Fifth Amendment:
A. Prosecutor Conduct
B. Brady
C. Confessions and Testimonial Rights
D. Double Jeopardy
E. Miscellaneous Fifth Amendment
Confessions and Testimonial Rights
Supreme Court Decisions
• Due Process - Right to Present DefenseHolmes v. South Carolina, 04-1327 (5/1/06)
> Defendant was charged with the rape and murder of an elderly woman and the state mustered significant forensic evidence against him. At trial, defendant intended to present evidence that another man had committed the crime and defendant offered to present substantial evidence to support the theory. The state court ruled that defendant was prohibited from presenting the defense based upon a state evidentiary rule barring evidence of third-party guilt where the prosecution presents strong forensic evidence of defendant’s guilt. Defendant appealed through the state court system, and the Supreme Court granted certiorari.
* Holding: Under the Due Process Clause, a defendant enjoys the right to a meaningful opportunity to present a complete defense. This right is abridged where evidence rules infringe upon a “weighty” right of a defendant and are “disproportionate to the purposes they are designed to serve.” In the case, the Court held that the state evidentiary rule violated defendant’s right to present his defense. The Court emphasized that the rule allowed consideration only of the strength of the prosecution’s case, but did not allow for analysis of a defendant’s challenges to the case in determining whether evidence of third party guilt would be admitted. Under these circumstances, the Court held that the state court rule was not rationally related to any legitimate purpose, and accordingly, the conviction was reversed.
• Miranda
Florida v. Powell, 08-1175 (2/23/10)
> Officers took defendant into custody and questioned him regarding a firearm found in his bedroom. Prior to questioning, the officers advised defendant of his Miranda rights. As part of the recitation, the officers stated that defendant had a right to “talk to a lawyer before answering any of the questions.” Further, the officers advised defendant that he could invoke his rights “at any time during the interview.” Defendant confessed to possessing the gun and was prosecuted. Defendant moved to suppress the firearm, and argued that the officers did not adequately advise him that he could consult with a lawyer and have a lawyer present during the interview. The state court denied the motion and defendant was convicted. The state appellate court reversed defendant’s conviction and ruled that defendant was not properly advised of his right to counsel. The state appealed to the Supreme Court.
* Holding: Pursuant to Miranda, officers must advise a defendant of (1) the right to remain silent, (2) that anything said can be used against the defendant, (3) the right to have an attorney present, and (4) the right to appointed counsel prior to questioning. The Court held that the officers did not “entirely omit” any of the Miranda requirements. Further, the Court found that the advisements that defendant (1) had a right to talk to a lawyer prior to questioning, and (2) that he could invoke his rights at any time during the questioning, sufficiently apprised defendant his right to have a lawyer present during questioning. Accordingly, defendant’s conviction was affirmed.
• Miranda - Reinitiation/Custody
Maryland v. Shatzer, 08-680 (2/24/10)
> Defendant was serving a sentence in state prison when he was approached by an officer who attempted to question him about the alleged sex abuse of defendant’s son. Defendant asserted his right to counsel. Two and a half years later, the state obtained new evidence against defendant in regard to the sex abuse allegations, and went to question defendant, who was still in state custody at a different prison. The officer read defendant his Miranda rights, which defendant waived, and defendant made incriminating statements. In his subsequent state court prosecution, defendant moved to suppress the statements. The trial court denied defendant’s motion and he was convicted. The state court of appeals reversed defendant’s conviction and found that the lapse of time did not vitiate defendant’s rights under Edwards. The Supreme Court granted certiorari.
* Holding: Under Edwards, police may not question a defendant who has invoked his or her right to counsel, unless the defendant reinitiates contact. In the present case, the Court found an exception to Edwards where there is a 14 day break in custody. Under this newly established rule, if there has been a 14 day break in custody since the time of the initial police contact, officers may reapproach a defendant and again seek a Miranda waiver.
Additionally, the Court held that “custody,” for Miranda purposes, did not include a defendant’s imprisonment for a sentence in an unrelated case. Thus, because defendant was returned to general population in the prison after he was questioned the first time, there was a sufficient break in “custody” prior to the second questioning. Accordingly, defendant’s conviction was affirmed.
