Criminal Procedure : Week of 22 April

22 April

• Wren: Pretext arrests are OK. Your motivations don't matter, if you are acting within the law.
• State v. King: a definition of arrest from the WI SC. A person is under arrest when freedom of movement is restricted; the arresting officer intends to restrain the person; the person believes that he/she is in custody.
• Atwater: serial seatbelt violator. It's OK to arrest without a warrant, if there's probable cause. But 4A says she should be free from "unreasonable" seizures. So was this unreasonable? If we find this unconstitutional, we're simply substituting our judgment for that of the police officer. Have we then eviscerated the term "unreasonable" of any meaning?
• The attorney needs to see the world from the client's point of view, and inform the client in a way that permits the client to make a good decision.
• If it weren't for the statutes authorizing the police to make arrests, arrest would be a crime.
• The fifth amendment. Weee! Statements must be voluntary. What does that mean? Why would it have to be voluntary? Due process.
• Poking at the edges of Miranda: it prevents us from using statements in our case in chief-- it doesn't prevent us from using them to impeach other statements.
• Miranda was a great educational thing for the US on Con Law. Also, it was a scandal at the time (movements to impeach justices, even). Why do we warn people about 5A rights, but not 4A? Violating 5A rights requires that the police get YOU to do something (they can violate your other rights without your participation). There's actually a lot less violence in interrogations nowadays. Maybe the warnings are not so much for the defendants as they are for the police: we've kind of absorbed these concepts.

23 April

• Discussion of yesterday's supreme court decision regarding search incident to an illegal arrest.
• Note that 5A doesn't protect you from coercion: it just means that coerced statements can't be used against you.
• Discussion of why we are worried about custodial interrogation: the atmosphere, etc., all tend to add up to worries about whether statements are voluntary and true.
• The scope and duration of a stop is limited by the reason for the warrant exception: a need to stop someone and disambiguate the situation. If you want to do more than that, you need a warrant.
• There is a guest: a prospective law student-- a lay person whose opinion we might consult about whether someone is under arrest.
• What is it, in the context of Miranda to waive? You have the right to remain silent, the right to have counsel present, etc. You are waiving the right not to condemn yourself out of your own mouth.
• OK, how do you waive? Is just talking enough? Or do you have to sign a document? If you say "I don't want to answer any more questions," what has to happen before they can question you again? Remember, interrogation is anything (words or gestures) designed to produce an incriminating statement.
• If we've been questioning a guy, and he asks us to stop, we can't start again until he initiates it. So what counts as initiation, and how careful do we have to be? It's really a question of preserving the evidence: how much do we want to be able to use this in court? That would govern how strict we want to be about repeatedly warning him, and it would also make us more conservative about deciding whether or not he has resumed talking to us.
• Advising the cops: how far can they go in terms of deception? Making a suspect believe he has an obligation that he does not, etc. Note that many of our cases deal with situations where the court doesn't want to let the guy go-- they know he is guilty, so they make a rule that will allow the guy to stay convicted.
• So the cops have legal authority to deceive (with some limits: they can't impersonate the suspect's attorney). The limit of the deception is just this: the suspect's statements must not be involuntary. That's only the technical limit, though: we also don't want to undermine the ability of the cops to do their job. If people can't tell who the good guys are any more, that's no help. If you are advising the police, a big part of your job is to help them see the potential negative consequences of the lawful courses of action they might pursue.
• What is coercion? Anything that overwhelms my will to not comply. So note that this will vary from person to person.
• Due process requires that statements used to convict somebody be voluntary. (see Dickerson, where the court is asked to overrule Miranda: why did Rhenquist say this was a constitutional rule? because it's a nice bright-line rule for police to follow, and it makes a lot of stuff admssible. Cops LIKE Miranda because it makes their job easier).
• 6th Amendment: the right to counsel.
• What if the confession is the product of interrogation after an illegal arrest? This, and other excitement tomorrow...

24 April

• Cops can stop you for discussions even if they have probable cause for arrest: that is a tricky plan.
• The purpose of giving Miranda warnings is not to help people not answer questions: it is to make sure the answers to questions are admissible.
• There isn't an exclusionary rule ordinarily for 5A violations.
• Rescue exception: we have a WI case that involves the exception, even though nobody actually got rescued. The question is whether the interests are aligned with a legitimate rescue attempt.
• Physical evidence found as a result of 6A and 4A violations is suppressed (fruit of poison tree), but not so much for 5A.
• False confessions: how big a problem are they? Why might they confess: to get someone else of the hook, for notariety, out of fear that things will be worse if they don't, because they feel bad about something else, or they were coerced.
• See the AZ Temple case.
• Why don't we admit that we're torturing people and have warrants for it?