Professional Documents
Culture Documents
Confessions and Pretrial Identifications
Confessions and Pretrial Identifications
For confessions, threshold question always is whether or not the defendant’s confession was voluntary to the police.
For the self-incriminating statement to be admissible, must show:
● Voluntary nature of the statement based on the totality of the circumstances;
● Not voluntary if obtained via compulsion; mental infirmities not enough to show involuntariness without police
coercion
MIRANDA WARNING
RIGHT TO COUNSEL
1
Fifth Amendment Right to Counsel Sixth Amendment Right to Counsel
This is part of the Miranda warnings; a detainee in a More broad and extensive. Right attaches when
custodial interrogation must be given a warning of his judicial proceedings have begun (filing of formal
rights, including the right for counsel to be present. The charges).
right applies to custodial interrogations:
Pretrial:
● Custody: Two step process ● Post-indictment interr.;
○ Freedom of Movement: whether a ● Prelim. hearings to det. prob. cause to prosec.;
reasonable person under the ● Arraignment;
circumstances would be free to ● Post-charge line-up
terminate the interrogation and leave; ● No applic. for blood samples; handwrit./voice
○ Whether the relevant environment samples; prelim. hearings for prob. cause to
presents the same inherently coercive detain; photo IDs or pre-charge investig. line-
pressures as the type of station house ups
questioning at issue (so if questioning
feels like an arrest, satisfies custody and Trial
therefore Miranda warnings are needed) ● Felony trials;
● Misdemeanor trials (if incarc. is actually imposed
● Interrogation: words or acts by police that they or a suspended sent. is imposed);
should know would likely elicit a response from ● Guilty pleas
detainee (routine booking questioning does not
count) Post-Adjudication:
● Sentencing hearings;
● Appeals (as a matter of rt. & of guilty or nolo
contendere pleas);
● No application for discret. appeals; post-convict.
procs. (habeas corpus); parole & probat. revoc.
Right applies to any questioning during a custodial Right is offence specific; can be questioned on unrelated
interrogation to prevent the detainee from incriminating & uncharged offs. w/o atty present (so long as not during
himself (giving an involuntary confession) without the custod. interr.)
presence of counsel
During nontrial proceedings, apply harmless error rule if
rt is denied. But if D was entitled to lawyer during trial,
failure of counsel is auto. rev. of any conviction, even
w/o showing of spec. unfairness.
Waiver must be knowing and voluntary Waiver must be knowing and voluntary; does not
require presence of counsel
PRETRIAL IDENTIFICATIONS
Included here for organization purposes, not that it has anything to do with confessions. During post-charge lineups,
there is a 6th Am. right to counsel (see supra), but not for photo IDs or when police have to take phys. evidence such
as handwriting samples of fingerprints.
● A defendant can attack an ID as denying due process if the ID is unnecessarily suggestive and there is a
substantial likelihood of misidentification
● Note pretrial IDs do not require the defendant to give testimony, so there is no risk of self-incrimination. A
defendant may not refuse to participate in a lineup like he could remain silent; no Miranda warnings