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Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices 471

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confessions, and admissions to prove guilt is controversial. The United States Supreme Court has recognized that admissions are highly suspect when relied upon alone to obtain a confession. The Court stated, in Escobedo v. Illinois (1964),4 that a “system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently” obtained through other law enforcement practices.

At common law, confessions and admissions could be used freely, as long as they were made voluntarily. The early basis for excluding involuntary confessions was the Due Process Clauses of the Fifth and Fourteenth Amendments.5 Eventually, federal defendants could seek to have confessions suppressed if they were not taken before a mag- istrate promptly after arrest. This was known as the McNabb-Mallory rule, named for two Supreme Court cases.6 The rule was not constitutionally based. Instead, the Court announced the rule in its supervisory role over the nation’s federal courts. While the rule of quick presentment of arrestees to judges had existed at common law and had been codified by Congress, there was no remedy for violations. Accordingly, the Court held that confessions that occurred after unreasonable delays should be excluded. Congress re- acted to McNabb-Mallory and Miranda by enacting a statute that permits the admission of a confession so long as it was voluntarily given. Another section provides that regardless of any delay in presenting a suspect to a judge, a confession shall be admitted if obtained within 6 hours of arrest. In Corley v. United States, 556 U.S.—(2009) it was held that if there is a delay in presenting a suspect to a judge longer than 6 hours, the old McNabb- Mallory exclusionary rule applies if a delay is found to be unreasonable.

Today, interrogations, confessions, and admissions are governed by these rules, as well as two broader rights: the Fifth Amendment right to be free from self-incrimina- tion and the Sixth Amendment right to counsel.

Miranda By virtue of popular television and films, the Supreme Court case Miranda v. Arizona, or at least the “Miranda” warnings that are a product of that case, is one of the best known judicial decisions of our time.

[The Supreme Court consolidated appeals from several individuals who had been convicted at trials where their confessions were entered into evidence. Ernesto Miranda, for whom the case is named, was arrested for rape and kidnapping. He was

interrogated at a police station. He was not advised of his constitutional rights, he never requested to see an attorney, and he never refused to discuss the allegations with the officers. He only had contact with the police during the interrogation. After two

MIRANDA V. ARIZONA 384 U.S. 436 (1966)

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hours he signed a written confession to the rape. He also attested to the voluntariness of his confession in the document. He was convicted, appealed, and lost in Arizona’s appellate courts. Chief Justice Earl Warren delivered the Court’s opinion.]

The cases before us raise questions that go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecut- ing individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police in- terrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself. . . .

Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use state- ments, whether exculpatory or inculpatory, stem- ming from custodial interrogation of the defendant unless it demonstrates the use of procedural safe- guards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law-enforcement of- ficers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, know- ingly, and intelligently. If, however, he indicates in

any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the indi- vidual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereaf- ter consents to be questioned.

The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way. In each, the defen- dant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interro- gation process. In all of the cases, the question- ing elicited oral admissions, and in three of them, signed statements as well, which were admitted at their trials. They all thus share salient features— incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self- incriminating statements without full warnings of constitutional rights.

An understanding of the nature and setting of this in-custody interrogation is essential to our de- cisions today. The difficulty in depicting what tran- spires at such interrogations stems from the fact that in this country they have largely taken place incommunicado. From extensive factual studies undertaken in the early 1930s . . . it is clear that po- lice violence and the “third degree” flourished at that time. In a series of cases decided by the Court long after those studies, the police resulted to phys- ical brutality—beating, hanging, whipping—and to

MIRANDA V. ARIZONA (c o nt i nu e d)

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Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices 473

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sustained and protracted questioning incommuni- cado in order to extort confessions. . . .

Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. As we have stated before, “. . . this court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitu- tional inquisition.”. . .

The circumstances surrounding in-custody in- terrogation can operate very quickly to overbear the will of one merely made aware of his privilege [against self-incrimination] by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interro- gation process. A once-stated warning, delivered by those who will conduct the interrogation, can- not itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more “will benefit only the recidivist and the professional.” Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. . . .

Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any ques- tioning if the defendant so desires.

The presence of counsel at the interrogation may serve several significant subsidiary functions as well. If the accused decides to talk to his inter- rogators, the assistance of counsel can mitigate the dangers of trustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported to the prosecution.

[Miranda’s case was remanded, he was retried, his confession was excluded, and he was again con- victed. Although sentenced to twenty to thirty years in prison, he was paroled in 1972. Subsequently, he found himself in trouble on several occasions, one leading to revocation of his parole. He spent an- other year in prison, was released, and was stabbed to death in bar room fight in 1976. Several Miranda Warning Cards, which he had been autographing and selling, were found on his person at the time of his death. The man alleged to have killed Miranda was arrested, read his Miranda rights, invoked his right to remain silent, was released, and fled. The Miranda murder was never prosecuted.]

MIRANDA V. ARIZONA (c o nt i nu e d)

Although Miranda concerns the rights of suspects to counsel in certain circum- stances, it is not a Sixth Amendment right to counsel case. The right of a suspect to counsel at this early stage in the process rests upon the Fifth Amendment’s right to be free from self-incrimination. Simply stated, the Court found that to meaningfully implement the right to be free from self-incrimination, suspects must be informed of both their right to remain silent and to the assistance of legal counsel before they are questioned.

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The Warnings The heart of the Miranda decision is the warnings. These are

1. The right to remain silent. 2. Any statements made may be used against the defendant to gain a conviction. 3. The right to consult with a lawyer and to have a lawyer present during

questioning. 4. For the indigent, a lawyer will be provided without cost.

The warnings are to be read to all persons in custody who are to be interrogated. The law does not presume that any person, including an attorney, knows these rights. The warnings should be presented in a timely manner and read at such a speed that the arrestee can gain a full understanding of their import.

Specific language need not be used, as long as the defendant is fully and effectively apprised of each right. For example, the Court approved the following language against the defendant’s claim that it conveyed the idea that he had a right to speak to his attorney before questioning but not during questioning.

“You have the right to talk to a lawyer before answering any of our questions” and “[y] ou have the right to use any of these rights at any time you want during this interview.”

The words, the Court found, “were not the clearest possible formulation of Miranda’s right-to-counsel advisement, they were sufficiently comprehensive and comprehensible when given a commonsense reading.”7

Many law enforcement agencies have made it a policy to record (video/audio or audio only) the giving of the warnings and any waiver of rights to eliminate any ques- tion concerning whether the warnings were given and whether coercion was used to gain a waiver.

Custodial Interrogation Not all questioning by law enforcement officers must be preceded by the Miranda warnings. A defendant must be “in custody” and “interrogated” by police before Miranda has effect. This is known as the “custodial interrogation” requirement.

The Court used the phrase “taken into custody or otherwise deprived of his freedom of action in any significant way” to define the custody element of Miranda. An objective test is used to determine if a suspect is in custody, the suspect’s and interrogating offi- cer’s subjective beliefs about the status of the suspect are not dispositive.8 This includes the officer’s opinions about whether the suspect committed the crime and whether the individual is in custody. The test to determine if a person is in custody for Miranda is objective—whether a reasonable person would have felt free to leave. Although a state- ment by a police officer to a suspect that he is not under arrest is not dispositive, it may be considered. Of course, a person is in custody if an officer announces that an arrest is being made or that the person is not free to leave. The Court made it clear that the in-custody element may be satisfied anywhere. The defendant need not be at the police station to be in custody.

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Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices 475

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Justice Alito delivered the opinion of the Court. ■ ■ ■

While serving a sentence in a Michigan jail, Randall Fields was escorted by a corrections officer to a conference room where two sheriff’s deputies ques- tioned him about allegations that, before he came to prison, he had engaged in sexual conduct with a 12-year-old boy. In order to get to the conference room, Fields had to go down one floor and pass through a locked door that separated two sections of the facility. Fields arrived at the conference room between 7 p.m. and 9 p.m. and was questioned for between five and seven hours.

