Criminal Procedure Outline - Professor Fields 2021 - Campbell Law - Part 10

i. Right to counsel for any crime involving actual confinement, both in state and federal court (Gideon, Shelton)

ii. Right to counsel attached at initial appearance (Rothgery) and ends after first level appeal (Ross)

iii. Law enforcement cannot question you w/o an attorney or waiver after indictment and retention of counsel (Massiah)

iv. Law enforcement cannot question you w/o an attorney pre-indictment after you affirmatively request to speak to an attorney (Escobedo)

v. When a suspect received an attorney at arraignment, police cannot initiate custodial interrogation w/o an attorney present (Jackson)
(5th am)

vi. Custodial interrogation is so inherently coercive, suspects must be told they have a right to counsel prior to any interrogation or confession being used against them (if they knowingly waive the right and answer) (Miranda)

vii. When in custody, invocation of right to counsel must be explicit (Davis)

viii. When in custody, when right to counsel is invoked, police cannot “try again” (Edwards) unless a 14 day or more break in custody occurs (Shatzer)

i. Views Miranda as a prophylactic—therefore not themselves right protected by the constitution

ii. By weakening Miranda, can balance Miranda—need for answers in public safety setting outweighs need for prohylactic rule

iii. Public safety exception: Allows for pre-Miranda statements to be admitted into evidence and is not dependent on the motivation of the involved officers

1. “in a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to the police manual is necessarily the order of the day, the application of the exception should not be made to depend on post hoc findings at a suppression hearing concerning the officer’s subjective motivation

i. US v. Patane: Physical fruits of a Miranda violation must not be excluded from trial

1. Because Miranda rights are not constitutional rights, fruits of the poisonous tree doctrine doesn’t apply
2. “unlike unreasonable searches under the 4th am, or actual violations of the due process clause or self-incrimination clause, there is, with respect to mere failure to warn, nothing to deter”
3. Important distinction between coerced confessions and Miranda violations

ii. Missouri v. Seibert (Elstad was a good-faith Miranda mistake but here, they’re trying to circumvent Miranda)

1. Justice Kennedy (considered controlling opinion): The admissibility of post-warning statements should continue to be governed by the principles of Elstad unless the deliberate 2-step strategy is employed
2. If deliberate, post-warning statements by excluded unless curative measures are taken before the post-warning statement is made

iii. Exclusionary rule

1. Applies to Miranda violations (made explicit in Miranda)
2. Applies to violations of due process clause
3. Applies to violation of self-incrimination clause of the 5th am

iv. Fruit of the poisonous tree doctrine

1. Applies to violations of due process clause (both physical evidence and statements)
2. Applies to violations of self-incrimination clause of 5th am (both physical evidence and statements)
3. Generally, does not apply to Miranda violations:
   1. Does not apply to physical fruits (Patane)
   2. Does not apply to statement fruits (Elstad)
   3. But does apply to “two-step” interrogation techniques when performed as a deliberate attempt to bypass Miranda (Seibert)

v. Dickerson: Miranda is a Constitutional decision of this Court, Congress may not overrule it and Miranda continues to govern the admissibility of a custodial suspect’s statement

vi. Williams: Once adversarial proceedings have commenced against an individual, he is entitled to the assistance of counsel; LE may not deliberately elicit incriminating statements from him

1. Deliberately elicit: (different from interrogation test in Innis) Focuses on subjective intent of the police officer

vii. Kuhlmann: Law enforcement did not violate defendant’s 6th amendment right to counsel because the police informant did not deliberately elicit incriminating statements from defendant

1. Defendant must demonstrate that the police and their informant took some action, beyond mere listening, that was designed to deliberately elicit incriminating remark