Sixth Circuit Decisions
• Due Process - Right to Present a DefenseWashington v. Renico, 05-1185 (7/27/06)
> Defendant was charged in state court with murder and at trial utilized the defense that someone else committed the murder and put the body into the trunk of a car. Defendant attempted to offer extrinsic evidence that a government witness made an out-of-court statement that two people would end up in the trunk of a car if they told about an unrelated criminal matter. The state court excluded the evidence, defendant lost all of his state court appeals, and filed a federal habeas petition. The district court denied the petition, and defendant appealed.
* Holding: Distinguishing the Supreme Court’s decision in Chambers v. Mississippi, the court found that defendant’s due process rights had not been violated. First, the court held that the out-of-court statement was hearsay and that defendant had not argued any hearsay exception that would permit its admission. Second, the court ruled that the statement had only marginal relevance. Third, the court noted that defendant had not attempted to use the statement at trial for impeachment. The court emphasized that defendant could have simply asked the witness whether he had ever threatened to put someone in a trunk, and if the witness denied making the statement, offered extrinsic evidence of the statement for impeachment, as opposed to substantive, purposes. Accordingly, exclusion of the evidence was proper and the conviction was affirmed.
• Privilege Against Self Incrimination
Davis v. Straub, 03-2262 (12/1/05)
> Defendant was charged with murder in the state of Michigan. At trial, defendant attempted to introduce the testimony of a witness who was present at the scene of the murder. The witness had made multiple statements to police that defendant was not involved in the murder, but that the codefendant did it alone. Prior to the witness testifying, the prosecutor requested that the witness be given counsel, and advised of his Fifth Amendment rights. The court obtained counsel for the witness, and he subsequently decided to invoke his Fifth Amendment privilege. The court permitted the witness to assert a blanket Fifth Amendment privilege against all questions, and he did not testify. Defendant was convicted of murder, appealed through the Michigan court system, and then filed a federal habeas petition which the district court denied. The Sixth Circuit originally ruled that the district court erred in denying the petition because the trial court should have required the witness to take the stand and assert the Fifth Amendment on a question-by-question basis. (See P.V., Issue 4). The panel subsequently reconsidered its opinion.
* Holding: In an amended opinion, the court vacated its previous decision and upheld dismissal of the habeas petition. First, the court held that no clearly established Supreme Court precedent required a trial court to make a witness take the stand to invoke the Fifth Amendment privilege on a question-by-question basis. Thus, the trial court did not err in allowing the witness to invoke a blanket privilege.
In the court’s original opinion, it had alternatively held that defendant’s trial counsel was ineffective for failing to introduce the witness’ prior statements into evidence under the hearsay exception for statements against penal interest. In the amended opinion, the court reversed that conclusion and held that, because the Michigan state courts had held that the prior statements were not admissible under the hearsay exception as a matter of state law, the federal court could not find trial counsel ineffective for failing to introduce the statements. Accordingly, the prior opinion was vacated and the defendant’s conviction was affirmed.
• Privilege Against Self-Incrimination
U.S. v. Highgate, 06-1447 (4/7/08)
> Defendant was charged with drug and firearm offenses and at trial he desired to present the testimony of a codefendant. The district court permitted the codefendant, who had already been sentenced for his involvement, to assert a blanket Fifth Amendment right. Upon defendant’s conviction, he appealed.
* Holding: A witness’ right against self-incrimination under the Fifth Amendment must be weighed against a defendant’s right to compulsory process under the Sixth Amendment. In striking this balance, the court generally requires a witness to assert the right against self-incrimination on a question-by-question basis, and will not permit a witness to merely assert a blanket Fifth Amendment right. In the case, the court held that the district court erred by allowing the witness to assert a blanket Fifth Amendment right, and by failing to inquire into how the witness could actually implicate himself after he had already been sentenced. Nonetheless, the court found that the error was harmless because the witness would only have contradicted a fact to which six separate officers testified, and the witness’ testimony would not have related to any element of an offense with which defendant was charged. Thus, defendant’s conviction was affirmed.
• Right to Testify
U.S. v. Chambers, 02-5865 (3/23/06)
> Defendant was charged with child pornography and child sex abuse. At trial, defendant decided to make his own opening statement, but later expressed to his counsel that he did not wish to testify. Defendant’s counsel requested that the district court question defendant on the record about his desire not to testify. Defendant’s answers to the district court’s questions were slightly equivocal, but he appeared to be waiving his right to testify. Defendant was convicted and appealed.
