Criminal Procedure

1. Criminal Procedure Class Eight

2. Today’s Topics: Confessions • Right to counsel • Massiah Doctrine • After formal charges • Covert activity • On-going investigation • Waiver • Exclusionary rule

3. Today’s Topics: Identification • Right to counsel • Due process limitations

4. Confessions: Sixth Amendment Right to Counsel

5. Massiah Doctrine • Predates Miranda by two years • Holding: Sixth Amendment violated when agents deliberately elicited confession after D had been indicted and in the absence of his attorney

6. Massiah Doctrine • Rationale: To deny an accused counsel during this period denies her effective representation at only stage when legal aid and advice would help • Constitutionalized version of professional ethics rule (adverse party may only be contacted through counsel)

7. 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

8. “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]

9. Brewer Facts Des Moines Attorney • Advice to defendant not to speak • Agreement with police not to question

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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?

17. On-going Investigation • Massiah not intended to curtail government efforts to continue to investigate crime with which suspect has been charged

18. 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

19. 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

20. 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.

21. 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.

22. 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)

23. 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

24. 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

25. 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

26. 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)

27. 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)

28. 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

29. Chapter IV: Identification

30. 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

31. Types of Identification Evidence • DNA • Handwriting analysis • Fingerprint evidence • Video surveillance cameras • Eyewitness testimony

32. 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?

33. 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.

34. 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

35. 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

36. 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?

37. Examples of Eyewitness Procedures • Photo spread • Lineup • One on one show-up

38. 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?

39. 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

40. 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

41. 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

42. 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

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

44. Right to Counsel Review • Procedure: Lineup, before formal charges, without counsel • Result: Admissible • Case: Kirby v. Illinois

45. 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

46. Right To Counsel Review • Procedure: Photo spread, before or after formal charges, without counsel • Result: Admissible • Case: Ash

47. Due Process Limitations • Stovall v. Denno • Test: Totality of circumstances • Result: Fundamental fairness may require exclusion of identification testimony

48. 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

49. 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

50. 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