1. ADMISSIONS & CONFESSIONS FOR STREET OFFICERS Portland – October 24, 2013 Bangor – October 30, 2013 1

2. Constitutional Rights of Citizens In terms of individual rights against government intrusion, the U.S. Constitution sets the floor, not the ceiling. States are permitted to increase protections, but cannot diminish the rights enumerated in the Constitution. States often enact legislation or interpret their own constitutions to provide more protection to their citizens. 2

3. Admissions & Confessions United States Constitution Amendment V. Maine Constitution Art. I, Section 6. No person shall be... compelled in any criminal case to be a witness against himself. In all criminal prosecutions, the accused... shall not be compelled to furnish or give evidence against himself. 3

4. More Protection Article I, Section 6, of the Maine Constitution has been interpreted by the Maine Supreme Judicial Court to provide more protection to Maine citizens than does the Fifth Amendment of the U.S. Constitution. Specifically, the State must prove voluntariness of an admission or confession beyond a reasonable doubt. This is a big deal! The feds and other jurisdictions only have to prove voluntariness by a preponderance of the evidence, and it takes coercive police conduct in obtaining an admission or confession to render a statement involuntary. Maine law requires proof beyond a reasonable doubt that statements to law enforcement are the product of a suspect’s exercise “free will and rational intellect.” Coercive police conduct is not required to establish involuntariness in Maine courts. 4

5. Voluntariness – Relevant Factors Details of the interrogation Duration of the interrogation Location of the interrogation Whether the interrogation was custodial Recitation of Miranda warnings Number of officers involved Persistence of the officers 5

6. Relevant Factors Police trickery Threats Promises or inducements to defendant Defendant’s age Defendant’s physical and mental health Defendant’s emotional stability Defendant’s conduct 6

7. Voluntariness – Tactics Tape the interviews. Ask specific questions regarding defendant’s condition if presented with indications that condition may impact voluntariness. 7

8. Miranda v. Arizona - Holding “The prosecution may not use statements … stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” 8

9. Miranda v. Arizona - Holding “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 9

10. Miranda v. Arizona - Holding “As for procedural safeguards to be employed … the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” 10

11. Miranda v. Arizona – Holding “The defendant may waive … these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual indicates in any manner that he does not wish to be interrogated, the police may not question him.” 11

12. Miranda - Custody A person is “in custody” if a reasonable person standing in the shoes of the defendant would not “have felt he or she was … at liberty to terminate the interrogation and [or] leave.” 12

13. Miranda - Custody Alternatively, a person is “in custody” if he or she was the subject of “a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.” Guard against de facto arrest. 13

14. Miranda Custody – Factors Locale where statements made Party who initiated contact Existence or nonexistence of probable cause to arrest (if communicated to suspect) Subjective views, beliefs, or intent that police manifested to defendant (to extent they would affect how reasonable person would perceive freedom to leave) 14

15. Miranda Custody– Factors Subjective views or beliefs defendant manifested to police (to the extent officer’s response would affect how reasonable person would perceive freedom to leave) Focus of the investigation (as reasonable person would perceive it) Whether suspect was questioned in familiar surroundings 15

16. Miranda Custody – Factors Number of law enforcement officers present Degree of physical restraint on suspect Duration & character of interrogation 16

17. Miranda Custody - Tactics At beginning of interview, tell the individual he or she is not under arrest and is free to leave at any time. Tape record your suspect interview! 17

18. Miranda - Interrogation Express questioning or its functional equivalent, i.e., words or actions on the part of the police … that the police know or should know are reasonably likely to elicit an incriminating response from the suspect. 18

19. What is not interrogation? Volunteered statements Clarifying questions Routine, booking questions Roadside questions during traffic stop Questions during a Terry stop 19

20. Miranda -- Warning Read only from card/form. NOT memory! Write down verbal responses. Depending on suspect, ask him or her what the rights mean to him or her. 20

