POLICE INTERROGATION AND FIFTH AMENDMENT LIMITS

10/24 Police Interrogation: Application of Miranda

I. Due Process
A. Use of physical force→ Brown v. Mississippi
B. Lengthy interrogations; deprivation of needs→ Ashcraft; Payne
C. Threats of force→ Arizona v. Fulminante
D. Psychological pressure→ Spano v. N.Y.
E. BUT:
1. Deception allowed
2. Must be police coercion Colorado v. Connelly
F. Shortcomings of the Voluntariness Test
1. Case by case method
2. Not enough guidance for lower courts
3. Police needed more guidance
4. Custodial interrogation inherently coercive
5. Inconsistency in courts’ decisions
6. Judges frustrated with law enforcement
7. Shift from Due Process to → 5th Amendment and Miranda
II. Miranda v. Arizona (1966)
A. The Need for a Prophylactic Approach
1. Inherently coercive atmosphere of custodial interrogations
2. Need something more, given police tactics
a) Psychological pressure
b) Shortcomings of due process
3. Looked at what FBI and some states had adopted
4. Focused on role of lawyer in dissipating coercion
B. 5-4 decision
1. CJ Warren
a) Suggests not a radical departure
b) Building on “Escobedo”
c) Needed as a prophylactic measure
d) Knows its controversial
C. Rights
1. To counsel→ 5th Amendment
2. To remain silent/self incrimination→ 5th Amendment
D. When does it apply?
1. When someone is in police custody; and
a) “Custodial”
(1) Orozco v. TX
(a) May be in “custody” in own home if you aren’t free to leave
(2) Oregon v. Mathiason
(a) Not every interrogation requires miranda rights
(b) Voluntarily agreeing to interview at police station is not a custodial interrogation
(3) Beckwith v. U.S.
(a) Interview with IRS agent is NOT “custodial”
(4) Minnesota v. Murphy
(a) Meeting with probation officer NOT custodial
 (5) Objective Standard: Would a reasonable person feel free to leave?
2. Being interrogated
III. Post- Miranda
A. Current Interrogation Tactics
1. Mental and psychological coercion
a) Isolation
b) Presume guilty
c) Trickery
d) Minimize/exaggerate consequences
B. Congressional Reaction→ 1968, two years after Miranda
1. 18 U.S.C. § 3501
a) Tried to overrule Miranda
b) “A confession shall be admissible in evidence if it is voluntarily given”
c) Warnings are just a factor
d) DOJ ignored because of concerns
C. Dickerson v. United States (2000)
1. Miranda warnings may be “prophylactic”, but they are also constitutionally based
2. Stare decisis→ embedded in routine police practice
3. RULE: Congress cannot legislatively supersede a decision by the United States Supreme Court that
interprets and applies the Constitution. Reaffirmed Miranda and struck down 18 U.S.C. § 3501
a) Chevron deference→ defer to agency, congress can overrule supreme court decision by
statute ONLY IF the decision is not interpreting the constitution, Miranda interpreted the
constitution so it cannot be overruled by statute
4. Scalia dissent
a) Miranda is only a prophylactic rule
b) Not constitutionally based
c) Rulemaking by the court; anti-democratic
D. J.D.B. v. North Carolina
1. Have always treated minors differently
2. If age is known or would be objectively apparent to the officer
3. Age of a child suspect is relevant, but not determinative, to decide whether suspect is in “custody” for
Miranda purposes
4. RULE: The age of a child subjected to police questioning is relevant to whether the child is in custody
under Miranda.
E. Factors to decide if “in custody”
1. Physically free to leave?
2. Use of force, show of guns?
3. Informed free to leave?
4. Allowed to leave?
5. Δ initiated contact?
