Beruflich Dokumente
Kultur Dokumente
Miranda Questions
• Is the suspect in custody?
o If not in custody – then there is no need to Mirandize him
o Custody occurs when there is
Application of Physical Force AND
Submission to Show of Authority
o Additional Factors that need to be considered when an encounter becomes a seizure
Length of the stop
Location of the Stop
Police Conduct during the Stop – Did the police use the least intrusive means?
• Was the suspect given all of his Miranda rights?
o All suspects must be given all rights even if they already know them or don’t want to hear them
o Suspect does not have to know which crimes he will be questioned about prior to interrogation
• What are the suspect’s choices?
o Waive his right – this must be knowing, intelligently, and voluntary
o Assert his right to silence
Police must now scrupulously honor the suspect’s right
You can bring the suspect back in several hours, but you must re-Mirandize him
There are also potential Innis issues if the officers covertly question the suspect after he has
asserted his right to silence
o Assert his right to counsel
Must be clearly articulated – if the suspect answers ambiguous, then the police must clarify
before continuing questioning
This is an Edwards trigger and you can’t continue questioning the suspect unless,
• Counsel is actually present (consultation is not enough)
• Suspect reinitiates conversation
There are also potential Innis issues if the officers covertly question the suspect after he has
asserted his right to counsel
• Police can now interrogate the suspect if he has waived his Miranda rights – hopefully this will produce
incriminating statements
6th Amendment Right to Counsel Questions
• Is the suspect formally charged?
o If formally charged, the police cannot question the suspect without counsel being present
Right to Counsel only attaches to the crime that was formally charged
o Does not matter if defendant is in custody or not – Right to Counsel attaches for the entire judicial
process
o Only the attorney, and not the defendant, can waive the right to talk without counsel present
• Counsel attaches at the time of preliminary hearing at the latest, even if the defendant does not formally ask
for an attorney – Jackson trigger
• Counsel must be present for all questioning AND corporeal identification procedures
Exclusionary Rule
• What is the primary illegality?
o Was it an illegal entry?
o Was it an illegal arrest?
o Was it an illegal search or seizure?
o Was it a Miranda violation?
o Was it a Massiah violation (6th amendment right to counsel)?
o Any information arising out the primary illegality is inadmissible – i.e. statements obtained in
violation of Miranda or items obtained during an illegal entry or search
• What is the derivative evidence? (Fruits of the Poisonous Tree)
o For 4th Amendment Violation – anything that is derived from the primary illegality will be
suppressed
o Miranda is a fruitless tree – so only statements obtained in violation of Miranda will be suppressed
o 6th Amendment violations – do these violations have any fruits that could possibly be suppressed?
• Are there any defenses available to the prosecution?
o Attenuation
How much time had passed?
What occurred during the passage of time?
How flagrant was the police behavior during the primary illegality?
o Independent Source
Witnesses and their testimony will be presumed to be sufficiently independent
Murray Case
o Inevitable Discovery
Must have exact information to show that the item would be discovered within short time
and in similar condition
Nix v. Williams