* Holding: When a defendant does not testify at trial, the defendant is presumed to have waived his right to testify. In order to overcome this presumption, a defendant must affirmatively indicate on the record in the district court that she desires to testify. In the case, the court held that the district court was under no obligation to question defendant about his desire to testify, and that the statements made by defendant on the record did not overcome the presumption of waiver of the privilege. Therefore, the conviction was affirmed.
• Right to Testify
U.S. v. Stover, 05-3562 (1/30/07)
> Defendant was charged with drug trafficking and he did not testify at trial. Upon his conviction, defendant argued on appeal that his right to testify had been violated.
* Holding: The court held that a district court is not required, sua sponte, to address a silent defendant and inquire whether he knowingly and intelligently waived the right to testify, or to ensure that he has waived the right on the record. A defendant’s waiver of the right to testify may be presumed from his failure to testify or notify the district court of his intention to do so. Accordingly, defendant’s conviction was affirmed.
• Miranda - Reinitiation of Contact
Van Hook v. Anderson, 03-4207 (5/24/07)
> Defendant was arrested in Florida for a murder in Cincinnati. He invoked his Miranda right to counsel with the Florida detectives, who ceased questioning him. The Cincinnati detectives then arrived and, knowing that defendant had invoked his right to counsel, engaged him in a conversation saying that they had “talked to his mother” and that the officers believed that he may want to talk. Defendant confirmed his desire to talk and later made a full confession to the murder. Upon defendant’s prosecution in state court, he moved to suppress the confession under Miranda, but the state court denied the motion. Defendant lost his state court appeals and then filed a federal habeas petition. The district court denied the petition, but the original Sixth Circuit panel reversed, finding that the officers had violated Miranda by reinitiating contact with defendant after he asserted his right to counsel. The state moved for en banc review.
* Holding: Reversing the original panel’s decision, the en banc court held that an accused who has invoked his or her right to counsel may reinitiate contact with the police through a third party. Further, the court found that the state court record established that defendant had, in fact, reinitiated contact through his mother and that the Cincinnati detectives were thus justified in approaching defendant in order to determine whether he desired to talk. Accordingly, the district court’s ruling denying the habeas petition was affirmed.
• Miranda - Public Safety Exception
U.S. v. Williams, 05-5460 (1/9/07)
> Officers went to a boarding house to execute a warrant for defendant for aggravated rape and robbery. The officers were told that defendant lived in a room on the second floor. The officers knocked on the door and defendant answered. During the course of the ensuing interaction, the officers asked defendant if he had any guns in the house. Defendant responded that he had a gun under the mattress of the bed. Defendant was charged with being a felon in possession of a firearm and he moved to suppress his statement about the gun on the grounds that it was taken in violation of Miranda. The district court granted the motion and the government appealed.
* Holding: A statement taken by police after a defendant is in custody and without advising the defendant of her Miranda rights may nonetheless be admissible based upon the public safety exception. Such exception applies where the officers’ questions are necessary to secure the officers’ safety, as opposed to questions designed to elicit testimonial evidence. In order to satisfy the public safety exception, the government must prove that the officers had an objectively reasonable belief that (1) defendant might have, or recently has had, a weapon, and (2) that someone other than police might gain access to the weapon and inflict harm with it. In the case, the court found that the district court made inadequate factual findings about the contested series of events that transpired after defendant answered the door in order to assess the public safety exception. Accordingly, the district court ruling was vacated and the case remanded.
• Miranda
Garner v. Mitchell, 02-3552 (3/3/09)
> Police officers executed a search warrant at defendant’s residence based on an investigation for murder, arson, and burglary. Defendant was arrested and read his Miranda rights. Defendant acknowledged an understanding of his rights, and then fully confessed to the offenses. Upon being charged in state court, defendant moved to suppress the statements on the grounds that he had not knowingly and intelligently waived his Miranda rights. The state court denied the motion, defendant was convicted, and he lost his state court appeal. During post-conviction proceedings, defendant obtained a doctor’s report which indicated that defendant did not have the mental capacity to understand Miranda warnings. Defendant filed a federal habeas petition, the district court denied the petition, and defendant appealed. The original panel determined that defendant had not knowingly and intelligently waived his Miranda rights. The court granted en banc review.
