4th 5th and 6th Amendments

4 October

• Samuels
  Samuels wants the totality of the circumstances test for the voluntariness of witness statements. But the due process clause doesn't reach witnesses, because their interests aren't the same.

  Still, in the right case, the court is willing to consider 6 factors (4 in favor of suppression, 2 not) in deciding whether a witness statement has been obtained egregiously. Note that the defense may not even find out about the way in which statements were obtained until after the trial.

  Normally this would be decided before trial, via motion to suppress; but this happened at trial apparently. Still, in a situation like this (prior inconsistent statement), does that mean the judge is making a credibility determination?

  And note that Tisha was younger when she made her initial statements; maybe by the time of trial, she's more mature.

• The Barry Bonds case: MLB steroid use. Trainer is persuaded to testify (he withstood a year of confinement on contempt, so he was a tough cookie), by elaborate threats and promises from the prosecution (to prosecute/grant immunity to family members, etc.). The case has not been tried yet.

  Can you make the argument that these threats invalidate the statements?

• Reliability and dignity are kind of the fundamental policies in play here. Is the dignity of the individual on trial offended, and how is the reliability of the statement affected?
• Miranda
  Everybody "knows" the holding of this case, but they don't really understand it.

  Even if you've got a bad client, and bad crimes, there might still be an issue worth litigating. Ernesto Midanda was not a nice guy, but he left a legacy that really changed policing.

  This was Thurgood Marshall's last case as solicitor general (he lost). And Tilford Taylor (Nuremberg prosecutor) argued for one of the amici. So this is 5A, and 14A (there were 3 state cases, and 1 federal).

  Now where did this "right to a lawyer" come from? No lawyer is mentioned in 5A. It's because SCOTUS is concerned about the power imbalance in police interrogation, and "voluntary and intelligent" waiver of the right means you need to understand the right.

  Don't forget (NY v. Quarles?) about the public safety exception to Miranda. But see Brandeis (quoting Olmstead)

6 October

• So, under Miranda, a suspect has the option to waive his/her rights. Is the question waiver (i.e., did you waive?); are you presumed to be exercising your rights unless you waive?
• If there's a dispute as to whether the right was waived, the burden of proof is on the government. A waiver sounds like something you would do affirmatively: an intentional relinquishment of a known right. So the default position, in theory, is that you haven't waived. It's not self-executing (i.e., absent a claim that a statement was involuntary, the state doesn't have to show voluntariness).
• Another inquiry might be whether you invoked your mights or not. This is different from whether you waived: it shifts the burden to the defendant, implicitly, to show that the fifth amendment privilege was invoked.
• If a suspect is in custody, and has been warned, and then answers questions, there's either an implicit waiver or a failure to invoke the right, and it become's the defendant's problem to show that something is amiss.
• The burden of production was always on the defense: the judge isn't under some independant duty to raise the issue. The burden of persuasion, per Miranda is on the state, but as we move forward, the court is shifting the burden of persuasion to the defense, at least some of the time. That's Davis.
• Davis v. Unite Stated
  So, do statements like, "I think I might need a lawyer" count as invoking your Miranda rights?

  Here, the court is really mixing the concepts of waiver and invocation of 5A rights. What action is required: a waiver (which must be proved by the government), or an invocation (which the defendant must make)? Here, it seems like an ambiguous statement wasn't sufficient, which means invocation is the issue.

  Note that NCIS did a model job here: they gave a written warning, they followed up on his questions when he mentioned lawyers. Nevertheless, before we know it, we're arguing about an invocation, not a waiver.

  The court says that NCIS did great work, but says that interrogators aren't required to go to the same lengths: it would be burdensome on them, and would undermine investigations, to require that they ask clarifying questions when confronted by an ambiguous statement about wanting counsel.

  So: if you get an ambiguous statement, keep questioning. And as a practical matter, if you're not stopping to clarify, that means you're the one deciding what's ambiguous.

  "Don't I get a lawyer?" That's both a timid request for a lawyer and also not a good invocation of the right.

• Berghuis v. Thompkins, 130 S.Ct. 2250 (2010)
  2 3/4 hours of custodial interrogation is just a monologue by the cops. Berghuis says essentially nothing. Then: are you a Christian? Are you praying for forgiveness that you shot the guy? Answer: yes.

  Defense moves to suppress, saying that the interrogation should have stopped because he had not waived his right to be silent.

  Nope: you need to affirmatively assert your desire to remain silent, because merely being silent is ambiguous.

  So here's where we are: an invocation has to be explicit and unambiguous, but a waiver can be implicit and ambiguous.

  See the last footnote in Sotomayor's dissent-- it's instructive on this point.

• Edwards v. Arizona
  Once a defedant has exercized 5A rights, the police can't re-initiate questioning. They can't badger the suspect.
• In 1968, 2 years after Miranda congress enacts 18 USC § 3501: a statement shall be admissible in the (federal) courts of the US, if the defendant made it voluntarily.

  Does this overrule Miranda? In other words, was that a constitutional case or a procedural guideline? The case talks about prophylaxis-- it's sort of an informed consent rule. That sort of invites the argument that it's an exercise of the court's supervisory power.

  If Miranda is not a constitutional rule, congress is free to enact statutes overriding it. On the other hand, if it is constitutional, it can't be overriden by a mere statute (see Marbury).

  That's Dickerson: the ambiguity lasted until 2000. Everybody expected Miranda to be overruled, actually, so it was nice that it got affirmed as a constitutional holding.

  Rhenquist liked stability and finality; clarity of rules. And that's what he stuck by.