Challenges to Statements
What is the challenge as a fruit of a 4th Amendment violation?
Challenge as a fruit of a 4th Amendment violation If it is held that the statement is a fruit of a 4th Amendment violation, the statement cannot come in for the government’s case in chief, BUT it can still come in for impeachment of the defendant.
What is the rule under the 14th amendment due process?
Under 14th amendment due process, any confession must be voluntary in order to be admissible as evidence, either in the government’s case in chief or for impeachment purposes.
What is the rule under the 6th amendment? And what is the remedy for violation?
Attachment of 6th amendment right to counsel: an accused D’s right to counsel attaches automatically to a criminal prosecution with the initiation of adversarial judicial proceedings (formal judicial proceedings)
Remedy for violation: Statements taken in violation of the sixth amendment right to counsel are excluded from the prosecution’s case in chief but are admissible for impeachment purposes.
What type of identification is it?
There are three types of identification: (1) show-up; (2) line-up; and (3) photo array.
#1: Show-Up (see the defendant in the field)
#2: Line-Up (a live, physical line up)
#3: Photo Array (group of pictures)
What are the 3 questions you need to ask for 14th amendment?
3 step analysis for 14A challenge
(1) was this procedure suggestive;
(2) was it necessary to do the procedure in this way; and
(3) did the ID procedure result in a reliable or unreliable ID.
What is the challenge as 14th due process violation?
Challenge as 14th due process violation (not voluntary under the 14th Amendment) If it is held that the statement is a violation of the 14th Amendment, the statement cannot come in for the government’s case in chief OR for impeachment. This makes the 14th Amendment very powerful.
What are the rules of obtaining confessions through coercion and torture?
Confessions induced via torture are involuntary, violate 14th amendment, and are inadmissible.
Coercive police activity is a necessary predicate to finding that a confession is involuntary within the meaning of 14th amendment.
A statement made by a mentally ill person is NOT involuntary for purposes of the Due Process Clause if there is no coercive behavior by police.
A statement is involuntary if there is government coercion, either physical or psychological.
When and how do the police violate 6th amendment rights?
After formal adversarial proceedings have begun, the police violate the sixth amendment by deliberately eliciting information from the defendant without counsel present.
Right to counsel under the 6th amendment can only be waived by intentional relinquishment.
After an accused D’s 6th amendment right to counsel attaches, the court makes a separate inquiry to see if the proceeding is a critical stage. If it is a critical stage, counsel’s presence is required.
6th amendment violation = interrogation without counsel – a critical stage – after the attachment of right to counsel
What are the 2 questions you need to ask for 6th amendment?
The 6th Amendment is offense specific. The two questions you need to ask for 6th amendment:
1) Have formal adversarial proceedings begun?
2) What is the offense?
What is the Unduly / Unnecessarily Suggestive analysis?
Suggestive Analysis: how similar is line up to initial description rather than to the suspect? Words by and presence of officers?
Necessity? (Stovall hosp bed was nec/ Simmons serious crime and armed felon is on the loose)
We ask whether the ID was so unnecessarily suggestive and conducive to irreparable mistaken ID that the defendant was denied due process of law.
Convictions based on eye witness id at trial following a pre-trial id by photograph will be set aside on that ground only if the photographic id procedure was so impermissibly suggestive so as to give rise to a very substantial likelihood of mis-identification.
What is the challenge as a 6th Amendment violation?
Challenge as a 6th Amendment violation of right to counsel
How is voluntary analyzed? Name factors.
Voluntariness is analyzed under a totality of the circumstances. Factors include:
The length of the interrogation and whether the defendant was deprived of basic bodily needs
The use of force and threats of force
Deception
Age, level of education, and mental condition of suspect
What is the rule for jail cellmate informants, under the 6th amendment?
Use of post-indictment informants violates the 6th amendment right to counsel if there is deliberate elicitation.
Deliberate elicitation after initiation of formal proceedings and violates sixth amendment right to counsel.
If the informant is merely a passive listener and does nothing to elicit statements, then 6th amendment is not violated.
When does the Right to Counsel attach at ID procedures?
If the police conduct an ID procedure prior to when the 6th amendment attaches, that procedure cannot be challenged based on 6th amendment. The right to counsel only applies AFTER the initiation of formal judicial proceedings.
NEVER before formal proceedings. After formal proceedings – at a line up and a show-up but NOT a photo array.
Line-ups (and show-ups) are critical stages + defendant has a right to counsel at all critical stages once 6A has attached.
The right of counsel only applies to show ups and lineups. (right of counsel does not apply to a photo array). No right to counsel at post indictment photo array because procedural error/misconduct with photo array can be cured at trial, and the defendant is not present during a photo array showing.
What are the Biggers factors?
Unnecessarily suggestive procedure but ID was reliable under TOC
Biggers Factors: factors for evaluating reliability/likelihood of misidentification:
Witness’s opportunity to view the suspect during the crime
Witness’s degree of attention (is there anything distracting?)
Accuracy of description that is given prior to the ID procedure as compared to the person who is actually identified (do these two match up?)