At the beginning of the interview, Fields was told that he was free to leave and return to his cell. Later, he was again told that he could leave whenever he wanted. The two interviewing depu- ties were armed during the interview, but Fields re- mained free of handcuffs and other restraints. The door to the conference room was sometimes open and sometimes shut.

About halfway through the interview, after Fields had been confronted with the allegations of abuse, he became agitated and began to yell. Fields testified that one of the deputies, using an exple- tive, told him to sit down and said that “if [he] didn’t want to cooperate, [he] could leave.” Fields eventu- ally confessed to engaging in sex acts with the boy. According to Fields’ testimony at a suppression hearing, he said several times during the interview that he no longer wanted to talk to the deputies, but he did not ask to go back to his cell prior to the end of the interview.

When he was eventually ready to leave, he had to wait an additional 20 minutes or so because a cor- rections officer had to be summoned to escort him back to his cell, and he did not return to his cell until well after the hour when he generally retired. At no time was Fields given Miranda warnings or advised that he did not have to speak with the deputies.

The State of Michigan charged Fields with criminal sexual conduct. Relying on Miranda, Fields

HOWes V. FIelDs 565 U.S. ___ (2012)

Typically a brief encounter between a citizen and a police officer is not a custo- dial situation. All of the surrounding facts must be considered in making the custody determination. The location of the interrogation is very important. There is a greater chance of finding a person in custody if the questioning took place in a police station or prosecutor’s office rather than the suspect’s home or in public. The presence of other persons during the interrogation decreases the odds of the suspect being in custody. The Court found the fact that the suspects in Miranda were “cut off from the outside world” troubling. The length and intensity of the questioning are also relevant.

The Supreme Court found age to be a factor in a case where police interrogated a 13-year-old boy enrolled in special education classes outside the presence of his guardians and without Mirandizing him. The Court concluded that the child’s age and maturity impacted his perception of whether he was free to leave, as well as his ability to develop sound judgement.9

Determining whether a prisoner is in custody for purposes of Miranda is some- what confounding. This was the issue in the Howes case.

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476 Part II Criminal Procedure

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moved to suppress his confession, but the trial court denied his motion. [He was convicted and sentenced to 10 to 15 years in prison.]

As used in our Miranda case law, “custody” is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of “the objective circumstances of the interrogation,” a “reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave. And in order to deter- mine how a suspect would have “gauge[d]” his “freedom of movement,” courts must examine “all of the circumstances surrounding the interroga- tion.” Relevant factors include the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning. . . .

Determining whether an individual’s freedom of movement was curtailed, however, is simply the first step in the analysis, not the last. Not all restraints on freedom of movement amount to custody for purposes of Miranda. We have “decline[d] to accord talismanic power” to the freedom-of-movement in- quiry, and have instead asked the additional ques- tion whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda. “Our cases make clear . . . that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody.”

There are at least three strong grounds for [the conclusion that prisoners will not feel in custody]. First, questioning a person who is already serving a prison term does not generally involve the shock that very often accompanies arrest. In the paradig- matic Miranda situation—a person is arrested in his home or on the street and whisked to a police

station for questioning—detention represents a sharp and ominous change, and the shock may give rise to coercive pressures. A person who is “cut off from his normal life and companions,” and abruptly transported from the street into a “police- dominated atmosphere,” may feel coerced into an- swering questions.

By contrast, when a person who is already serv- ing a term of imprisonment is questioned, there is usually no such change. “Interrogated suspects who have previously been convicted of crime live in prison.” For a person serving a term of incarcera- tion, we reasoned in Shatzer, the ordinary restric- tions of prison life, while no doubt unpleasant, are expected and familiar and thus do not involve the same “inherently compelling pressures” that are often present when a suspect is yanked from famil- iar surroundings in the outside world and subjected to interrogation in a police station.

