South Carolina Lawyer
SC Lawyer, March 2010, #2.
Is It Admissible? Tips For Criminal Defense Attorneys on Assessing the Admissibility of a Criminal Defendant's Statements
South Carolina Lawyer March 2010 Is It Admissible? Tips For Criminal Defense Attorneys on Assessing the Admissibility of a Criminal Defendant's Statements Part One By John H. Blume and Emily C. Paavola INTRODUCTION
Imagine that you have just been appointed to represent a client charged with murder. You immediately make an appointment to meet with him at the county jail. When you arrive for your appointment, however, you discover that two detectives have just obtained a waiver of Miranda rights, placed your client in a squad car and are currently out driving him around while they look for the murder weapon. When your client returns, you learn that during the car ride, the detectives gave your client a pen and some paper and asked him to write a letter apologizing to the victim's wife for killing her husband. Your client has written an incriminating two-page letter before you even had a chance to confer with him and advise him of his rights. This past term, the U.S. Supreme Court held that, under these facts, admission of the incriminating letter was not a violation of the Sixth Amendment right to counsel. Montejo v. Louisiana, 129 S.Ct. 2079 (2009). In doing so, the Court overruled Michigan v. Jackson, 475 U.S. 625 (1986), which previously barred police from initiating interrogation after the right to counsel had attached and was considered a core Sixth Amendment protection for criminal defendants.
After Montejo, what do you tell your next client with regard to his Sixth Amendment rights-assuming you make it to the station house before the police take him out for a drive? And what about your client's Fifth and 14th Amendment rights? Did what occurred here implicate those rights as well? The answer to this question is "yes." The admissibility of a criminal defendant's statement implicates several different constitutional safeguards, including the Fifth Amendment right against compelled self-incrimination, the Sixth Amendment right to counsel and the 14th Amendment's Due Process Clause. Each constitutional protection must be carefully considered and analyzed. This purpose of this article is to provide an overview of the basic questions to ask yourself in analyzing the various constitutional provisions under which a client's statements may be inadmissible. Part One of this article explains the relevant Fifth Amendment considerations. Part Two discusses the Sixth Amendment, the 14th Amendment's Due Process Clause and impeachment issues.
Was the statement obtained in violation of the Fifth Amendment?
The Fifth Amendment guarantees that "[n]o person. . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V; S.C. Const. Art. I, section 12. In Miranda v. Arizona, 384 U.S. 436 (1966), the U.S. Supreme Court presumed that interrogation in certain custodial circumstances is inherently coercive and held that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forgo those rights. Of course, as with most legal principles, Miranda's basic holding has a number of caveats and nuances. But, the Fifth Amendment analysis can be undertaken with a series of simple questions.
1. Was the suspect in custody?
Miranda and its progeny bar the admission of certain statements given by a suspect during "custodial interrogation" without a prior warning. Thus, the first question to consider is whether the suspect was in custody. All of the circumstances surrounding the interrogation must be considered (including events that occurred before, during and after the interrogation), and the ultimate inquiry is whether there has been a formal arrest or whether the suspect's freedom of movement has been restricted in any significant way. California v. Beheler, 463 U.S. 1121 (1983); Oregon v. Mathiason, 429 U.S. 492 (1977); Beckwith v. United States, 425 U.S. 341 (1976); State v. Peele, 298 S.C. 63, 378 S.E.2d 254 (1989); State v. Ridgely, 251 S.C. 556, 164 S.E.2d 439 (1968).
Courts have consistently stated that the "in custody" determination is governed by an objective test. In Stansbury v. California, 511 U.S. 318 (1994), the U.S. Supreme Court held that courts must examine "all of the circumstances surrounding the interrogation" and determine "how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her 'freedom of action." Id. at 322, 325 (citing Berkemer v. McCarty, 468 U.S. 420, 440 (1984)); see also, State v. Easler, 327 S.C. 121, 128, 489 S.E.2d 617, 621 (1997); Bradley v. State, 316 S.C. 255, 257, 449 S.E.2d 492, 493-94 (1994).
But certain personal characteristics may matter. The U.S. Supreme Court has never clearly indicated whether some specific characteristics of the suspect-such as age or mental status-should be considered in the analysis. In Yarborough v. Alvarado, 541 U.S. 652 (2004), the Court held that the state court's failure to consider Alvardo's age and prior experience with law enforcement was not an unreasonable application of clearly established federal law under the Antiterrorism and Effective Death Penalty Act of 1996. The Court reasoned that precedence "has not stated that a suspect's age or experience is relevant to the Miranda custody analysis, and counsel for Alvarado did not press the importance of either factor on direct appeal or in habeas proceedings." Id. at 666. But, the Court has never squarely addressed the merits of this question. If such an issue were to come before the Court in the future, it has been suggested that certain personal characteristics would be relevant to the custody determination in some contexts. Id. at 669 ("There may be cases in which a suspect's age will be relevant to the 'custody' inquiry under Miranda v. Arizona.") (O'Connor, J., concurring) (citations omitted); id. at 673-74 ("[T]he 'reasonable person' standard does not require a court to pretend that Alvarado. . . was the statistically determined 'average person'-a working, married, 35-year-old white female with a high school degree. . . [T]he precise legal definition of 'reasonable person' may, depending on the legal context, appropriately account for certain personal characteristics.") (Bryer, J., joined by Stevens, J., Souter, J., and Ginsburg, J., dissenting).
Thus, in determining custody, consider the following factors: * The location of the questioning * The duration of the questioning * The purpose of the questioning * The circumstances of the questioning * How the suspect got to the police station (i.e., did he come voluntarily or was he escorted by the police; how many police officers were present; whether any weapons were drawn) * Was the suspect's access to an exit blocked or was the suspect otherwise not free to leave? * The suspect's age, experience and mental statusSee, e.g., Berkemer, 468 U.S. 420; State v. Evans, 354 S.C. 579, 584, 582 S.E.2d 407, 410 (2003). Note that custody for Fourth Amendment purposes is not the same as custody for Fifth Amendment purposes. See Berkemer , 468 U.S. 420. In the context of roadside questioning, the suspect's "freedom of action [must be] curtailed to a degree associated with formal arrest" in order to trigger the requirement of Miranda warnings. Id. at 440 (internal quotations omitted); see also Peele, 298 S.C. 63, 378 S.E.2d 254 (the performance of field sobriety tests at the request of a police officer following a routine traffic stop does not trigger Fifth Amendment rights); State v. Morgan, 282 S.C. 409, 319 S.E.2d 335 (1984) (Miranda warnings are not required for statements made at the scene of a traffic accident to be admissible); but cf. Easler, 327 S.C. at 127, 489 S.E.2d at 620 (holding that the case did not involve a routine traffic stop where officers were advised that there had been an accident and went looking for an individual who had left the scene based on a description given by two eyewitnesses).
In State v. Evans, 354 S.C. at 584, 582 S.E.2d at 410, the S.C. Supreme Court held that Evans was in custody and should have been warned of her Miranda rights before she confessed to setting her trailer-home on fire and killing her three small children. After the...