* Holding: The en banc court held that defendant knowingly and intelligently waived his Miranda rights at the time of his confession. The court determined that defendant expressed an understanding of his rights to the officers, explained his conduct, and even told the officers how he burned a couch to destroy his fingerprints, and how he made up a story about having a fight with his girlfriend to explain his presence at the apartment. Although acknowledging that defendant suffered from mental limitations, the court found that the doctor’s report – obtained seven years after the confession – did not alter the court’s opinion that defendant knowingly and intelligently waived his rights at the time of the questioning. Accordingly, defendant’s conviction was affirmed.
• Miranda - Implied Waiver of Rights
U.S. v. Nichols, 06-5862 (1/25/08)
> Defendant was arrested based on an open felony warrant and a gun was found in his car. Defendant was advised of his Miranda rights and expressed an understanding of them, but did not expressly waive them. In response to officer questioning, he initially lied about his identity, but then told the truth and made inculpatory statements. Upon his prosecution for being a felon in possession of a firearm, defendant moved to suppress his statements. The district court denied the motion and defendant appealed.
* Holding: Absent an express waiver of Miranda rights, a court must presume that a defendant has not waived the right to remain silent. A waiver may be inferred, however, where a defendant is properly informed of the rights, indicates an understanding of them, and “does nothing to invoke those rights.” In the case, the court held that defendant’s lies to the officers about his identity did not invoke his rights. Instead, his statements showed his affirmative desire to communicate with the officers to further his own self-interest. Additionally, the court found that the officers did not engage in any coercive conduct in getting defendant to talk. Finally, the court found unpersuasive the fact that the officer checked the “no waiver” box on the Miranda form. The court reasoned that this merely indicated that defendant did not expressly waive his rights. Accordingly, the denial of the motion to suppress was affirmed.
• Miranda - Booking Questions
U.S. v. Pacheco-Lopez, 07-5408 (6/26/08)
> Officers executed a search warrant at a residence suspected of receiving shipments of cocaine. Defendant was present at the time of the warrant’s execution, and the officers, through an interpreter, asked defendant where he was from, how he arrived at the house, and when he arrived. Defendant answered that he drove from Mexico in a white pick-up, and he offered the keys. Defendant was then Mirandized in Spanish, and he stated that he transported cocaine. In the white pick-up, the officers found a hollowed out section for the cocaine. Upon his prosecution, defendant moved to suppress his statements based upon Miranda. The district court denied the motion and defendant appealed.
* Holding: First, the court held that the officers’ questions about defendant’s arrival at the house were not routine booking questions. The questions were not “reasonably related to the police’s administrative concerns,” but instead were more like interrogation. Further, the court was influenced by the fact that the questioning occurred on the scene, as opposed to at the police station, and none of the officers took notes or documented defendant’s information. Thus, the court held that the pre-Miranda statements should have been suppressed.
Second, the court held that the later administration of Miranda warnings did not render the statements admissible. Five factors are relevant to whether a midstream Miranda warning is effective: (1) the completeness and detail of the first round of questioning; (2) overlapping content before and after the warning; (3) timing and setting; (4) continuity of police personnel; and (5) the degree the second round of questioning is treated as continuous with the first. The court found that all five factors weighed in favor of suppression because the same officers had engaged in continuous questioning of defendant with no break, and the answers from the pre-Miranda questions were used in asking the post-Miranda questions. The court’s conclusion was not altered by the fact that defendant invoked his right to silence after admitting to driving the cocaine. Accordingly, the district court’s ruling was reversed.
• Miranda
Coomer v. Yukins, 06-1235 (7/22/08)
> Defendant was being investigated for murder. Defendant voluntarily let officers into her home, and made an oral confession to participating with her boyfriend in the murder. After making the oral confession, officers had defendant commit the confession to writing. Defendant then agreed to go to the police station with the officers, she was Mirandized, and she provided another complete oral confession. Defendant was prosecuted for murder and kidnaping, and moved to suppress both of her oral, and written statements. The trial court denied her motion with respect to the oral statements, but granted her motion regarding the written statement. The trial court reasoned that a reasonable person would have understood that she was in custody for murder at the time of the written statement, but that she was not Mirandized. Defendant was convicted at trial and lost her state court appeal. Defendant filed a federal habeas petition, the district court denied her petition, and defendant appealed.