6. Atmosphere of questioning
7. When placed under arrest?
8. Experience of suspect
9. Age of suspect
F. Berkemer v. McCarty
1. Ordinary traffic stops do NOT require Miranda rights to question about reason for stop
a) “Have you been drinking?”
b) Field sobriety tests
c) Presumptively brief, in public, only 1 or 2 officers
 2. Rights required only if full, custodial arrest

10/26- Police Interrogation: Consequences and Waiver

I. What is an Interrogation?
A. Rhode Island v. Innis
1. Conversation between the two officers, Δ was not asked any questions by the officers
2. RULE: Unless police officers reasonably should know that their comments will elicit an incriminating
response from a suspect, comments made between police officers in the presence of a suspect do not
constitute interrogation for the purpose of Miranda
a) Miranda “interrogation” means suspect is subject to questioning or its functional equivalent
b) Perceptions of suspect more relevant that the intent of the officer(s)
B. Arizona v. Mauro
1. RULE: No Miranda rights of a non-police person speaks to Δ; Police have not conducted an interrogation
if, without orchestrating the conversation as a ploy to elicit incriminating statements, they allow a suspect
to hold a conversation about a crime and record the conversation for use as evidence.
a) Not coercive atmosphere, police can use ploys
C. Illinois v. Perkins
1. RULE: An undercover officer does not have to provide Miranda warnings to an incarcerated person
before engaging in questioning that could induce incriminating statements. Questioning by undercover
agent does not require Miranda rights because stealth officer does not create police-dominated
environment
a) Miranda doesn’t forbid strategic deception by taking advantage of a suspect’s misplaced trust–
“False friend”, inmate assumes risk
II. Summary of Miranda
A. Requirements to trigger Miranda:
1. Custody– not free to leave
2. Interrogation by someone known to be police officer
a) Express questioning, or
b) Functional equivalent (reasonably likely to elicit incriminating response)
III. What is Required of Police Under Miranda?
A. Step One: Before there is “custodial interrogation” the Δ must be warned of rights:
a) Right to remain silent
b) Anything said can be used against Δ
c) Right to counsel before and during interrogation
d) Right to have counsel appointed prior to questioning if Δ cannot afford one
2. Possible Alternatives to Miranda
a) Damages suits
b) Videotape confessions
c) Objective witnesses to confessions (station lawyers, ombudsman(
d) Broaden Due Process standard
(1) None of ^ have been found to be sufficient yet and Dickerson suggests that they won’t be
3. Hypo
a) Not in custody because a reasonable person would have felt free to leave
4. Custodial Interrogation
a) Custodial
(1) Objective standard- would reasonable person feel free to leave
(2) Can consider age of suspect (J.D.B)
(3) Totality
b) Interrogation
 (1) Reasonably likely to elicit incriminating response (Innis)
(2) Suspect must know questioner is police officer (Perkins)
B. Step Two: Proper Miranda warnings
1. No “talismanic incantation” required
a) California v. Prysock and Duckworth v. Eagan
(1) Exact language is not required for a valid Miranda warning as long as the rights are
effectively communicated to suspect
C. Step Three: If Miranda rights were not properly given, what are the consequences?
1. No fruit of the poisonous tree because they can be remedied
a) Illegal confession→ leads to witnesses
(1) Exclusionary rule does not apply Michigan v. Tucker
b) Illegal confession→ later properly warned confession
(1) ER does not apply→ Oregon v. Elstad
(2) Exception: deliberately evades Miranda Rule→ Misssouri v. Seibert
c) Illegal confession→ leads to physical evidence
(1) ER does not apply Patane
2. Waivers
a) NC v. Butler
(1) Advised of rights, acknowledged he understood, but refused to sign waiver
(2) Then made inculpatory statements
(3) RULE: Implied waiver is sufficient where Δ’s silence coupled with an understanding of
rights and a course of conduct indicating waiver
b) Moran v. Burbine
(1) Events outside of suspects presence and unknown to suspect do not make a waiver
involuntary- have no impact
c) Spring v. Colorado
(1) Waiver is still valid even if suspect is not told the nature of crimes for which he is under
suspicion
d) Summary
(1) Express or implied- Butler
(2) Look at totality of the circumstances- Fare
(3) Suspect need not be told that counsel was waiting Burbine
(4) No need to advise suspect on nature of charges Spring
e) Berghuis v. Thompkins
(1) Implicit waiver/waiver by speaking
(2) Δ began answering questions after 2.5 hours of silence
(3) Waiver inferred from him starting to speak
(4) If he wanted to invoke right to remain silent, he was required to say so
f) Inferences from Silence
(1) Griffin- cannot draw negative inference by Δ not testifying at trial
(2) Miranda custodial interrogation silent- cannot draw negative inference by Δ refusing to
answer questions
(3) Pre Miranda silence- can draw negative inference
g) What about waiver after a defendant invokes his Miranda rights?
