Criminal Procedure

Class Eight

Today’s Topics: Confessions

• Right to counsel

• Massiah Doctrine

• After formal charges

• Covert activity

• On-going investigation

• Waiver

• Exclusionary rule

Today’s Topics: Identification

• Right to counsel

• Due process limitations

Confessions: Sixth Amendment Right to Counsel

Massiah Doctrine

• Predates Predates MirandaMiranda by two years by two years

• Holding: Sixth Amendment violated when Holding: Sixth Amendment violated when agents deliberately elicited confession after agents deliberately elicited confession after D had been indicted and in the absence of D had been indicted and in the absence of his attorneyhis attorney

Massiah Doctrine

• Rationale: To deny an accused counsel Rationale: To deny an accused counsel during this period denies her effective during this period denies her effective representation at only stage when legal aid representation at only stage when legal aid and advice would helpand advice would help

• Constitutionalized version of professional Constitutionalized version of professional ethics rule (adverse party may only be ethics rule (adverse party may only be contacted through counsel)contacted through counsel)

Developmental Hiatus

• After Massiah, confessions analyzed under Sixth Amendment right to counsel entered dormant period

• Miranda gained ascendancy as vehicle for addressing propriety of confessions

• Doctrine regained prominence in 1977

“After Formal Charges”

• Brewer v. Williams (Christian Burial speech case)

- Discussed in search and seizure context concerning inevitable discovery doctrine. [Grid that would have led to discovery of murder victim’s body if suspect had not confessed]

Brewer Facts

Des Moines Attorney

• Advice to defendant not to speak

• Agreement with police not to question

Brewer Facts

Davenport Attorney• Advice to defendant not to make any

statements until consulting with his Des Moines attorney

• Direction to Des Moines officers that D was not to be questioned until after D had consulted Des Moines attorney

Additional Facts

• D arrested and arraigned for child’s murder• Never during 160 mile trip did D express a

willingness to be interrogated• Frequently said, “when I get to Des Moines and

see [counsel], I am going to tell you the whole story.”

• Detective knew D was former mental patient

Additional Facts

• Detective knew D was deeply religious• Christian Burial’s speech basically urged D to lead

detectives to girl’s body so she could get a decent Christian burial - - particularly before snow storm made it impossible to find her

Brewer’s Holding

• D’s incriminating statements to police were obtained in violation of Sixth Amendment because adversarial judicial proceedings had commenced against him. Statements made were result of deliberate elicitation

• Concept familiar from Rhode Island v. Innis

Brewer v. Williams: Waiver

• D can waive right to counsel

• Valid waiver not secured here

• Valid waiver requires State to prove intentional relinquishment or abandonment of a known right or privilege

Brewer v. Williams: Lawyer Request?

• Suspect does not have to request lawyer to trigger Massiah protections

• Notice: waiver requires not merely comprehension but relinquishment

• Contrast Miranda, where suspect must actually invoke right to counsel

Covert Police Activities• More protective than Miranda

– Miranda only applies to custodial interrogation - - thus suspect has to know he is speaking to police officer

• Contrast

– Jailhouse plant: U.S. v. Henry

– Listening post: Kuhlmann v. Wilson

• Analytical key: Is this a “passive listener”? Or are they eliciting information? Is the informant a state agent?

On-going Investigation

• Massiah not intended to curtail government efforts to continue to investigate crime with which suspect has been charged

On-going Investigation

• Only limits contact police may have with suspect once formal charges has begun and right to counsel attaches.

• Issue: Sixth Amendment prohibits officer from getting information from the accused on charged crimes– Maine v. Moulton

Waiver

• Query: Under what conditions can D be said to have waived his 6th Amd rights?– Brewer v. Williams held gov’t must show more

than simply that D received warnings and elected to speak

• Possible approach: Conformity with Miranda waiver doctrine

Waiver Scenarios

• Post-Miranda warning waiver– Issue: In Miranda context, warnings provide suspect

with all information needed to make a knowing waiver. Does the same apply for waiver of 6th Amd right to counsel?

– Patterson v. Illinois: D, after indictment, received Miranda warnings, signed waiver form, and confessed. He never invoked his right to counsel. Court rejected argument that Miranda warnings were not adequate to inform D of his 6th Amd right to counsel.

Waiver Scenarios

• Post-invocation waiver– Michigan v. Jackson– Held: D could only have waived if he initiated

conversation and knowingly and voluntarily waived his rights.

Waiver Scenarios

• Unrelated crimes– Arizona v. Roberson: Inapplicable in 6th Amd

context

– McNeil v. Wisconsin: Invocation of 6th Amd right to counsel is offense specific

– Texas v. Cobb (Supp.) (determining which crimes are related to the crime charged)

Exclusionary Rule

• Issue: What should be the remedy for eliciting statement in violation of Sixth Amendment right to counsel?