* Holding: In determining whether a reasonable person would feel that they were in custody during police questioning, the court considers four factors: (1) the purpose of the questioning; (2) whether the place of questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody such as whether the suspect was advised that the questioning was voluntary and whether she was free to leave, whether the suspect enjoyed freedom of movement during questioning, and whether the suspect initiated contact or voluntarily admitted officers and acquiesced to requests to answer questions. In the case, the court found that the totality of the circumstances supported the conclusion that defendant was not in custody considering that she was at her own home, a friend was present, she had freedom of movement, she voluntarily admitted the officers, and the questioning was relatively short. Thus, the first oral statement was properly admitted.
Regarding the oral statement at the police station, the court held that the taint from the improper written confession was sufficiently removed in order to permit its admission. In assessing whether the subsequent use of Miranda warnings can remove the taint from a prior unlawful confession, the Court considers the following factors: (1) the time between the confessions; (2) change in the place of interrogations; (3) change in identity of interrogators; (4) completeness and detail in the first round of interrogation; (5) overlapping content in the two statements; and (6) the degree to which the interrogator treats the second round as continuous with the first. The court held that the state court’s determination was not an unreasonable application of the federal law. Several hours passed between the first and second interrogation, the location changed, and defendant was given Miranda warnings in between. Accordingly, the state court’s ruling was affirmed.
• Miranda - Invoking Rights
Franklin v. Bradshaw, 07-3497 (10/21/08)
> After a shooting incident, defendant was questioned by police. The officers advised defendant of his Miranda rights, and then asked him whether he wished to tell his side of the story. Defendant said “no” and put his head down. The officers continued to question defendant and he gave a statement denying the shooting. Defendant was charged in state court with murder and moved to suppress his statement. The court denied the motion and, at trial, the state introduced defendant’s statement to show its inconsistencies with other evidence. Defendant was convicted, lost his state court appeals, and filed a federal habeas petition. The district court denied the petition and defendant appealed.
* Holding: In order to invoke Miranda rights, a suspect must unambiguously indicate a desire to remain silent. If the suspect’s invocation of rights is equivocal, the questioning by police need not stop. In the case, the court held that defendant’s response of “no,” coupled with putting his head down, was not an unambiguous invocation of his rights. Thus, defendant’s Miranda rights were not violated. Further, the court held that any violation was harmless because of the otherwise strong evidence against defendant. Accordingly, the court found that the state court did not unreasonably apply federal law and defendant’s conviction was affirmed.
• Miranda - Inevitable Discovery
U.S. v. Alexander, 07-3219 (8/18/08)
> Officers obtained an anticipatory warrant to search a home after the controlled delivery of a package containing cocaine. Defendant’s wife accepted delivery of the package, and upon execution of the search warrant, defendant was arrested. Officers could not locate the cocaine from the package, and questioned defendant about the location of the cocaine without first reading his Miranda rights. Defendant claimed that the officers also beat him up trying to locate the cocaine. Defendant eventually led the officers to the cocaine in the basement. Defendant was charged in a cocaine conspiracy. He moved to suppress the cocaine based upon Miranda, and argued that the inevitable discovery rule should not apply due to the officers’ beating of him. The district court denied the motion and defendant appealed.
* Holding: Where a defendant’s Miranda rights have been violated, the government may nonetheless use subsequently discovered evidence where it can demonstrate either the “existence of an independent, untainted investigation that inevitably would have uncovered the same evidence,” or other compelling facts showing that the evidence would have been discovered. In the case, it held that the officers’ alleged actions were of no consequence to the determination of whether the inevitable discovery doctrine applied, and thus, the court concluded that the officers would have discovered the hidden cocaine even without defendant’s un-Mirandized statements. Therefore, the district court’s ruling was affirmed.
• Miranda/Voluntariness
Davis v. Mitchell, 03-4293 (11/12/08)
> Defendant was arrested as a suspect in multiple murders and, during the course of several hours, officers questioned him on mutiple occasions. Each time the officers Mirandized defendant, and each time defendant refused to discuss the case, but he never requested counsel. Finally, defendant requested to see the detective, and asked the detective questions about a news report and some information provided by an informant. The ensuing conversation led to defendant’s confession. Defendant was prosecuted for murder and moved to suppress his confession. The state court denied defendant’s motion, he was convicted, and lost his state court appeal. Defendant filed a federal habeas petition and the district court denied the petition. Defendant appealed.
