Chapter Five Interrogation & Identification Procedures All Images © Microsoft Corporation Written by Karmel Tanner May 2010

Self Incrimination: Fifth Amendment Limited to Testimonial Communications that Could Result in Conviction

Does NOT apply to: Body fluids — blood tests, breath tests, urine tests Tissue samples for DNA testing Identification procedures — photographs, line-ups, show-ups Handwriting and voice exemplars Movements — sobriety test, posing as directed, wearing clothing found at crime scene

Can NOT be used: Shield another person Protect against civil liability

Suspect must be informed of the right to remain silent prior to custodial interrogation

Custodial means the person is not free to leave

Warnings are NOT required: Temporary detention Traffic citation issued without taking the violator into custody

Interrogation includes both direct and indirect questioning

Miranda warnings must be given prior to custodial interrogation:

Waiver of Miranda warnings must be knowing, intelligent and voluntary: Knowing — suspect has been advised of the Miranda rights Intelligent — suspect has sufficient intelligence to understand the Miranda warnings Voluntary — no coercion can be used to obtain the waiver

Subsequent Interrogations If prior interrogation session violated Miranda rights: Statements from improperly conducted session are inadmissible

Subsequent Interrogations Statements obtained at later session may be admissible Must have proper Miranda warnings and waiver Fruit of Poison Tree analysis — case by case determination if prior error taints later interrogation sessions

Subsequent Interrogations If prior interrogation session was conducted properly (including valid Miranda waiver) and it ended without suspect invoking Miranda right to remain silent or to have an attorney present:

Subsequent Interrogations May resume interrogation at any time Suspect retains right to invoke Miranda at any time New Miranda warnings required only if suspect may have forgotten his/her rights

Subsequent Interrogations If prior interrogation session ended because suspect invoked Miranda right to remain silent Wait sufficient time to indicate rights will be scrupulously guarded New set of warnings and a waiver are required

Subsequent Interrogations If prior interrogation session ended because the suspect invoked Miranda right to have an attorney present : Must have attorney present at subsequent interrogation If officer initiates the interrogation, waiver valid only if attorney present when waiver is made

Subsequent Interrogations If prior interrogation session ended because the suspect invoked Miranda right to have an attorney present : If suspect requested to talk to the police — waiver of Miranda rights would be required BUT the waiver could be obtained without an attorney present

1 A suspect in a crime is contacted and asked to come into the station to meet with CID. The man confesses to some burglaries. Question A) This is illegal - he should have been Mirandized B) This is illegal - he should have been notified he was a suspect C) This is legal - there was no coercion D) This is legal - there was no custody

Identification Procedures Line-up Several people are shown to eyewitness Show-up One person is shown to eyewitness Photographic line-up Pictures are shown to eyewitness

Identification Procedures Fourth Amendment Rights Need reasonable suspicion in order to detain a suspect in the field to be identified Need probable cause to transport suspect to station (or other location) for identification or questioning

Identification Procedures Fifth Amendment Suspect can NOT claim Fifth Amendment as a reason to refuse to participate in identification procedures Sixth Amendment Suspect has the right to have an attorney present during show-ups and line-ups held after arraignment or indictment on the charges

Identification Procedures Fifth Amendment No right to have an attorney present during photographic line-up at any time

Identification Procedures Due Process: Line-ups and photographic line-ups must not be unduly suggestive Need sufficient selection — 5 to 7 people recommended People displayed need to look similar — should not have any features that make one person stand out

Identification Procedures Due Process: Anything that one person in the line- up is asked to do should be done by every person in the line-up Witnesses must make selection without coaching by police or others

Identification Procedures Show-ups are judged on the credibility of the eye witness.

Identification Procedures Consider: opportunity to observe suspect during crime degree of attention witness paid to suspect at crime scene level of certainty of witness when making identification

2 A photo line up is quickly put together on a serial rapist who is becoming increasingly violent. There is a B&W picture of the rapist and only one other B&W photo of a similar person can be found on short notice so 4 color photos are used: Question A) This is legal due to exigent circumstances B) This is legal because there is one other B&W photo C) This is illegal as it is unduly suggestive D) All of the above are true

Right to Counsel Sixth Amendment Right to Counsel — Basic Rules Government required to provide attorneys for defendants who cannot afford to hire an attorney Applies from arraignment through sentencing and first direct appeal

Right to Counsel Sixth Amendment Right to Counsel — Basic Rules Indigent defendant cannot be sentenced to jail unless he/she was given an attorney Defendant has the right to refuse an attorney at represent self

Right to Counsel Sixth Amendment Issues When Interrogating Suspect Right to counsel attaches at the arraignment or indictment After this point, police may interview suspect only if suspect has attorney present or has waived the right to counsel

Right to Counsel This rule applies to both police and police informants Applies to both in-custody and out-of- custody interrogation Only applies to charges on which suspect has been arraigned or indicted

Right to Counsel Applies to conversations with the defendant in courthouse Applies to interview of defendant by prosecution experts such as psychiatrists and polygraph operators

Chapter Five Interrogation & Identification Procedures