21. Miranda -- Waiver Must be knowing, intelligent and voluntary. Express oral/written waiver not required, but preferred. Tactical considerations: – audio or video tape warnings & waiver; – ask specific questions regarding suspect's condition. 21

22. Miranda -- Invocation If suspect clearly invokes right to silence, interview must stop immediately. If suspect clearly invokes right to counsel, interview must stop until counsel is present. Police do not have to call lawyer, just stop asking questions. Suspect in custody may invoke rights at any time, even if suspect had previously waived. If invocation is ambiguous, police may continue with interview, but better practice is to clarify the invocation. 22

23. Miranda Inapplicable if No Custody When a suspect who is not in custody chooses to meet with and talk to police, it is clear that he is not asserting his right to remain silent. Therefore, if during non-custodial interrogation a suspect asserts his right to remain silent, police may continue to attempt questioning. The suspect is free not to respond and free to leave. The suspect’s decision to remain and to respond to further questions indicates his or her choice to speak with police rather than to assert the right to silence. 23

24. Miranda – Right to Remain Silent Assertion of Right to Silence by In-Custody Suspect Cease all interrogation efforts immediately. No further interrogation efforts on anything until: The suspect has been left alone by police for at least several hours, Miranda warnings are repeated, and waiver obtained, or the suspect initiates new discussion with police of his involvement in criminal activity, Miranda warnings are repeated, and waiver obtained, or the suspect leaves custody whereupon there is no requirement of Miranda warning and waiver. 24

25. Miranda – Right to Legal Counsel Assertion of Right to Counsel by In-Custody Suspect Cease all interrogation efforts immediately. No further interrogation efforts on anything until: Legal counsel is actually present at any subsequent interrogation, Miranda warnings are repeated, and waiver obtained, or the suspect initiates new discussion with police of his involvement in criminal activity, Miranda warnings are repeated, and waiver obtained, or at least 14 days have elapsed after release from custody (custodial interrogation), Miranda warnings are repeated, and waiver obtained. 25

26. Shatzer Rule Prior to approaching a suspect to initiate interrogation, officers must determine whether a suspect has previously invoked the right to counsel while in custody or during a prior custodial interrogation. There must have been a 14-day break in custody since invoking the right to counsel. 26

27. Miranda violation -- Remedy Exclusionary Rule will be applied to exclude statements obtained in violation of Miranda. Fruit of the poisonous tree doctrine may not apply to suppress second statement obtained following Miranda warning/waiver after first statement was obtained as result of nondeliberate Miranda violation if first statement was voluntary. Fruit of the poisonous tree doctrine will not apply to suppress derivative physical evidence if only Miranda violation. 27

28. Miranda violation -- Remedy Public Safety Exception Warning not required if there is an immediate need to protect public safety that outweighs the suspect's interest in being informed of his or her rights. 28

29. Miranda violation -- Remedy Impeachment Exception Police may be called in rebuttal to impeach defendant testimony that contradicts statements made during illegal interview. 29

30. Sixth Amendment Right to Counsel - Sixth Amendment right to counsel attaches after defendant is formally charged in court, either by indictment, information, or complaint. Prosecutor involvement not required. -Right is Offense Specific: attaches only to charged offense, or other offenses that do not require proof of a fact that the charged offense does not require. -Police may initiate interrogation about uncharged offenses even if defendant is represented by counsel on charged offense. 30

31. Sixth Amendment Right to Counsel -Once right has attached, police may not interrogate defendant about charged offense unless either counsel is present or defendant has waived right to counsel. -Does not matter if defendant is not “in custody” for Miranda purposes. -Police may not elicit incriminating responses from defendant with undercover agent if right to counsel has attached and defendant is represented by counsel. -Undercover agents may act as "listening posts", i.e., not eliciting statements. 31

32. Sixth Amendment Right to Counsel Violation – Remedy Exclusionary Rule will be applied to exclude any statement obtained in violation of Sixth Amendment. 32

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