* Holding: Where a defendant asserts the right to remain silent, officers must “scrupulously honor” the request, unless the defendant initiates contact. An initiation occurs where, “without influence by the authorities, the suspect shows a willingness and desire to talk generally” about the circumstances. In the case, the court held that defendant initiated contact with the officers by requesting to speak with a detective before making his confession. Further, the court noted that defendant was read his Miranda rights before each series of questioning, and that the periods of questioning were sufficiently far apart in time that defendant’s confession was not rendered involuntary. Accordingly, defendant’s conviction was affirmed.
• Miranda - Waiver
Thompkins v. Berghuis, 06-2435 (11/19/08)
> Defendant was arrested as a suspect in a murder. Officers provided defendant a written version of his Miranda rights which he refused to sign. The officers then engaged in two hours and forty five minutes of questioning, during which defendant was almost entirely non-communicative. He made eye contact only a few times and generally was unresponsive to the officers’ lengthy monologue. Finally, the officers appealed to defendant’s religious beliefs, and defendant admitted that he prayed for forgiveness for the murder. Upon defendant’s murder prosecution, he moved to suppress the confession. The state court denied the motion, defendant was convicted, and he lost his state court appeal. Defendant filed a federal habeas petition, and the district court denied the petition. Defendant appealed.
* Holding: Relying on the Supreme Court’s decision in Miranda, the court held that trial courts must presume that a defendant did not waive her Miranda rights, and that the government bears a heavy burden in proving waiver. Further, a valid waiver may not be assumed simply from the silence of the accused or from the fact that a confession is eventually obtained. In the case, the court held that defendant’s two hours and forty five minutes of silence before his confession could not be construed as an implied waiver of his Miranda rights. Thus, the court found that the state court unreasonably applied federal law in finding a Miranda waiver. Accordingly, the district court’s ruling was reversed and defendant’s conviction was vacated.
• Miranda - Custody
U.S. v. Panak, 07-4476 (1/9/09)
> During the course of an investigation for a hydrocodone distribution conspiracy, defendant was interviewed at her home for 45-60 minutes by DEA agents. Defendant confessed to her involvement in the conspiracy. Upon her prosecution, defendant moved to suppress her confession based upon Miranda. The district court granted the motion and the government appealed.
* Holding: Miranda only requires law enforcement officers to provide warnings to a defendant who is in custody. In order to assess whether a defendant is in custody, the court must consider whether a reasonable person would have felt that her freedom of action was restrained considering the following four factors: (1) the location of the interview; (2) the length and manner of the questioning; (3) whether the defendant possessed unrestrained freedom of movement; and (4) whether the defendant was told she was free not to answer questions. In the case, the court held that defendant was not in custody during the interview, and thus, Miranda warnings were not required. Although the defendant was not advised that she did not have to answer questions, the other factors weighed heavily against a finding that she was in custody. Specifically, the interview occurred in her home, was not overly long, and the agents acted appropriately throughout. Accordingly, the district court’s ruling was reversed.
• Miranda
U.S. v. Evans, 07-2565 (9/22/09)
> After a minor altercation at the Social Security office, two Federal Protective Service (FPS) officers followed defendant in her car for a brief period. Defendant then got behind and tailgated the officers while making gestures suggesting that she had a gun. As a result, the FPS officers executed a traffic stop, and called for local police backup. It was subsequently determined that defendant had an open warrant, so the FPS officers arrested her. During defendant’s transport, the officers learned that a person with defendant’s name had a civil restraining order against her. The officers asked her if she was the person who was named in the restraining order and, defendant responded “Yeah, that’s me. That’s the same bitch-ass mother f–ker who – who tried to lock me up the last time, and I was going – I was going to kill his ass just like I’m going to do to you and your mama.” Defendant was prosecuted for threatening to assault a federal law enforcement officer and she moved to suppress her statement based on Miranda. The district court denied the motion, defendant was convicted, and she appealed.
