4th 5th and 6th Amendments

11 October

• Themes for today: badgering, and what is interrogation?
• RI v. Innis
  Three Miranda warnings; on the third time, he invokes. The boss cop says "take him down to the station, don't interrogate him, etc." But we get the dangerous gun smalltalk along the way.

  Interrogation can be either words or actions (designed to elicit an incriminating response). Note that (cf. Brewer) incorporation of facts that are specific to the defendant might make cop talk more interrogation-ish.

  So why the differing outcome between here and Brewer? Can it possibly be that the degree of interrogation is the decisive factor? But you have a right not to be interrogated at all!

  So here, it's not interrogation because there couldn't be a realistic expectation that the statements would produce an incriminating result. Some absurdity here: as long as the police think they are interrogating you with highly ineffective means, it's OK?

  We have an objective focus on the behavior of the police, and a subjective focus on the mental state of the person in custody. The intent of the officers isn't important (because obviously they're trying to get incriminating statements), just the nature of their conduct.

  One potentially helpful way of distinguishing the two is whether the cops might conceivably have had the conversation on their own, without the suspect present. In Innis, it's plausible, but far less so in Brewer. Or, from another angle, would prohibiting the utterance in question get us to a point where police are essentially prohibited from saying anything at all (which is obviously impractical)?

  Maybe the holding here is that questioning after invocation is prohibited, and there will be times when non-explicit things will count as questioning. Innis himself loses, but in this light, it's kind of a defense-oriented case.

  See footnote 5: by "incriminating response," we mean any statement that the prosecution is likely to want to use at trial (so exculpatory or inculpatory statements are both covered: i.e., falsely exculpatory statements that can be discredited at trial).

• Remember: there is nothing wrong with the police trying to get admissions of wrongdoing. What we are trying to prevent here is untrustworthy or coerced admissions.
• Dagnall
  Overruled by Montejo. You don't have to explicitly invoke your 6A right to counsel.
• Montejo
  The police can approach you, advise you of your rights, and ask if you want to waive your right to counsel until you personally invoke your rights. Then they can't revisit it at all.

  Practice tip: for every client, maybe get them to sign a document saying they invoke their right to counsel under 6A, and file it with the court and serve it on the prosecutor.

  Interesting ethical

• So what's the remedy for 5A violations?
  • Miranda (5A) Right to Counsel: if this right is violated, the statement is available for impeachment. If a defendant testifies, statements obtained in violation of Miranda can be used to dispute what he says. The state can't use it in their case in chief, though. Derivative evidence can be used as well: not the statement itself, but information gleaned from it. Remember: there is no explicit 5A right to counsel-- it exists to help you make more rational decisions about the rights you actually do have.
  • 5th Amendment Due Process: statement can't be used, even for impeachment, and none of its fruits can be had either.

13 October

• Note that the powerpoint slides have additional materials on WI law.
• At Marcus's house: 5:30 on 11/3.
• Rarely, if ever, will 5A violations be sanctionable under § 1983: have to show a strongly established pattern. In fact, in general, the remedies are disfavored: we're basically asking the courts to throw out evidence.
• 6A assistance of counsel. In olden dayes (England) the accused could not have a lawyer as to the facts; when it came to law, the lawyer could step in. 6A is a reaction against old-style court processes-- it grants trial rights.

  And these got expanded: at public expense, effective assistance.

• When does the right attach? When judicial proceedings have been initiated. It doesn't have to be told to the person, it doesn't have to be specifically invoked. So right at the initial appearance, in other words. Prior to the charging, there is no 6A right to counsel.
• This is why in Massiah (discussed in Ventris), the informant's tape gets thrown out: your 6A rights start when you are charged, and carry through the whole proceeding.
• So, is Brewer a continuation of the logic of Massiah? Yeah, pretty much: he had been arraigned, counsel was involved. The main difference is that in Brewer it was obvious that the cop was a cop, whereas in Massiah, the informant was undercover.
• One of the main resaons we're so protective of this right is that clients don't know the legal process. Even though an arraignment is a fairly perfunctory proceeding, an uninformed client might blurt out goodness knows what that might make the state's case stronger.
• For charges issued by summons, there's not a case saying exactly when the right attaches. In federal grand jury situations, you have no 6A right to counsel, but you do have a 5A right; they just can't come in the room (but you can go out and talk to them between every question if you want).
• McNeil v. Wisconsin (1991): the 6A right to counsel is specific to the offense charged; the cops can talk to you about other offenses not yet charged.
• Ventris
  The violation of the 6A right occurs when you're interrogated without the assistance of counsel. There might be some times when the introduction of the evidence is itself a constitutional violation (i.e., a 5A violation): that is never allowed.

  But if the violation is already in the past, the evidence can be introduced for impeachment.

  This is a softening of the stronger rule from Massiah.

• In about 80% of cases where defendants testify, they are convicted; in the majority of acquittals, the defendant remains silent.
• Bottom line: the right starts when you show up in court, no invocation is necessary, it's offense-specific, and if it's violated, the evidence collected can be used for impeachment.
• John Adams represented British soldiers accused in the Boston Massacre.