Witness’s level of certainty when identifying the suspect
Length of time between crime and the identification
What is a statement?
A statement is anything that a suspect or defendant says to the police.
Analyze a statement under each of the following (4th, 5th, 6th, 14th amendments) separately. More than one may apply.
What have the courts deemed fit into the length of the interrogation and whether the defendant is deprived of basic bodily needs AND use of force or threats of force?
The length of the interrogation and whether the defendant is deprived of basic bodily needs:
- Ashcraft v. Tennessee: suspect was not permitted to sleep for the 36 hours during which the interrogation occurred.
- Payne v. Arkansas: suspect was given no food for 24 hours
Use of force or threats of force:
- Payne v. Arkansas: the suspect was told that a mob of 30 to 40 people were waiting outside the station to get him unless he confessed
- brutally beaten and hung.
What is the blockburger test?
6th amendment right to counsel is offense-specific, so it does not attach to the investigation of a different offense. Whether it is a different offense is determined by the Blockburger test: “whether each provision requires proof of a fact which the other does not”- it is the same offense only where the elements of one offense are necessarily included in the other.
Same offense: all of the elements of one offense are contained in the other
Different offense: may arise out of the same event, but are not the same offense unless one crime shares all of the elements of the other.
What are the Wade factors and how do you use it to analyze?
Wade factors: Use the Wade factors to analyze whether the in-court ID would be a fruit of the problematic out-of-court ID, or if the out-of-court ID had an independent source.
What was the witness’s prior opportunity to view the suspect during the original criminal act? Factors affecting a witness’s ability to view the suspect (like stress and weapon focus)
Was there an ID by picture of the Defendant prior to the line-up (or another problematic ID procedure)?
What was the lapse of time between the observation during the crime and ID procedure?
Did the witness fail to identify the defendant on previous occasion before the problematic ID?
Did the witness identify another person prior to line up?
Are there any discrepancies between the witness’s initial description and the defendant’s actual appearance?
Prosecution must prove that the in-court identification is independent from the problematic ID procedure by clear and convincing evidence
What is the takeaway from Manson v. Braithwaite?
Takeaway: If there is not a substantial likelihood of irreparable mis-identification, the ID should be admitted and jury (fact finder) can decide the weight to give to the evidence.
Even an unnecessarily suggestive ID can be introduced into evidence IF, under TOC, the ID has strong indicia of reliability.
Can invoking the 5th amendment be used against a defendant?
Can defendant have a right to refuse to testify?
No. Invoking the 5th Amendment cannot be used against a defendant (Woodward) – privilege against self incrimination. Can’t say defendant is guilty because they are invoking their right to remain silent.
Yes. Right to refuse to testify (Griffin) - Griffin court rules that it violates a defendant’s 5th amendment rights for the prosecution to comment on a defendant’s failure to testify or for the judge to instruct the jury that silence is evidence of guilt.
What have the courts deemed fit into deception AND Age, level of education, and mental condition of a suspect?
Deception:
- Lynumn v. Illinois: told that if you do not cooperate, you would face 10 years in prison and have your children taken away from you. Not voluntary.
- Grandmother speech: told him his grandmother was in the hospital (a lie) and later that she was in the ICU (also a lie) and told him he had to confess if he wanted to see his grandmother one last time. He did not confess. They then told him that she died (another lie) and that he had to confess if he wanted to go to her funeral. He confessed. Not Voluntary
- Leyra v. Dennis and Frazier v. Cupp: police lied and told the suspect that his accomplice had already confessed. voluntary
Age, level of education, and mental condition of a suspect:
- suspect was illiterate and of low intelligence in finding confession to be involuntary.
- court noted that the suspect had completed a year of law school in finding confession to be voluntary.
What is the 6th amendment waiver?
The police may initiate interrogation without counsel present after formal proceedings have begun without violating the sixth amendment so long as there is a valid Miranda waiver. - Police can reinitiate interrogation of a D, who is represented by counsel, without violating D’s 6th amendment rights so long as there is a valid Miranda waiver.
What is the identification anaylsis?
Identification Analysis:
What was the type of ID procedure used?
Were the defendant’s constitutional rights violated? → 3 ways to challenge
4A: Was the identification the fruit of a 4A violation? Is ID a FOPT?
6A: Did the defendant have a right to counsel at the ID procedure?
14A: Did the ID procedure ID procedure violate Due Process?
What happens to the in-court ID that follows a problematic out-of-court ID (whether 4A, 6A, or 14a problem)? Use Wade factors to analyze.
What happens to the in-court ID that follows a problematic out of court ID?
Out of Court Procedure:
4th Amendment challenge: FOPT of 4th Amendment violation
6th Amendment: Wade, Ash, Kirby
14th Amendment: Manson, Biggers, Foster, Simmons, Stovall
In-Court ID: Fruit of out of court procedure?
Wade governs this regardless of the type of out of court violation (4th, 6th, 14th amendment)
Wade address whether original ID is problematic due to 6th amend or 14th amendment violation!