* Holding: Miranda protects defendants against custodial interrogation. The court ruled that “interrogation” refers “not only to express questioning, but also to any words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” The court found that the officers’ question to defendant concerned a purely civil matter regarding the restraining order and that defendant’s response was neither expected nor compelled by the question. Thus, defendant’s response was “spontaneously volunteered” and was a separate and distinct crime. The court ruled that “no individual has a constitutional right to be warned of his rights before he commits a crime.” Accordingly, the district court’s ruling was affirmed.
• Miranda
U.S. v. Adams, 08-5372 (10/14/09)
> Defendant was at a party where a gun was discovered by police in a jacket. Officers read defendant his Miranda rights, which he acknowledged understanding, but he never affirmatively waived his rights. Defendant continued to speak with and answer questions of the officers for a lengthy period of time, eventually confessing to owning the gun. In filling out the police questionnaire, the officers checked a box which indicated that defendant read and understood his rights, but did not check the box indicating that defendant waived his rights. The officers explained that they understood that the waiver box was only to be checked when a defendant expressly waived his rights. The officers stated that defendant never asked for an attorney or to stop the questioning. The district court refused to suppress defendant’s confession, he was convicted, and he appealed.
* Holding: The government bears the burden of proving a Miranda waiver by a preponderance of the evidence. The waiver may be inferred, however, where a defendant is properly advised of his rights but does nothing to invoke his rights, and instead speaks. The court found that defendant waived his Miranda rights by talking to the officers after properly being advised of his rights. Accordingly, the district court’s ruling was affirmed.
• Miranda
Tolliver v. Sheets, 08-3177 (2/22/10)
> Police were investigating defendant for the murder of his girlfriend. The officers attempted to read defendant his Miranda rights, but defendant kept interrupting and trying to explain to the officers that the death was a suicide. As a result, the officers never read defendant his rights, and many of defendant’s tape-recorded statements were admitted against him at trial. The officers asked a few follow up questions to defendant’s volunteered statements, and at one point near the end of the conversation, defendant asked to stop the interview until he could talk to an attorney. Officers continued the discussion and defendant made additional statements that were used against him at trial. In his murder prosecution, defendant moved to suppress his taped statement and the state court denied the motion. Defendant was convicted and lost his state court appeal. Defendant filed a federal habeas petition which was denied by the district court. Defendant appealed.
* Holding: The court first found that the officers never properly administered Miranda warnings. Nonetheless, the court ruled that most of defendant’s statements were volunteered, and thus not in response to police interrogation. Therefore, all of the volunteered statements were properly admissible. The court found that the officers did ask defendant at one point about the wound on the victim’s body, and that this question was not reasonably in response to any volunteered statement by defendant. Thus, defendant’s response should have been suppressed. Further, the court ruled that defendant asserted his right to counsel near the end of the interview, and that all of his statements thereafter were improperly obtained. The court held, however, that the error in admitting the statements was harmless because the inadmissible portion of defendant’s statement was a very small part of the trial, and significant other evidence pointed to his guilt. Accordingly, the district court’s ruling was affirmed.
• Voluntariness of Confession
McCalvin v. Yukins, 05-1111(4/5/06)
> Defendant was arrested for running over a woman at her ex-boyfriend’s home. After 4 hours of questioning and being held for 8 hours, defendant made a statement implicating herself. Defendant challenged the voluntariness of her confession in the state courts, and then filed a federal habeas petition. The district court found the confession involuntary and the state appealed.
* Holding: In deciding whether a statement is involuntary, a court must consider the totality of the circumstances including age, education, and intelligence of the defendant, whether Miranda rights were read, the length of questioning, the repeated and prolonged nature of the questioning, and the use of physical punishment, such as deprivation of food or sleep. Considering all of the factors, the court determined that defendant’s confession was voluntary and reversed the district court.
• Voluntariness of Confession
U.S. v. Craft, 04-4129 (7/20/07)
> Defendant confessed to drug trafficking based upon what he believed to be an implicit promise from a joint state/federal drug task force agent that he would not be charged with a drug offense. Six months later, defendant again met with the same agent and federal agents. After being read his Miranda warnings, defendant again confessed. Upon defendant’s subsequent federal drug trafficking prosecution, he moved to suppress the statements. The district court found that the agent’s implicit promise not to charge defendant was not made until the conclusion of the first interview with defendant, and that accordingly, defendant’s confession was not coerced. The district court thus denied the motion and defendant appealed.
