Crim Pro 4

1) CONSTITUTIONAL CHALLENGES

• 14TH AM due process
• 6TH AM right to counsel
• 5TH AM MIRANDA doctrine

2) NY LAW

• Same as above, AND
• INDELIBLE RIGHT TO COUNSEL

INVOLUNTARINESS—i.e., police coercion OVERBEARS the suspect's will

1) FORMAL CHARGING—not arrest

2) CHARGES FORMALLY FILED control what interrogation is barred in the absence of counsel

• interrogation BARRED as to those charges FORMALLY FILED
• NOT barred, as to other UNCHARGED criminal activity

1) GREATER PROTECTION than Sixth Amendment of US Constitution

2) SIGNIFICANT JUDICIAL ACTIVITY (even if before formal charging)

3) INTERROGATION as to charges filed or ANY MATTER is barred, in absence of attorney

4) ATTORNEY MUST BE PRESENT for wavier to occur

• right to remain SILENT
• anything said can and will be USED AGAINST YOU in a court of law
• right to an ATTORNEY
• attorney will be APPOINTED for you, if you cannot afford one

1) ATMOSPHERE OBJECTIVELY CHARACTERIZED by

• police DOMINATION and COERCION
• FREEDOM OF ACTION limited in a SIGNIFICANT WAY

2) CONDUCT POLICE

• KNEW or SHOULD HAVE KNOWN
• was likely to illicit an INCRIMINATING RESPONSE

3) PUBLIC SAFETY EXCEPTION—any incriminating statements are ADMISSIBLE against the suspect, where IMMEDIATE CONCERN FOR PUBLIC SAFETY makes giving Miranda warning impractical

1) KNOWING & INTELLIGENT wavier

• KNOWING: suspect understands NATURE of RIGHTS, and CONSEQUENCES of abandoning
• VOLUNTARY: not the product of POLICE COERCION

2) PROSECUTION must prove by preponderance of evidence (silence or shoulder-shrugging are NOT enough)

1) RIGHT TO SILENCE—police

• must "SCRUPULOUSLY HONOR" right to silence
• CANNOT BADGER suspect
• must wait a SIGNIFICANT PERIOD OF TIME before restarting interrogation
• must obtain a VALID WAIVER

2) RIGHT TO COUNSEL

• request for counsel must be SUFFICIENTLY CLEAR
• ALL INTERROGATION MUST CEASE unless initiated by suspect

• Admissible to IMPEACH on cross-exam of ∆
• Failure to give warnings does NOT required suppression of PHYSICAL FRUITS (e.g., discovered weapons)
• Harmless error doctrine—∆ would have been convicted anyway even w/o tainted evidence