Second, a prisoner, unlike a person who has not been sentenced to a term of incarceration, is unlikely to be lured into speaking by a longing for prompt release. When a person is arrested and taken to a station house for interrogation, the person who is questioned may be pressured to speak by the hope that, after doing so, he will be allowed to leave and go home. On the other hand, when a prisoner is questioned, he knows that when the questioning ceases, he will remain under confinement.

Third, a prisoner, unlike a person who has not been convicted and sentenced, knows that the law enforcement officers who question him probably lack the authority to affect the duration of his sentence. . . .

In short, standard conditions of confinement and associated restrictions on freedom will not necessarily implicate the same interests that the Court sought to protect when it afforded special safeguards to persons subjected to custodial inter- rogation. Thus, service of a term of imprisonment,

HOWes V. FIelDs (c o nt i nu e d)

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without more, is not enough to constitute Miranda custody. . . .

When a prisoner is questioned, the determina- tion of custody should focus on all of the features of the interrogation. These include the language that is used in summoning the prisoner to the in- terview and the manner in which the interrogation is conducted. An inmate who is removed from the general prison population for questioning and is “thereafter . . . subjected to treatment” in connection with the interrogation “that renders him ‘in custody’ for practical purposes . . . will be entitled to the full panoply of protections prescribed by Miranda.”. . .

The record in this case reveals that respondent was not taken into custody for purposes of Miranda. To be sure, respondent did not invite the interview or consent to it in advance, and he was not advised that he was free to decline to speak with the depu- ties. The following facts also lend some support to respondent’s argument that Miranda’s custody requirement was met: The interview lasted for be- tween five and seven hours in the evening and con- tinued well past the hour when respondent generally went to bed; the deputies who questioned respon- dent were armed; and one of the deputies, accord- ing to respondent, “[u]sed a very sharp tone,”. . .

These circumstances, however, were offset by others. Most important, respondent was told at the outset of the interrogation, and was reminded again thereafter, that he could leave and go back to his cell whenever he wanted (“I was told I could get up and leave whenever I wanted”). Moreover, respondent

was not physically restrained or threatened and was interviewed in a well-lit, average-sized conference room, where he was “not uncomfortable.” He was offered food and water, and the door to the confer- ence room was sometimes left open. “All of these objective facts are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.”

Because he was in prison, respondent was not free to leave the conference room by himself and to make his own way through the facility to his cell. In- stead, he was escorted to the conference room and, when he ultimately decided to end the interview, he had to wait about 20 minutes for a corrections offi- cer to arrive and escort him to his cell. But he would have been subject to this same restraint even if he had been taken to the conference room for some reason other than police questioning; under no cir- cumstances could he have reasonably expected to be able to roam free. And while respondent testified that he “was told . . . if I did not want to cooper- ate, I needed to go back to my cell,” these words did not coerce cooperation by threatening harsher con- ditions. (“I was told, if I didn’t want to cooperate, I could leave”). Returning to his cell would merely have returned him to his usual environment.

Taking into account all of the circumstances of the questioning—including especially the undisputed fact that respondent was told that he was free to end the questioning and to return to his cell—we hold that respondent was not in custody within the meaning of Miranda.

HOWes V. FIelDs (c o nt i nu e d)

In addition to being in custody, a defendant must be subjected to an interrogation before Miranda applies. Clearly, interrogation includes questioning by law enforce- ment officers, but this is not all. In Rhode Island v. Innis, 446 U.S. 291 (1980),10 the Supreme Court held that any “functional equivalent” to express questioning is also interrogation. That is, all actions or words by police officers that can reasonably be expected to elicit an incriminating response are interrogation.

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The nature of the information elicited is not relevant; the Miranda court stated that the decision applies to both inculpatory and exculpatory statements. Accordingly, Miranda is effective whether a defendant confesses or simply makes an admission.

