oftheir rights in some way that the court may consider them to be "clearly informed"—with one exception. According to the Supreme Court in New York v. Quarles (1984), if: 1. There is a "reasonable need to protect the police or the public", 2. Based on an officer's reasonable belief that a threat is immediate, 3. They may ask questions directed at public safety (not regarding guilt or innocence), and 4. Any statements elicited must not be the product of police compulsion. The Court is essentially saying that the need for public safety may in some circumstances outweigh the individual's right against self-incrimination. This decision has since been interpreted very broadly, which runs the risk that it may be used by police to side-step Miranda.

Sorrells v. United States (1932)

an individual claiming to be a thirsty tourist approached Sorrells. The two quickly struck up a friendship, and after a while, the individual asked Sorrells if he could to locate him some illegal alcohol. Unbeknownst to Sorrells, the individual was actually an undercover prohibition officer... So, upon receiving the alcohol, the officer revealed himself and then placed Sorrells under arrest. Following his conviction, Sorrells appealed, and his case was eventually heard by the Supreme Court, who later overturned it on thegrounds of "entrapment". The Supreme Court defined entrapment as the "conception of an offense by an officer, and theprocurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer." Essentially, the government is turning innocent individuals into criminals in order to arrest them.

Stovall v. Demo (1967)

defendants are protected throughout the criminal justice process against any identification procedure that "creates a likelihood that an innocent individual will be misidentified and deprived of life or liberty without due process of law. As such, the due process test will apply regardless of whether it is a lineup, showup, or photographic display, whether pre- or post-indictment.

Davis v. United States (1994)

did make it clear that the individual must articulate this wish "sufficiently clear that a reasonable police officer inthe circumstances would understand..." As such, a statement, such as "I think I want a lawyer", is not enough. Justice Souter argued in his concurring opinion thatthis rule would have a detrimental impact on the poor and uneducated...

United States v. Russell(1973)

due process test while the possibility for this defense was left open in the event that the conduct of the police was deemed to be "so outrageous" that it would bar prosecution, most undercover techniques, however, would not fall under that description.

The Exclusionary Rule

essentially functions as a means to keep the game fair—to exclude the bad evidence and only include the good stuff "provides that evidence obtained as aresult of a violation of the Fourth Amendment prohibition on unreasonable searches and seizures is inadmissible in a criminal prosecution to establish adefendant's guilt." The rule remains controversial, as many in the general public believe this rule willeventually result in a criminal's release back out on the street to commit morecrimes, even though there is evidence (although unlawfully seized) to prove their guilt.

Berghuis v. Thompkins(2010)

held that "an accused who wants to invoke his or her right to silence is required 'to do so unambiguously.'" Essentially, in order to invoke your right to silence, youcannot just "remain silent." Also, in order to waive your right to silence, you must also be clear.

New York v. Quarles (1984)

if: 1. There is a "reasonable need to protect the police or the public", 2. Based on an officer's reasonable belief that a threat is immediate, 3. They may ask questions directed at public safety (not regarding guilt or innocence), and 4. Any statements elicited must not be the product of police compulsion. The Court is essentially saying that the need for public safety may in some circumstances outweigh the individual's right against self-incrimination. This decision has since been interpreted very broadly, which runs the risk that it may be used by police to side-step Miranda.

Colorado v. Connelly (1986)

in order for the Court to accept a defendant's waiver, the prosecution must prove by a preponderance of the evidence (51%) that the defendant did so knowingly, voluntarily, and intelligently. The question, however, is whether the individual may waive their right to silence after they havealready invoked it...

Manson v. Braithwaite (1977)

the Court adopted a totality of the circumstances approach to determine whether the identification procedures usedby the police violated the defendant's due process rights. Further, in Brathwaite, in order to prove a violation of the defendant's due processrights occurred, the Court established a four part test: 1. The defendant must prove based on a preponderance of the evidence that a particular identification procedure was impermissibly suggestive; 2. The prosecution must then demonstrate that the procedure is reliable—i.e. that it can be trusted; 3. Next, the judge must consider the following factors to determine based on the totality of the circumstances whether the procedure is, in fact, reliable: -Perception—the witnesses' observation of the offender during the crime; -Concentration—the witnesses' ability to focus on the offender's appearance; -Accuracy—the accuracy of the witnesses' description of the suspect; -Certainty—the confidence of the witness in their identification; -Time—the amount of time that has passed; AND Any other evidence the defendant was involved. 4. Finally, these factors must be weighed against the suggestiveness of the procedure.

Townsend v. Sain (1963)

the Court found that the use of drugs, which produce the effect similar to that of a "truth serum," in order to obtain a confession would also be barred by the Due Process Clause, because it would not be the product of "rational intellect and free will."