* Holding: An implicit promise not to prosecute by a joint task force agent may serve as the basis to find a statement involuntary in an appropriate case. In the case, however, the court credited the district court’s finding that the agent did not make the implicit promise until after defendant had already confessed at the first meeting. Thus, the court held that the promise was not coercive because defendant could not have possibly relied on it in tendering his confession. Further, the court held that the passage of six months and the reading of Miranda warnings prior to the second confession cured any potential coercive effect of the implicit promise. Thus, the district court ruling was affirmed.
• Voluntariness
U.S. v. Rutherford, 07-2312 (2/4/09)
> Defendant was being investigated by the civil division of IRS. During the course of its investigation, the IRS agents negligently failed to turn the case over to the criminal division when the agents found a “firm indication” of fraud. Instead, the agents interviewed defendant under the continuing civil investigation, and defendant made incriminating statements. Upon defendant’s tax prosecution, he moved to suppress the statements. The district court granted the motion, and suppressed the statements based on a violation of defendant’s due process rights. The government appealed.
* Holding: Answering an open question in the Sixth Circuit, the court held that the mere failure to follow the IRS procedure regarding referral of a civil case to the criminal division did not amount to a due process violation. Instead, the court held that a defendant is required to show that the confession was involuntary. The court ruled that this requires an evaluation of the totality of the circumstances considering three factors: (1) whether the police activity was objectively coercive; (2) whether the coercion was sufficient to overbear the defendant’s will; and (3) whether the misconduct was the “crucial motivating factor” in the defendant’s confession. In the case, although the agents violated the IRS policy, there was no evidence of coercion or that defendant’s will was overborne. Accordingly, the district court ruling was reversed.
• Privilege Against Compelled Testimony
U.S. v. Childs, 07-1495 (8/29/08)
> Defendant was charged with conspiracy to commit murder for hire and, a few weeks prior to his trial, the government granted him use and derivative use immunity, pursuant to 18 USC § 6002. As a result, defendant was compelled to testify at the trial of his coconspirator-accomplice. Defendant was subsequently tried and convicted. Defendant appealed.
* Holding: Pursuant to § 6002, the government may grant use and derivative use immunity to a defendant to compel his testimony, even though he is under indictment. The court held that, if the defendant is subsequently brought to trial, the defendant need only “show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all evidence it proposes to use was derived from legitimate independent sources.” In the case, the court found that defendant made no such claim at his trial, and that the government made no use or derivative use of his prior testimony. Accordingly, defendant’s Fifth Amendment rights were not violated.
• Right to Remain Silent
U.S. v. Childs, 07-1495 (8/29/08)
> Defendant was charged with conspiracy to commit murder for hire and testified at trial. During his testimony, defendant explained that his fingerprints may have been on the victim’s window sill because he was there a day or two before the murder spying on the victim to see if she was cheating with a codefendant’s husband. The prosecutor asked defendant on cross examination why he originally told investigators that he spied on the victim a month before the murder, and why he did not correct this original story to investigators. Defendant objected to the prosecutor’s question and claimed that it infringed on his right to remain silent. The district court overruled the objection, defendant was convicted, and he appealed.
* Holding: The court held that, where a defendant elects to make post-arrest statements, the prosecutor may cross examine the defendant about subsequent statements that are inconsistent with the post-arrest statements. The court ruled that this questioning does not draw a negative inference from defendant’s decision to remain silent, but instead from defendant’s prior inconsistent statement. Accordingly, the district court’s ruling was affirmed.
• Privilege Against Self Incrimination
U.S. v. Bates, 06-2458 (1/12/09)
> Defendant was charged with conspiracy to commit several bank robberies. One of defendant’s accomplices testified against him at trial. Defendant attempted to present the testimony of a witness who was indicted for separate bank robberies with the accomplice. The witness refused to testify based on his Fifth Amendment right, and the district court did not require the witness to take the stand in order to assert his right on a question-by-question basis. Defendant was convicted and he appealed.
* Holding: Ordinarily, a witness must take the stand and answer individualized questions in order to invoke the Fifth Amendment. When a witness has a “clear entitlement” to the privilege, however, the witness is not required to take the stand. In the case, the court held that putting the witness on the stand was futile because it was clear that defendant intended to question him about the facts underlying the bank robberies with which he was charged. Thus, the district court’s refusal to require the witness to take the stand was not error.