Confessions and Pretrial Identification Procedures Chapter 11 The

Confessions and Pretrial Identification Procedures Chapter 11

The Fifth Amendment • “No. . . person shall be compelled in any criminal case to be a witness against himself. . . ” • The burden must rest on the state to prove a person guilty of a crime • The proof must be reliable • The confession by the accused must be supported by extrinsic source

The Fifth Amendment (Continued) • The right against self-incrimination is designed to keep the burden of proof on the state by – Forcing the government to find reliable evidence and – Prohibiting the use of force to coerce a confession

What Does the Fifth Amendment Protection Include? • It protects – Confessions – Self-incriminating testimony • This amendment applies to any civil or criminal proceeding – Includes trials, juvenile delinquency hearing, and death penalty sentencing hearing

What Does the Fifth Amendment Protection Include? (Continued) • Two questions considered by court when deciding whether testimony should be suppressed: • Does the testimony incriminate or prove criminal conduct? • Could the testimony be used in future criminal procedures?

Who Is Protected by the Right Against Self-Incrimination? • It protects natural persons – One can invoke the right for personal statements, acts, or documents – Perjured statements are not afforded Fifth Amendment protection • It does not protect corporations

Incriminating Testimony • Testimony is incriminating when it contributes to the evidence needed to prosecute – The context in which the question is asked is critical in this determination

Invoking the Fifth Amendment • The invocation must be specific • This right must also be consistently asserted

Can Testimony Ever Be Compelled? • Testimony can be compelled in spite of the Fifth Amendment when – The statute of limitation has run on the crime – Immunity has been granted to the defendant • Immunity is a binding promise that a person will not be prosecuted for certain crimes – Once immunity is granted it is binding on all jurisdictions

Types of Immunity • Use Immunity – Restricted to any statements or fruits from those statements that are incriminating and related to a particular crime – Incidental statements that incriminate the defendant in other crimes are not immunized

Types of Immunity (Continued) • Transactional Immunity – This is a broader type of immunity – Immunizes defendant for any statement about any crime • The federal system and many states have stopped giving transactional immunity

Other Times Testimony Can Be Compelled • Statutes may require the reporting and keeping of information that may be incriminating, such as – Information on income tax forms – Information on securities transaction – Industry safety measures

The Extent of the Waiver of the Fifth Amendment • If the defendant waives the right and gives incriminating evidence the defendant cannot then refuse to answer questions posed – Unless the new question will provide a link to other crimes • The waiver of the right does not extend to future hearings or trial

Evidence Protected by the Fifth Amendment • Testimonial evidence is protected • Physical evidence or evidence that is as likely to prove innocence as guilt is not protected – – – – Blood and urine samples Appearing in lineups Wearing particular clothing in lineups Fingerprints Writing or voice samples Stopping at an accident Being photographed Displaying tattoos or scars

Confessions and Miranda • Miranda v. Arizona (1966) • Aggressive protection of right against selfincrimination • The essentials of Miranda – Police must inform people of the right to be silent – Rules apply when a person is undergoing custodial interrogation

The Essentials of Miranda • The four basic rights – – Right to remain silent Statements can be used against them in court Right to an attorney If the person is indigent, the court will provide an attorney • Interrogation must stop if the suspect invokes right to remain silent

The Essentials of Miranda (Continued) • If a statement is made after the defendant invokes the right to remain silent but without an attorney present, that statement is presumed to be coerced • A violation of these rules means the statement will not be admitted into evidence • Confessions and admissions are both protected

The Essentials of Miranda (Continued) • This right also insures that the defendant may remain silent and this cannot be the subject of speculation by the prosecution – Cannot call the jury’s attention to defendant’s silence

Issues Left Unanswered by Miranda • When is a suspect “in custody” for purposes of Miranda? – Courts use a objective standard – Courts must • Consider the circumstances surrounding the interrogation and • Determine whether a reasonable person would have felt at liberty to leave

Issues Left Unanswered by Miranda (Continued) • When does police conduct or speech become “interrogation” and trigger the Miranda rules? – Voluntary statements by the suspect are not interrogation – Interrogation is police action that leads one to conclude that the action is intended to elicit an incriminating response

Issues Left Unanswered by Miranda (Continued) • What if the warning is incomplete or delayed? – Minor deviations from the warning stated in Miranda are not significant – If the person being interrogated is a non-Englishspeaking individual, the Miranda warning must be given in the person’s native language

Public Safety Exception to Miranda • If the circumstances of a case show that there is a threat to public safety, the Court has allowed police officers to interrogate without first giving Miranda warnings

Waiver after Miranda Warnings • A valid waiver is one that is given intelligently and voluntarily • A valid waiver cannot be inferred from silence • A defendant may waive rights by actions as well as words • A defendant may subsequently waive an assertion of Miranda rights

Miranda’s Scope • Miranda applies to any matter that may lead to criminal or punitive charges • It does not protect persons at – Competency hearings – Prison disciplinary hearings – Sexual offender hearings • Statements made to non-police persons are not protected

Use of a Suppressed Statement • Impeachment: an attack on the witness’s testimony • If previous suppressed statement contradicts the in-court testimony, it can be used to impeach the witness by showing: – Witness is lying – Witness is inconsistent

Right to Counsel • Massiah v. U. S. (1964) • Focuses on whether the Sixth Amendment right to counsel has been violated • Applies after a person has been indicted or arraigned • Prohibits the police from eliciting statements from the defendant in violation of the right to counsel

Eliciting Incriminating Statements • May do so by direct questioning • May do so by making an appeal to – Religion – Morality – Decency • Use of seemingly innocent conversations may be eliciting under certain circumstances

Challenging a Confession • This is an issue of law to be decided by the judge • Defense counsel bring pretrial motion to suppress the confession • At the hearing the defendant may testify without giving up the overall Fifth Amendment right against self-incrimination

Requesting and Preparing for a Suppression Hearing • Steps – Gather the facts – Research the law – Draft the motion and memorandum of law • The court clerk will set the date for the hearing

Identification • Three major processes for identification – Lineups – One-on-one show-ups – Photo identifications • Attorney must be present at post-indictment lineups – No requirement for attorney to be present at postidentification photo identification

Identification (Continued) • Right to counsel applies one-on-one confrontation procedures • Right to have counsel present can be waived by the defendant • Exigent circumstances may exist that may supersede the right to counsel • If an identification is ruled unconstitutional, it may be suppressed

Due Process and Pretrial Identifications • An identification may also be unconstitutional if it violates due process • Court will look at “totality of the circumstances” to determine if – Police procedure was too suggestive – The procedure has “irreparable mistakes”

Factors to Be Considered for an Alleged Due Process Violation • Witness’s opportunity to see the criminal at the time of the crime • Witness’s attentiveness • Witness’s accuracy • Witness’s certainty at the identification procedure • The time lapse between the crime and the identification process

Lineups and Photo Identifications • Preferred lineup procedure – Include a minimum of six persons for a lineup and eight for a photo identification – All persons should have similar physical characteristics – Require all participants in the lineup to speak, gesture, and wear certain clothing – Inform all persons viewing the lineup or photos that the guilty person may not be included

Lineups and Photo Identifications (Continued) • Require the person viewing the lineup or photos to view each person or photo separately – Do not allow the person to view them as a group • Police officer conducting the lineup or photo identification should have no knowledge of who the likely suspect is • Limit the viewing to one witness at a time • Photograph/videotape the identification procedure