Beecher v. Alabama (1967)

the Court held that a confession was inadmissible due to extreme coercion, the Alabama prosecutor produced another coerced confession and prosecuted the defendant again, to which the defendant was later convicted and sentenced to death. The Court again in Beecher v. Alabama (1972) ruled that the second confession wasalso inadmissible, stating that a "realistic appraisal of the circumstances of this case compels the conclusion that this petitioner's [confession was] the product of gross coercion." Following, the Court then overturned the defendant'ssecond conviction holding that "[u]nder the Due Process Clause of the Fourteenth Amendment, no conviction tainted by a confession so obtained can stand."

Rothgery v. Gillespie County (2008)

the Court held that the defendant's right to counsel formally attaches upon their "initial appearance before a judicial officer," which can be no later than 48 hours after their arrest (i.e. Gerstein "probable cause" hearing). Before this time period, they are protected from unlawful interrogations under Escobedo, and after this time, absent the defendant's waiver, their lawyer must be present at every single critical stage of the prosecution, which is considered to be "any phase of the prosecution that may negatively impact the defendant's ability to present a defense at trial..."

United States v. Ash (1973)

the Court reasoned that a lawyer isn't required to be at aphotographic display, because the lawyer is allowed to inspect the size and format of the photographs and has the opportunity to point out any biases to the jury at trial. As such, since the ruling in Ash, police have come to rely much more heavily upon photographic displays then either lineups or showups.

Mapp v. Ohio (1961)

the Supreme Court finally applied the exclusionary rule to the states by incorporating it through the Fourteenth Amendment using the same argument as was made in Weeks. However, following Mapp, the Court would continue to struggle with this decision and walk back sections stating that the rule was "an essential part" of the Fourth Amendment

Daubert v. Merrell Dow Pharmaceutical (1993)

the Supreme Court, believing that the Frye test may have been too exclusive of reliable yet newer forms of science, developed an alternative test by requiring the judge to study the research and views of experts and then ask themselves whether the scientific evidence is: (1) Reliable and (2) Will assist the "trier of fact (i.e. the jury) to understand the evidence or to determine a fact in issue." Today, the states are split between the Frye and Daubert tests, with 23 accepting the Frye test, 21 accepting the Daubert test and the remaining states following their own standards. However, generally both tests will come to the same conclusions. As astrology, for example, would not be accepted under either test.

Moran v. Burbine (1986)

the defendant, Burbine, had been appointed counsel before his interrogation, and his lawyer had been attempting to reach him but had been mislead by the police. Burbine eventually provided a written confession, and was later convicted. At no time was he aware he had counsel, nor did he ask for counsel to be present during the interrogation, despite being read his rights three times. Should the defendant have been told by the police about his lawyer's attempts to reach him? A: No. Justice Sandra O'Connor According to Justice Sandra O'Connor, the purpose behind the Miranda warnings is to extinguish the "compulsion"—i.e. the unlawful pressure to confess—that is "inherent in custodial interrogation", in order to protect the individual's Fifth Amendment right to silence... As such, in regards to their right to an attorney, the police must only inform the individual of their right to an attorney—nothing more.

Davis v. United States (1994)

the interrogation must stop if the defendant explicitly and unambiguously requests to have anattorney present. The statement "I think I want an attorney", will not count.

Weeks v. United States (1914)

the police arrested Weeks and then searched his home without a warrant. After Weeks was in custody, police returned to his home (still without a warrant) and searched it a second time. The evidence from that second search was later used to convict him. According to Justice William Day, the introduction of this evidence from the second search violated the Fourth Amendment. He also stressed that if this information can be seized and introduced as evidence in trial the Fourth Amendment has "no value" and "might as well bestricken from the Constitution. As such, the Supreme Court held that "evidence seized in the course of an unreasonable search that violates the Fourth Amendment is to be excluded from the evidence in federal courts."

McNeil v. Wisconsin (1991)

the police may also question the defendant regarding a crime that is unrelated to the current criminal proceeding

Massiah v. United States (1964)

two suspects, who had previously been arrested, had just been released on bail. One of the accused agreed to cooperate with the police and allowed them to install a wire in his car, so that he could obtain a confession from the other defendant, Massiah. Their plan worked, and at trial an FBI agent testified to what he had heard. After he was convicted, Massiah appealed to the Supreme Court. Justice Potter Stewart siding with Massiah, stated that after Massiah was indicted, he was entitled to a lawyer and to a determination of guilt before a judge and jury. Essentially, once the defendant was indicted, all investigations to obtain incriminating information must stop.

District Attorney's Office v. Osborne (2009)

whether or not a defendant is entitled access to such DNA evidence is an issue to be decided by a state's legislature.