Criminal Procedure Class Eight Today’s Topics: Confessions • • • • • • • Right to counsel Massiah Doctrine After formal charges Covert activity On-going investigation Waiver Exclusionary rule.
Download ReportTranscript Criminal Procedure Class Eight Today’s Topics: Confessions • • • • • • • Right to counsel Massiah Doctrine After formal charges Covert activity On-going investigation Waiver Exclusionary rule.
Criminal Procedure Class Eight Today’s Topics: Confessions • • • • • • • Right to counsel Massiah Doctrine After formal charges Covert activity On-going investigation Waiver Exclusionary rule Today’s Topics: Identification • Right to counsel • Due process limitations Confessions: Sixth Amendment Right to Counsel Massiah Doctrine • Predates Miranda by two years • Holding: Sixth Amendment violated when agents deliberately elicited confession after D had been indicted and in the absence of his attorney Massiah Doctrine • Rationale: To deny an accused counsel during this period denies her effective representation at only stage when legal aid and advice would help • Constitutionalized version of professional ethics rule (adverse party may only be contacted through counsel) Developmental Hiatus • After Massiah, confessions analyzed under Sixth Amendment right to counsel entered dormant period • Miranda gained ascendancy as vehicle for addressing propriety of confessions • Doctrine regained prominence in 1977 “After Formal Charges” • Brewer v. Williams (Christian Burial speech case) - Discussed in search and seizure context concerning inevitable discovery doctrine. [Grid that would have led to discovery of murder victim’s body if suspect had not confessed] Brewer Facts Des Moines Attorney • Advice to defendant not to speak • Agreement with police not to question Brewer Facts Davenport Attorney • Advice to defendant not to make any statements until consulting with his Des Moines attorney • Direction to Des Moines officers that D was not to be questioned until after D had consulted Des Moines attorney Additional Facts • D arrested and arraigned for child’s murder • Never during 160 mile trip did D express a willingness to be interrogated • Frequently said, “when I get to Des Moines and see [counsel], I am going to tell you the whole story.” • Detective knew D was former mental patient Additional Facts • Detective knew D was deeply religious • Christian Burial’s speech basically urged D to lead detectives to girl’s body so she could get a decent Christian burial - - particularly before snow storm made it impossible to find her Brewer’s Holding • D’s incriminating statements to police were obtained in violation of Sixth Amendment because adversarial judicial proceedings had commenced against him. Statements made were result of deliberate elicitation • Concept familiar from Rhode Island v. Innis Brewer v. Williams: Waiver • D can waive right to counsel • Valid waiver not secured here • Valid waiver requires State to prove intentional relinquishment or abandonment of a known right or privilege Brewer v. Williams: Lawyer Request? • Suspect does not have to request lawyer to trigger Massiah protections • Notice: waiver requires not merely comprehension but relinquishment • Contrast Miranda, where suspect must actually invoke right to counsel Covert Police Activities • More protective than Miranda – Miranda only applies to custodial interrogation - - thus suspect has to know he is speaking to police officer • Contrast – Jailhouse plant: U.S. v. Henry – Listening post: Kuhlmann v. Wilson • Analytical key: Is this a “passive listener”? Or are they eliciting information? Is the informant a state agent? On-going Investigation • Massiah not intended to curtail government efforts to continue to investigate crime with which suspect has been charged On-going Investigation • Only limits contact police may have with suspect once formal charges has begun and right to counsel attaches. • Issue: Sixth Amendment prohibits officer from getting information from the accused on charged crimes – Maine v. Moulton Waiver • Query: Under what conditions can D be said to have waived his 6th Amd rights? – Brewer v. Williams held gov’t must show more than simply that D received warnings and elected to speak • Possible approach: Conformity with Miranda waiver doctrine Waiver Scenarios • Post-Miranda warning waiver – Issue: In Miranda context, warnings provide suspect with all information needed to make a knowing waiver. Does the same apply for waiver of 6th Amd right to counsel? – Patterson v. Illinois: D, after indictment, received Miranda warnings, signed waiver form, and confessed. He never invoked his right to counsel. Court rejected argument that Miranda warnings were not adequate to inform D of his 6th Amd right to counsel. Waiver Scenarios • Post-invocation waiver – Michigan v. Jackson – Held: D could only have waived if he initiated conversation and knowingly and voluntarily waived his rights. Waiver Scenarios • Unrelated crimes – Arizona v. Roberson: Inapplicable in 6th Amd context – McNeil v. Wisconsin: Invocation of 6th Amd right to counsel is offense specific – Texas v. Cobb (Supp.) (determining which crimes are related to the crime charged) Exclusionary Rule • Issue: What should be the remedy for eliciting statement in violation of Sixth Amendment right to counsel? • Open question • Possible Approach: Suppression of statement – Arguments against: Analogy to good faith exception to Fourth Amendment exclusionary rule (inapplicable after weighing cost and benefits) – Arguments favoring: Violation of Massiah not completed until confession admitted at trial Review: Fifth Amendment v. Sixth Amendment • Issue: Waiving right to counsel after invocation • Fifth Amendment: Edwards v. Arizona • Sixth Amendment: Michigan v. Jackson • Same Test – Suspect must initiate – Knowing and voluntary Review: Fifth Amendment v. Sixth Amendment • Issue: Waiving right to counsel after Miranda warnings • Fifth Amendment: Moran v. Burbine • Sixth Amendment: Patterson v. Illinois – No additional warnings needed – CAUTION: Might be invalid if (1) attorney attempting to reach (2) surreptitious conversation between undercover officer and D Review: Fifth Amendment v. Sixth Amendment • Issue: Waiver when not told attorney trying to reach • Fifth Amendment: Statement valid – Moran v. Burbine • Sixth Amendment: Statement Invalid – Patterson v. Illinois (footnote) Review: Fifth Amendment v. Sixth Amendment • Issue: Use of covert/undercover questioner • Fifth Amendment: Permissible – Illinois v. Perkins • Sixth Amendment: Invalid – U.S. v. Henry (unless no government effort to elicit) Review: Fifth Amendment v. Sixth Amendment • Issue: Questioning about unrelated crimes after invocation of right to counsel • Fifth Amendment: Prohibited – Arizona v. Roberson • Sixth Amendment: Permissible – McNeil v. Wisconsin Chapter IV: Identification Concerns • Bad IDs are “conceivably the greatest single threat to the achievement of our ideal that no innocent man shall be punished.” • 1996 U.S. Department of Justice study, Convicted by Juries, Exonerated by Science Types of Identification Evidence • • • • • DNA Handwriting analysis Fingerprint evidence Video surveillance cameras Eyewitness testimony Eyewitness Testimony: Scenario I • Paradigm: In-Court Identification • Can you identify the person who robbed your bank? • Yes • Would you please point that person out? Eyewitness Testimony: Scenario I • It is the defendant, seated there at the table • May the record show that the witness has identified the defendant? • The record will also indicate • Are you certain of your identification? • Yes, I had a good view of him at the time of the robbery. Scenario II • Paradigm: Testimony Concerning Prior Identification [I.e., an identification made outside of court] • Sometime has passed since the robbery, has it not? • Yes • But, did you have an opportunity prior to trial to make an identification? • Yes Scenario II • When was that? • I went to a lineup and viewed seven men. I picked out the defendant at that time also. That was several months ago. • Where you sure then as to your identification? • Yes • Was your memory even clearer several months ago than it is today? • Yes Exercise: Policy Considerations • Does the defendant have the right to sit in the spectator or public section of a courtroom when a witness at trial seeks to make an identification? • Assume D who asked for the in-court equivalent of a lineup has “stacked” the courtroom with people from her community or her immediate family who most resemble D. • Should this be permitted? Examples of Eyewitness Procedures • Photo spread • Lineup • One on one show-up Impact Right to Counsel Violation: In-Court ID • In-Court identification testimony (Scenario I) • U.S. v. Wade – Issue: Whether in-court identification should be excluded from evidence because D was placed in postindictment lineup without notice to counsel – Issue Restated: Should prosecution have opportunity to establish that in-court identification was based on observations of D other than the lineup? Purging the Taint: Items Considered • Prior opportunity to observe • Any discrepancies between pre-lineup description and actual description • Identifying someone else prior to lineup • Identifying D by picture prior to lineup • Failure to identify D on prior occasion • Lapse of time Impact Right to Counsel Violation: Prior ID • Use of testimony in court concerning out of court identification (Scenario II) • Gilbert v. California • Contrast, Wade • Per se rule of exclusion • Harmless error test When Does Right to Counsel Attach • Kirby v. Illinois • Initiation of judicial criminal proceedings is starting point of adversary system • Filing formal charges (e.g. indictment) • Consequence: Wade and Gilbert do not apply to pre-formal charges lineups or show ups Right to Counsel: Photo Spread • Context: Photograph identification procedures [mug books, photo “lineup” • United States v. Ash • Holding: no right to counsel, regardless if held before or after indictment • Rationale: D is not present at photographic display. No reason to have advisor or spokesperson Exercise • Identify at least two suggestive possibilities that could occur during a photo display. Right to Counsel Review • Procedure: Lineup, before formal charges, without counsel • Result: Admissible • Case: Kirby v. Illinois Right To Counsel Review • Procedure: Lineup after formal charge, without counsel • Result: No out of court identification testimony • Result: No in-court identification testimony unless taint purged • Cases: Gilbert/Wade Right To Counsel Review • Procedure: Photo spread, before or after formal charges, without counsel • Result: Admissible • Case: Ash Due Process Limitations • Stovall v. Denno • Test: Totality of circumstances • Result: Fundamental fairness may require exclusion of identification testimony Application Examples • • • • Neil v. Biggers Simmons v. United States Foster v. California Theory: Due process test protects against identification so impermissibly suggestive as to give rise to very substantial likelihood of irreparable misidentification Determining Strength of Witness’s Pre-ID “Picture” • • • • How good a look before or during? crime How attentive Any memory loss Any variance from description given by witness (clarity and detail) • Having identified anyone else • Degree of certainty at time identification made Reliability • Manson v. Brathwaite • Issue: Whether due process compels exclusion of pre-trial I.D. evidence obtained by police procedures both suggestive and unnecessary • NOTE: Reliability becomes linchpin in determining admissibility of I.D. testimony Factors In Reliability Determination • • • • • Opportunity to view Degree of attention Accuracy of description Witness’ level of certainty Time lapse between crime and confrontation Other Considerations • Prosecutorial steps to counter collateral issues of prejudice • Voice identification • Hypnosis – Open Supreme Court question – Three views in lower courts