Litigating miranda rights

• Author: Deja Vishny
• Pages: 571-652

LITIGATING

MIRANDA RIGHTS

10-1

CHAPTER 10

LITIGATING MIRANDA RIGHTS

I. THE LAW OF MIRANDA RIGHTS

A. Governing Principles

§10:01 Substance of Warnings

§10:02 Purpose of Warnings

§10:03 Custodial Interrogation by Law Enforcement

§10:04 Burden of Proof

§10:05 Scope of the Suppression Remedy

B. Custody

1. Def‌inition of Custody

§10:06 Restraint on Freedom of Movement

§10:06.1 Inmates and Persons Conf‌ined for Reasons Unrelated to Police Action

§10:07 Objective, Reasonable Person Standard

§10:08 Case Examples – Common Fact Patterns

2. Litigating Custody

§10:09 Typical Scenario One: Car Stop

§10:10 Typical Scenario Two: Client Came in Voluntarily

§10:11 Typical Scenario Three: Client in Custody for Something Else

C. Interrogation

1. Def‌inition of Interrogation

§10:15 Supreme Court’s Innis Standard

§10:16 Lower Courts’ Application of Innis Yields Contradictory Results

2. Litigating Interrogation

§10:17 Common Fact Pattern

§10:18 Sample Prosecution Direct Examination

§10:19 Sample Cross-Examination

§10:20 Argument

[§§10:21-10:24 Reserved]

II. EXCEPTIONS TO MIRANDA RULE

A. Public Safety

§10:25 Scope

§10:26 Common Fact Pattern

§10:27 Sample Cross-Examination

B. Routine Booking Questions

§10:28 Scope of Exception

§10:29 Common Fact Pattern and Cross-Examination – Example 1

§10:30 Common Fact Pattern and Cross-Examination – Example 2

LITIGATING

MIRANDA RIGHTS

Suppressing Criminal Evidence 10-2

C. Other Exceptions

§10:31 Driving While Intoxicated Blood Test

§10:32 Statements to Parole and Probation Agents and Presentence Writers

§10:33 Border Exceptions

[§§10:34-10:34 Reserved]

III. WAIVER OF MIRANDA RIGHTS

A. Governing Principles

§10:35 Prosecutor’s Burden to Show Waiver

§10:36 Berghuis v. Thompkins: Chipping Away at Miranda

B. Post-Berghuis Litigation on Waiver

§10:37 Why Detective Did Not Ask for Explicit Waiver

§10:38 Off‌icer Minimized Signif‌icance of Miranda Rights

C. Waiver Must Be Knowing and Voluntary

1. Governing Principles

§10:39 What is a “Knowing” Waiver under Berghuis?

§10:40 Off‌icer Coerced Miranda Waiver

§10:41 Cognitive Def‌icits and Issues

§10:42 Language Def‌icits and Issues

§10:43 Cultural Issues

§10:44 Out ward Indications of a Lack of Understanding

§10:45 Bot tom Line for Defense Lawyers

2. Pattern Cross-Examinations

§10:46 What Did Client Understand When He Waived His Rights?

§10:47 When Interrogator and Client Speak Different Languages

§10:48 When Interrogator Claims to Speak Same Language as Client

D. Waiver Invalid if Undermined by Interrogator

§10:49 Governing Law

§10:50 In Practice: Listen for Misrepresentations After Miranda Warnings

[§§10:51-10:54 Reserved]

IV. ASSERTING MIRANDA RIGHTS

A. Governing Principles

§10:55 Two Ways to Assert Miranda Rights

§10:56 Anticipatory Assertion of Miranda Rights

§10:56.1 Governing Law

§10:56.2 Sample Cross-Examination

B. Asserting the Right to Remain Silent

1. When the Interrogation is Recorded

§10:57 Recording Can Make All the Difference at Suppression Hearing

§10:58 Sample Cross-Examination

2. Timing – When Client Asserts Right to Remain Silent

§10:59 When Client Talks First

[§10:60 Reserved]

3. Selective Assertion of Miranda Righ ts

§10:61 Governing Law

§10:62 Sample Cross-Examination

§10:63 Sample Argument

4. Ambiguous Assertion of Righ t to Remain Silent

§10:64 Governing Law

§10:65 Case Example

§10:66 Claims that Non- Ambiguous Assertions were Misunderstood

LITIGATING

MIRANDA RIGHTS

10-3 Litigating Miranda Rights

C. Asserting the Right to Counsel

1. Governing Law

§10:67 Interrogation Must Cease for at Least Two Weeks After Release From Custody

§10:68 Fif th Amendment Right to Counsel Not Offense-Specif‌ic

§10:69 Must Be Personally Asserted

2. Ambiguous Requests for Counsel

§10:70 Equivocal Statement is Not an Assertion of Right

§10:70.1 Race and So-Called Ambiguous Requests For Counsel

§10:71 Police May Not Misrepresent Effect of Exercising Right to Counsel

3. Suspect Initiated Contact With Police

§10:72 Suspect Changes His Mind, Wants to Talk

§10:73 Litigation Tips

D. Failure to Read Miranda Warnings Until after Obtaining Confession

1. Governing Law

§10:74 Oregon v. Elstad

§10:75 Missouri v. Seibert

§10:76 Issue: Did Off‌icer Deliberately Try to Circumvent Miranda?

§10:77 Fruits of Non-Mirandized Statements

2. Litigating Failure to Read Miranda Rights Until After Confession Obtained

§10:78 Sample Cross-Examination

§10:79 Sample Argument

[§§10:80-10:84 Reserved]

V. JUVENILES AND MIRANDA

A. Governing Law

§10:85 Cour ts Recognize that Juveniles are Different from Adults

§10:86 Totality of Circumstances Test

B. Custody

1. Governing Law

§10:87 Child’s Age Informs the Custody Analysis

§10:88 No Bright-Line Rule; Fact-Specif‌ic Inquir y

2. When Questioning Occurs at School

§10:89 Governing Law

§10:90 Sample Case Scenario

§10:91 Sample Cross-Examination

§10:92 Sample Argument

C. Waiver

1. Presence of Interested Adult

a. Governing Law

§10:93 States with Per Se Rule re Presence of Interested Adult

§10:94 States Without a Per Se Rule

§10:95 States Where Per Se Rule Gave Way to Totality of Circumstances Test

b. Litigation to Require Presence of an Interested Adult

§10:96 Argue in Favor of a Per Se Rule

§10:97 Eavesdropping

c. Motions to Suppress Notwithstanding Presence of an Interested Adult

§10:98 Conduct Detailed Investigation

§10:99 Conf‌lict of Interest?

§10:100 Sample Cross-Examination

2. Juveniles’ Understanding of Miranda Warnings, Requests for Counsel and

Consequences of Waiver

§10:101 Courts Apply “ Totality of Circumstances” Test

§10:102 Requests for Counsel

§10:103 Research Shows Juveniles Do Not Suff‌iciently Understand Miranda to Waive Rights

§10:104 Litigation Tactics: Expert Testimony Required