Waiver A defendant may waive the right to have the assistance of counsel and/or to remain silent. The waiver must be made voluntarily and knowingly. In Miranda, the Supreme Court said that the “heavy burden” of proving that a defendant made a knowing and voluntary waiver rests with the prosecution; courts are to presume no waiver.

In determining whether there has been a waiver, the totality of the circumstances is considered. The actions of the police, as well as the defendant’s age, intelligence, and experience, are all relevant to this inquiry.

An express waiver, preferably written or recorded, is best for the prosecution. Although more difficult for prosecutors to defend, unrecorded verbal waivers are also valid. On the other hand, a suspect who knowingly and voluntary speaks to police following the Miranda warnings waives the right to counsel.

In the same case, Berghuis v. Thompkins (2010), the Court held that police do not have an obligation to obtain a waiver of Miranda following the warnings. Instead, they may begin an interrogation and must stop only if the suspect unambiguously invokes the right to remain silent or asks for an attorney. Further, silence by a suspect after receiving the warnings is not the same as an invocation of the rights. If a suspect’s state- ment is ambiguous or equivocal, the police may continue the interrogation.

exceptions to Miranda Not every communication between a police officer and a suspect amounts to an inter- rogation under Miranda. First, volunteered statements are not the product of interroga- tion. The Miranda decision explicitly states that officers are under no duty to interrupt a volunteered confession in order to read a confessor his or her Miranda rights.

Second, routine questions that are purely informational, and normally do not lead to incriminating responses, need not be preceded by a reading of the Miranda warnings. Questions about one’s name, age, address, and employment, for example, are not treated as interrogation. So, a statute that requires individuals who have been legitimately arrested or detained by police to produce identification is valid because a person’s name, standing alone, is not incriminating in most circumstances.11

Third, questions made by officers in the interest of public safety need not be preceded by a Miranda warning. In one case, a woman told two police officers that she had just been raped by a man carrying a gun and that the rapist had gone into a nearby grocery. The officers went to the store and arrested the man. However, he did not have the gun on his person. One of the police officers asked the arrestee where the gun was, and the arrestee responded by indicating the location where the gun was hid- den in the store. The Supreme Court decided that, despite the fact that the question was interrogation and the defendant had not been Mirandized, the evidence could be used at trial. The Court recognized that in such situations, when there is a danger to the officers or the public, officers must be permitted to extinguish the public threat.

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Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices 479

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Thus, the relatively rigid Miranda rules are relaxed when there is a public safety exigency that was the impetus of a brief and limited interrogation designed to meet that exigency.12

The public safety exception came into full focus following the bombings at the 2013 Boston Marathon. The government announced that it would invoke the public safety exception and not immediately Mirandize the suspect Dzhokhar Tsarnaev. The decision was guided by a U.S. Department of Justice Memorandum enti- tled Custodial Interrogation for Public Safety and Intelligence-Gathering Purposes of Operational Terrorists Inside the United States.13 The memorandum advises federal agents who arrest terrorist suspects to:

(1) If applicable, agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights.

(2) After all applicable public safety questions have been exhausted, agents should advise the arrestee of his Miranda rights and seek a waiver of those rights before any further interrogation occurs, absent exceptional circumstances described below.

(3) There may be exceptional cases in which, although all relevant public safety ques- tions have been asked, agents nonetheless conclude that continued unwarned inter- rogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.

The determination whether particular unwarned questions are justified on public safety grounds must always be made on a case-by-case basis based on all the facts and circum- stances. In light of the magnitude and complexity of the threat often posed by terrorist organizations, particularly international terrorist organizations, and the nature of their attacks, the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case. Depending on the facts, such interro- gation might include, for example, questions about possible impending or coordinated terrorist attacks; the location, nature, and threat posed by weapons that might post an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks.