(1) Depends on which right is invoked
(a) Right to remain silent, OR
(i) Michigan v. Moseley→ Miranda’s promise that rights be “scrupulously
honored” does NOT mean that the assertion of rights lasts forever
 (a) If Δ invokes right to remain silent, police can re-interrogate if
separate warnings and Δ voluntarily waives
(b) Right to counsel under 5th
(i) More worried about police presume
(a) Δ has already expressed the need for lawyer to even playing field
(b) Tougher standard to reinitiate questioning
(ii) Edwards v. Arizona→ If Δ has invoked right to counsel, police cannot
re-initiate interrogation→ BRIGHT LINE RULE
(a) ONLY Δ can reinitiate interrogation Reaffirmed in MI v.
Jackson,
(iii) Minnnick v. MS→ Lawyer has to be present during questioning, not
enough for lawyer just to talk to client
(iv) Cutting back on Edwards
(a) Maryland v. Shatzer
(i) Edwards presumption does NOT last forever
(ii) Police can interrogate after invocation of 5th right to
counsel in 14 day “break in custody:
(iii) Sending Δ back to general population jail = break in
custody
(v) How clear does invocation of right to counsel need to be to trigger
Edwards protections?
(a) See slides
(2) Impeachment
(a) Harris v. NY
(i) Allows Miranda poor statements for impeachment purposes
(ii) 5th Amendment privilege does not encompass the right to commit
perjury
(3) Public Safety Exception
(a) NY v. Quarles
(i) Threat of immediate danger- objective standard
(ii) O’Connor: Keep out statement but let in gun (pre- Patane)
(iii) Dissent: Keep out both

11/2/23 Police interrogation: Counsel and interrogation

Finished up from 10/31
I. Impeachment
A. Harris v. New York (1971)
1. Statements gained from a criminal D are admissible for impeachment purposes if D chooses to
testify at trial
2. Allows Miranda-poor statements for impeachment
3. 5th amendment privilege does not encompass right to commit perjury
B. Emergency – Public Safety Exception
1. Not used very much
2. Relied on it in Boston Marathon case
II. Booking Exception
A. Anything said and done during legitimate/routine booking process are not Miranda issues
B. Pennsylvania v. Muniz (1990)
1. Clearly slurring words
a) Evidence of slurred speech is not testimony
 2. Used to show intoxication
3. Not considered interrogation
4. Name, address, height, weight, eye color, age, DOB
th
III. Right to 6 Amendment right to counsel
A. Right is personal to Δ
B. Only applies if adversary judicial criminal proceedings have begun
1. Applies when judicial proceedings have been initiated against the accused whether by way of a
formal charge, preliminary hearing, indictment, information, or arraignment
C. Right is offense specific
1. Depends on what crime we are talking about whether right to counsel attaches
2. If not same crime right to counsel doesn’t apply (normally)
3. Right can be waived so long as voluntary, knowing, and intelligent
a) A violation requires exclusion of the statement and its fruits
IV. 5th vs 6th
A. 5th right to counsel applies only to in-custodial interrogations
B. 6th right to counsel applies to all efforts by the police to deliberately elicit statements from a person after
formal criminal proceedings have been initiated
th
V. 6 Amendment right to counsel during interrogation
A. Massiah v. United States (1964)
1. Recording device in co-criminal’s car
2. Massiah makes incriminating statements
3. Had been indicted, had an attorney, was released on bail
4. 6th amendment rights were violated by the use of evidence against him of incriminating
statements which government agents had deliberately elicited from him after he had been indicted
and in the absence of his retained counsel
a) D’s own incriminating statements could not be used against him at trial
b) Once D is represented by counsel 6th amendment right prohibits police or informant from
deliberately eliciting incriminating statements
B. Escobedo v. Illinois (1964)
1. Court extended 6th amendment right to counsel to those who were questioned by the police but
had not yet been formally charged