• Open question• Possible Approach: Suppression of statement

– Arguments against: Analogy to good faith exception to Fourth Amendment exclusionary rule (inapplicable after weighing cost and benefits)

– Arguments favoring: Violation of Massiah not completed until confession admitted at trial

Review: Fifth Amendment v. Sixth Amendment

• Issue: Waiving right to counsel after invocation

• Fifth Amendment: Edwards v. Arizona

• Sixth Amendment: Michigan v. Jackson

• Same Test– Suspect must initiate– Knowing and voluntary

Review: Fifth Amendment v. Sixth Amendment

• Issue: Waiving right to counsel after Miranda warnings

• Fifth Amendment: Moran v. Burbine

• Sixth Amendment: Patterson v. Illinois– No additional warnings needed– CAUTION: Might be invalid if (1) attorney

attempting to reach (2) surreptitious conversation between undercover officer and D

Review: Fifth Amendment v. Sixth Amendment

• Issue: Waiver when not told attorney trying to reach

• Fifth Amendment: Statement valid – Moran v. Burbine

• Sixth Amendment: Statement Invalid– Patterson v. Illinois (footnote)

Review: Fifth Amendment v. Sixth Amendment

• Issue: Use of covert/undercover questioner

• Fifth Amendment: Permissible– Illinois v. Perkins

• Sixth Amendment: Invalid– U.S. v. Henry (unless no government effort to

elicit)

Review: Fifth Amendment v. Sixth Amendment

• Issue: Questioning about unrelated crimes after invocation of right to counsel

• Fifth Amendment: Prohibited – Arizona v. Roberson

• Sixth Amendment: Permissible– McNeil v. Wisconsin

Chapter IV: Identification

Concerns

• Bad IDs are “conceivably the greatest single threat to the achievement of our ideal that no innocent man shall be punished.”

• 1996 U.S. Department of Justice study, Convicted by Juries, Exonerated by Science

Types of Identification Evidence

• DNA

• Handwriting analysis

• Fingerprint evidence

• Video surveillance cameras

• Eyewitness testimony

Eyewitness Testimony: Scenario I

• Paradigm: In-Court Identification

• Can you identify the person who robbed your bank?

• Yes

• Would you please point that person out?

Eyewitness Testimony: Scenario I

• It is the defendant, seated there at the table

• May the record show that the witness has identified the defendant?

• The record will also indicate

• Are you certain of your identification?

• Yes, I had a good view of him at the time of the robbery.

Scenario II• Paradigm: Testimony Concerning Prior

Identification [I.e., an identification made outside of court]

• Sometime has passed since the robbery, has it not?• Yes• But, did you have an opportunity prior to trial to

make an identification?• Yes

Scenario II• When was that?• I went to a lineup and viewed seven men. I picked

out the defendant at that time also. That was several months ago.

• Where you sure then as to your identification?• Yes• Was your memory even clearer several months

ago than it is today?• Yes

Exercise: Policy Considerations

• Does the defendant have the right to sit in the spectator or public section of a courtroom when a witness at trial seeks to make an identification?

• Assume D who asked for the in-court equivalent of a lineup has “stacked” the courtroom with people from her community or her immediate family who most resemble D.

• Should this be permitted?

Examples of Eyewitness Procedures

• Photo spread

• Lineup

• One on one show-up

Impact Right to Counsel Violation: In-Court ID

• In-Court identification testimony (Scenario I)• U.S. v. Wade

– Issue: Whether in-court identification should be excluded from evidence because D was placed in post-indictment lineup without notice to counsel

– Issue Restated: Should prosecution have opportunity to establish that in-court identification was based on observations of D other than the lineup?

Purging the Taint: Items Considered

• Prior opportunity to observe

• Any discrepancies between pre-lineup description and actual description

• Identifying someone else prior to lineup

• Identifying D by picture prior to lineup

• Failure to identify D on prior occasion

• Lapse of time

Impact Right to Counsel Violation: Prior ID

• Use of testimony in court concerning out of court identification (Scenario II)

• Gilbert v. California

• Contrast, Wade

• Per se rule of exclusion

• Harmless error test

When Does Right to Counsel Attach

• Kirby v. Illinois

• Initiation of judicial criminal proceedings is starting point of adversary system

• Filing formal charges (e.g. indictment)

• Consequence: Wade and Gilbert do not apply to pre-formal charges lineups or show ups

Right to Counsel: Photo Spread

• Context: Photograph identification procedures [mug books, photo “lineup”

• United States v. Ash• Holding: no right to counsel, regardless if

held before or after indictment• Rationale: D is not present at photographic

display. No reason to have advisor or spokesperson

Exercise

• Identify at least two suggestive possibilities that could occur during a photo display.

Right to Counsel Review

• Procedure: Lineup, before formal charges, without counsel

• Result: Admissible

• Case: Kirby v. Illinois

Right To Counsel Review

• Procedure: Lineup after formal charge, without counsel

• Result: No out of court identification testimony

• Result: No in-court identification testimony unless taint purged

• Cases: Gilbert/Wade

Right To Counsel Review

• Procedure: Photo spread, before or after formal charges, without counsel

• Result: Admissible

• Case: Ash

Due Process Limitations

• Stovall v. Denno

• Test: Totality of circumstances

• Result: Fundamental fairness may require exclusion of identification testimony

Application Examples

• Neil v. Biggers

• Simmons v. United States

• Foster v. California

• Theory: Due process test protects against identification so impermissibly suggestive as to give rise to very substantial likelihood of irreparable misidentification

Determining Strength ofWitness’s Pre-ID “Picture”

• How good a look before or during? crime• How attentive• Any memory loss• Any variance from description given by

witness (clarity and detail)• Having identified anyone else• Degree of certainty at time identification

made

Reliability

• Manson v. Brathwaite

• Issue: Whether due process compels exclusion of pre-trial I.D. evidence obtained by police procedures both suggestive and unnecessary

• NOTE: Reliability becomes linchpin in determining admissibility of I.D. testimony

Factors In Reliability Determination

• Opportunity to view

• Degree of attention

• Accuracy of description

• Witness’ level of certainty

• Time lapse between crime and confrontation

Other Considerations

• Prosecutorial steps to counter collateral issues of prejudice

• Voice identification

• Hypnosis– Open Supreme Court question– Three views in lower courts