Litigating miranda rights
Author | Deja Vishny |
Pages | 519-598 |
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 Outward Indications of a Lack of Understanding
§10:45 Bottom 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 Fifth 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
§10:71 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 Courts 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 Inquiry
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
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