I. criminal procedure overview 3


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1. The 5th Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

  • The 5th Amend privilege against self-incrimination contains three basic elements: compulsion, incrimination and testimony (p.712)

  • Paradox inherent in the privilege: generally, the criminal law grants greater protections to innocent citizens than criminals (for example: under the 4th Amend police can only search if they have a good reason (i.e. probable cause and a warrant) to believe that the search will uncover evidence of a crime), but with the privilege against self-incrimination it works the other way, the greater the risk of self-incrimination, the broader the legal protection and the narrower the authority that is granted to the government – why is this the case? (p.711)

  • 5th Amend designed to prevent against the “cruel trilemma” if compelled to testify: perjury, self-incrimination or contempt (see Murphy below)

  • Even if client is innocent, there are many strategic reasons why a lawyer would not want to put them on the stand to give evidence (Prof Schulhofer Supp #6 p.31)

  • If witness is offered immunity to testify then the privilege does not apply as when a witness’s response will offer no fear of criminal penalty, then there is no protection for testimonial privacy (Balsys)

  • Over the years, the SC has at times restricted the scope of the 5th Amend privilege not because of any theory but because of the government’s need to gather evidence and information in order to govern: if govt is unable to gather evidence than criminal justice system may not be able to do its job v. if the govt can get any info it wants than the privacy and autonomy values underlying the privilege might become a nullity (p.713)

Murphy v. Waterfront Commission (1964) (p.727) (policies underpinning the 5th Amend privilege)

  • Held (Goldberg J): The privilege against self-incrimination develops our liberty; shows our noble aspirations and unwillingness to subject someone to the cruel trilemma of self-accusation, perjury or contempt; preference for accusatorial rather than an inquisitorial system; fear that self-incriminating statements will be elicited by inhumane treatment and abuses and our realization that the privilege whilst sometimes a “shelter to the guilty” is often a “protection to the innocent”.

Balsys (1998) (p.728) (5th Amend does not protect against prosecution by foreign nation)

  • Held: 5th Amend privilege does not extend to the risk of prosecution by a foreign nation. Also, if a witness is offered immunity to testify then the privilege does not apply as when a witness’s response will offer no fear of criminal penalty, then there is no protection for testimonial privacy.

Bram (1897) (p.760) (confession while naked = involuntary)

  • Facts: D was charged with killing the master of his ship. He was stripped of his clothes while interrogation took place and confessed.

  • Held: The SC invoked the 5th Amend privilege and held because the confession was involuntary it should be suppressed.

2. The 6th Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

3. Moving away from the voluntariness test: Massiah & Escobedo

Background: Increasing dissatisfaction with the voluntariness test and growing distrust of state fact-finding processes led the SC to seek out alternatives to the voluntariness test. They found one in the 6th Amend right to counsel as indicated in Massiah (p.767)
When does your 6th Amend right to counsel attach?

  • Under Escobedo’s “focus and purpose test”, the 6th Amend RTC attaches where investigation has begun to focus on a particular suspect and is for the purpose of eliciting incriminating statements, even in a pre-indictment setting (Escobedo)

  • IN EXAM: You would want to argue if you are in a pre-FAJP setting, that D’s 6th Amend right to counsel had still attached under Escobedo’s “focus and purpose test” and therefore, by not having his counsel present during interrogation (even if he validly waived Miranda), D’s 6th Amend right was violated and therefore the confession should be excluded (but noting the ambiguity in footnote 4 of Miranda which appears to suggest that Miranda has displaced Escobedo)

Massiah (1964) (p.767) (6th Amend right to counsel prevents police from secretly eliciting incriminating statements from D in a post-indictment setting)

  • Facts: D was indicted on narcotics charges, retains lawyer and pleads not guilty. Whilst on bail, a federal agent installs a secret listening device in the car of one of D’s co-defendant’s (who was cooperating with the police). The agent then listed to incriminating statements made by D in the car.

  • Held: D was denied basic protections of the 6th Amend guarantee of right to counsel when evidence of his own incriminating words was used against him at trial which federal agents had secretly and deliberately elicited from him after he had been indicted and in the absence of counsel.

  • Note:

    • The approach of the Spano concurrence, that the conviction should be reversed on the sole ground that the defendant was denied right to counsel, becomes the holding in Massiah.

    • Also the SC did not question that the investigation of D’s suspected criminal activities could continue, rather just that the defendant’s own incriminating statements, obtained by the agents using surreptitious means, could not constitutionally be used by the prosecution as evidence against him at his trial.

    • Although the police cannot use D’s incriminating statements against D, they can still use them against others.

    • Massiah was not clear, for example, did it matter whether D had been indicted or obtained counsel? The SC returned to these matters a year later in Escobedo where the D had been arrested but not charged and had purported to invoke his right to counsel (p.772)

Escobedo (1964) (p.772) (Focus and purpose test: 6th Amend RTC attaches where investigation has begun to focus on a particular suspect and is for the purpose of eliciting incriminating statements, even in a pre-indictment setting)

  • Facts: D was arrested and taken to a police station for questioning (he had not yet been indicted). Over several hours, the police refused his repeated requests to see his lawyer. D’s lawyer sought unsuccessfully to consult with D. Police told D that his “lawyer didn’t want to see him”. D finally subsequently confessed to murder.

  • Held: 6th Amend right to counsel attaches where a police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect in police custody and the questioning is for the purposes of eliciting incriminating statements. Accordingly, as D had been denied access to his lawyer, his 6th Amend RTC had been violated.

  • Note: This decision is really important because it suggests that your 6th Amend RTC still attaches in a pre-indictment setting where you can satisfy the “focus and purpose test” (recall that Kirby held that 6th Amend RTC only attached after FAJP in a line-up context). However, the scope and application of Escobedo today remains uncertain, especially in light of Miranda’s footnote 4 which appears to suggest that Escobedo has been displaced by Miranda, but you would still argue it as defense counsel in the exam as an alternative right of redress.

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