2. Irrelevant after Miranda
3. Court later abandons 6th amendment approach for interrogations before formal charges
4. Subsequent cases made clear that 6th amendment right to counsel applies only after initiation of
formal adversarial proceedings
C. Brewer v. Williams (1977)
1. Christian burial speech
2. Surrendered to police in Davenport
3. Has to take hrs long ride back to Des Moines
4. Has lawyer waiting for him in Des Moines
5. Police are told not to question him
6. Shows police where body is
7. Court said that Christian burial speech was tantamount to an investigation
8. RULE: 6th amendment prohibits officers form deliberately eliciting information in the absence of
counsel once formal charges have been filed
D. Miranda rights vs Massiah rights
1. Miranda
a) Only for custodial interrogations
b) Applies before and after formal charges
 c) Based upon 5th amendment
2. Massiah
a) Custody irrelevant
b) 6th amendment right automatically attaches and applies after formal charges are filed
c) Prohibits deliberately eliciting statements without counsel
3. Fellers v. United States (2004)
a) Because discussion took place after petitioner had been indicted, outside the presence of
counsel and in the absence of any waiver of petitioner’s 6th amendment rights, statements
made to police had to be excluded
b) No lawyer was appointed
c) Once indicted the right to counsel attaches
th
VI. 6 Amendment right to counsel is offense specific
A. Under 5th right to counsel police cannot initiate questioning about any crime after a suspect has invoked
the right to counsel
1. Miranda prohibits any interrogation without warning
B. Under 6th Amendment police are limited only in questioning the suspect about the specific crimes for
which formal judicial proceedings have been initiate
1. 6th amendment prohibits questioning on formally charged offense
2. McNeil v. Wisconsin (1991)
a) Just as the right is offense specific, so is the effect of asserting the right to counsel in
police-initiated interviews offense-specific
b) Cannot be invoked once for all future prosecutions
c) D’s statements regarding offenses for which he had not been charges were admissible
notwithstanding the attachment of his 6th amendment right to counsel on other charged
offenses
d) 6th amendment is offense specific
3. Texas v. Cobb (2001)
a) Respondent was indicted for the burglary
b) Father contacted police saying that respondent confessed to him
c) Police took respondent into custody, and he confessed to murder
4. Blockburger v. United States (1932) (test used for double jeopardy)
a) Test – whether each provision requires proof of a fact which the other does not
b) Use this test to determine if there are two offenses or only one
c) Different offense decided by Blockburger (separate elements) test
d) Whether or not formally charged
VII. Waivers
A. Michigan v. Jackson (1986) (OVERRULED)
1. D requested counsel at arraignment
2. Triggered 6th amendment right
3. Adopts Edwards rule
4. No valid waiver if police initiated
B. Montejo v. Louisiana (2009)
1. Overruled Michigan v. Jackson (1986)
a) Police advised D of his rights and he waived his rights
b) Has lawyer appointed to him but had not met with him
c) Police take him to locate the murder weapon and he writes letter to apologize to victim’s
widow
2. D not off limits just because counsel appointed at 72-hour hearing
3. D may waive 6th amendment right
 4. Not same type of invocation as Edwards
5. Miranda waiver can (and usually does) cover both 5th and 6th amendment waiter
11/7- Police interrogation: Counsel and interrogation

I. What is Impermissible Police Eliciting of Statements?

A. U.S. v. Henry
1. RULE: Statements made by an accused in custody to a covert government informant may not be
admitted at trial without violating the Sixth Amendment right to counsel.
2. Under Massiah v. United States the government may not use agents to “deliberately elicit”
confessions or other incriminating statements after the Sixth Amendment right to counsel has
