(7C) Ok to promise to bring D’s cooperation to prosecutor’s attention Baldwin – promise of leniency = forbidden, but can honestly promise consideration This is a truism & D is a career criminal 5A & MIRANDA: right against self-incrimination in case Individual compelled crim Only applies if in jeopardy of prosecution :., can be forced to testify w/ immunity, at least before grand jury D need not accept immunity offer is sufficient to eliminate – risk of prosecution Doesn’t apply to previously written docs, though could include statements made before previous tribunals apply to the act of turning over diary, but lose protection if immunity for that act interrogation” = inherently coercive & unreliable, so no Miranda always – “Custodial case-by-case totality of circumstances test Must warn Ds re: (1) Right to silence (2) Anything said can & will be used against (3) to presence of atty, either retained or appointed (4) If indigent, atty will be appointed D can affirmatively waive rights once warned of them Must be voluntary & knowing Burden on gov to prove waiver If D says want to talk to atty, Qs must stop immediately & must provide atty w/in reasonable time If D says no more Qs, no more Qs Can’t use exercise of rights against D Dissent: Majority sweeping generalizations w/o underlying data How can you trust waivers, but not other statements? Interrogation has pressures, and this isn’t so bad it’s coercive always Confessions will wither away & disappear Ends up helping police b/c pre-confession warnings in favor of voluntariness Biggest effect has been to improve police training Ds overwhelmingly rights Waiver issues end up turning this almost into the case-by-case totality of circumstances test that court wanted to avoid Invocation of Rights: Rule: Must be clear & unambiguous (Davis) (7C) No invocation by that out of my face I don’t got Banks – “Get nothing to say” in response to waiver form Cannot be anticipatorily invoked (McNeil) Substantial break in chain of custody/questioning breaks chain of invocation Limits:
Baldwin (7C) – Ok to promise to bring D’s cooperation to prosecutor’s attention promise of leniency = forbidden, but can honestly promise consideration This is a truism & D is a career criminal 5A & MIRANDA: Individual right against compelled self-incrimination in crim case Only applies if in jeopardy of prosecution :., can be forced to testify w/ immunity, at least before grand jury D need not accept immunity – offer is sufficient to eliminate risk of prosecution Doesn’t apply to previously written docs, though could include statements made before previous tribunals apply to the act of turning over diary, but lose protection if immunity for that act Miranda – “Custodial interrogation” = always inherently coercive & unreliable, so no case-by-case totality of circumstances test Must warn Ds re: (1) Right to silence (2) Anything said can & will be used against (3) to presence of atty, either retained or appointed (4) If indigent, atty will be appointed D can affirmatively waive rights once warned of them Must be voluntary & knowing Burden on gov to prove waiver If D says want to talk to atty, Qs must stop immediately & must provide atty w/in reasonable time If D says no more Qs, no more Qs Can’t use exercise of rights against D Dissent: Majority sweeping generalizations w/o underlying data How can you trust waivers, but not other statements? Interrogation always has pressures, and this isn’t so bad it’s coercive Confessions will wither away & disappear Ends up helping police b/c pre-confession warnings in favor of voluntariness Biggest effect has been to improve police training Ds overwhelmingly rights Waiver issues end up turning this almost into the case-by-case totality of circumstances test that court wanted to avoid Invocation of Rights: Rule: Must be clear & unambiguous (Davis) Banks (7C) – No invocation by “Get that out of my face I don’t got nothing to say” in response to waiver form Cannot be anticipatorily invoked (McNeil) Substantial break in chain of custody/questioning breaks chain of invocation Limits:
Criminal%20Procedure%20-%20Cheh%20-%20Fall%202011.docx