attached
3. Three factors are important:
a) Clearly acting as government agent
b) Δ only knew him as another inmate
c) Δ was in custody and under indictment at the time = right to counsel attached
B. What is “deliberately eliciting” information?
1. US v. Henry→ Jailhouse snitch cannot initiate conversation or ask question
2. Kuhlmann v. Wilson→ Jailhouse snitch can “keep his ears open”; act as listening post
II. What is the remedy for 6th amendment violations?
A. Statements in violation of Miranda = impeachment→ Harris
B. Statements in violation of 6A = impeachment→ Kansas v. Ventris
C. Involuntary statement = no impeachment
III. Right to counsel: 5th and 6th A
A. 5A
1. Attaches whenever there is a custodial interrogation
2. Applies only to custodial interrogation
3. Applies to any and all offenses
4. Applies to “interrogation”
5. Applies only to police officers
6. If Δ asks for counsel, questioning must stop, only Δ can re-initiate
7. No fruit of the poisonous tree
B. 6A
1. Attaches only after initiation of adversarial proceedings
2. Applies whether accused is in custody or not
3. Offense specific
4. Applies to “deliberate elicitation”
5. Applies to undercover agents/informants
6. No rule about ceasing questioning
7. Follows fruit of the poisonous tree
IV. Confessions: Analysis
A. Violate due process? (voluntary)
B. Violate Miranda?
C. Violate 6th amendment right to counsel?
1. Hypo
V. 5A in other contexts
A. For privilege to apply, communication must be testimonial, incriminating, and compelled
B. Only individuals can assert 5A privilege
1. Exists to protect the privacy and dignity of individuals
2. Applies to all stages of a criminal proceeding
 3. Can be asserted in civil administrative proceedings as long as there is a sufficient possibility that
the events could subject the Δ to criminal liability
4. Does not apply to entities like corporations, partnerships, unions
C. Schmerber v. CA
1. Blood sample taken = NOT testimonial
a) 5A does not cover physical evidence, must “communicate”
b) Other examples not covered: fingerprinting, photographs, measurements, voice ID,
signatures, walk, IDs, etc
2. RULE:
a) The admission of evidence gathered by forcing a suspect to submit to a blood test does
not violate the Fifth Amendment privilege against self-incrimination.
b) The exigent-circumstances exception to the Fourth Amendment's warrant requirement
allows officers to withdraw a suspect's blood for testing without a warrant if officers
reasonably believe that delaying the test to obtain a warrant could lead to the destruction
of evidence.
D. “Compulsion”
1. Can’t punish for not testifying→ Griffin v. CA
2. Can’t use silence against Δ at sentencing→ Mitchell v. U.S.
3. But, can be used in making prison assignments (sex offender rehabilitation) → McKune v. Lile
or clemency recommendations→ Ohio Adult Parole Authority v. Woodard
E. “Incriminating”
1. Can assert in a civil suit, admin hearings, etc.
2. Civil liability or social stigma not enough
3. Must be the possibility that statements could lead to criminal liability
4. No appreciable fear that name would incriminate him- Hiibel
F. Who may require production of documents?
1. 5A will not protect voluntarily prepared docs
2. If third party (atty, accountant) has papers, Δ cannot use 5A to bar their production- Fisher
G. Immunity
1. Two types:
a) Transactional Immunity→ provides full protection from prosecution for any crime to
which the compelled testimony relates– even if from an independent source
(1) Very rare
b) Use and derivative use immunity→ protection against the use of the evidence provided
or any evidence derived from it in a future prosecution- Kastigar
2. Kastigar v. US
a) Majority:
(1) Immunity statutes cover full extent of 5A right
(2) Δ can still be prosecuted with independent evidence
(3) Once immunity given, testimony may be compelled
b) Dissent:
(1) Need to give full transactional immunity
3. U.S. v. Hubbell
a) Acts of production may be protected by 5th Amendment
b) Target of grand jury protected from questions designed to elicit information about the
existence of sources of incriminating evidence
c) See Baltimore City Dept of Social Services v. Bouknight where mother could not rely on
this doctrine and refuse to produce her infant son
4. Hypo
a) Police charged Δ with robbery, assumed sister helped. Prosecutors subpoenaed sister to
testify at trial about her involvement. Can she refuse to testify under 5th?
(1) Yes. because she is being forced to give testimony under oath
(a) Example of the “cruel trilemma of self-accusation, perjury, or contempt”
from Murphy v. Waterfront Commission of NY Harbor
(i) She has the ‘choice’ between incriminating herself in her
involvement, committing perjury to protect herself/brother,
or being held in contempt for refusing to testify. This is what
5A is designed to protect against→ government should offer
her immunity if they want her to testify