Tsarnaev was apprehended in a national manhunt that involved shoot-outs, the murder of a police officer, and a lock down (public transit and schools were closed and residents were asked to lock themselves at home) of a city. Tsarnaev was injured during the ordeal and taken to hospital where law enforcement officers conducted unMirandized interrogations of the suspect from the time of his arrest until his first appearance before a judge 16 hours later. The judge Mirandized Tsarnaev during the hearing, at which time he stopped talking.14 No doubt asking Tsarnaev if other explo- sives had been built or hidden, whether he had hidden or mislaid any weapons during the manhunt, or any question concerning the immediate public safety. But it is not clear that questions beyond these matters, even if related to his alleged terrorist crimes, fall into the public safety exception. The case against Tsarnaev was in its early stages at

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the time of writing of this edition, so it remains to be seen whether the unMirandized interrogations will result in exclusion of, or a prosecutorial decision to not offer into evidence, his statements.

Fourth, related to the public safety exception is spontaneous questioning by police. If a question is asked spontaneously, such as in response to an emergency, there is no interrogation. For example, if an officer were to return to a room where he has placed two arrestees to find one dead, it would not be an interrogation if the officer were to excitedly utter, “Who killed this man?”

Fifth, the Miranda warnings do not have to be given by undercover officers because there is no custody, no “police-dominated atmosphere.”15 However, once criminal charges have been filed, undercover officers may not be used to extract information from a defendant.16

Sixth, the Supreme Court has determined that Miranda warnings do not have to be recited during routine traffic stops, even though an interrogation occurs. The Court concluded that although traffic stops are seizures for Fourth Amendment purposes, they are not custodial for Fifth Amendment purposes. The “noncoercive aspect of or- dinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.” This includes answering field sobriety questions.17

Multiple Interrogations and Reinterrogation Miranda clearly states that once a defendant invokes the right to remain silent, whether before or during questioning, the interrogation must stop.

Once a defendant states that he or she wants counsel present; the interrogation must cease until the defendant’s attorney is available. If the defendant’s attorney is not available, the police are to respect the defendant’s right to remain silent and not question him or her until the attorney arrives. However, ambiguous references to an attorney do not invoke a suspect’s right to be free of questioning. A suspect’s request must be clear enough that a reasonable officer would believe that the suspect wanted to see counsel.18 A defendant’s invocation must be unambiguous and in the 2010 case Berghuis v. Thompkins the Supreme Court made it clear that silence during a long in- terrogation is not an invocation of the Fifth Amendment right to remain silent. So, a Mirandized suspect who remained silent for a long period and then made a single short admission was unsuccessful in having the admission excluded.

Under very limited circumstances, police officers may reattempt to interrogate a defendant who has invoked the right to remain silent. Although multiple attempts to interrogate an arrestee about the same crime are not permitted, it has been determined that a second interrogation about a separate and unrelated crime may be valid.19

Reinterrogations when a long period of time has passed between the two, with intervening circumstances, are permitted. In Maryland v. Shatzer, a 2010 Supreme Court case, a prisoner who was interrogated by police about a new crime invoked his Miranda rights, resulting in a cessation of the interrogation and the investigation was closed. The case was reopened 3 years later, the prisoner was interrogated after waiving his Miranda rights, and his incriminating statements were used to gain a conviction for

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sexual child abuse. He later asserted that his initial invocation of Miranda should have carried forward to the interrogation 3 years later. The Court rejected the theory, finding that his return to the general population of the prison and the 3-year period constituted a break in Miranda custody.

Miranda clearly stated that once an accused has invoked the right to counsel, the police are prohibited from interrogating him or her until he or she has conferred with counsel. Miranda did not answer this question: May police reinterrogate a defendant with- out counsel present once the defendant has consulted with a lawyer? The answer is found in Minnick v. Mississippi. Minnick makes it clear that once an accused has asserted a right to counsel, all police-initiated interrogations must occur with defense counsel present.

To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, we have held that the police must terminate interrogation of an accused in custody if the accused requests the assistance of counsel. Miranda v. Arizona, 384 U.S. 436, 474 (1966). We reinforced the protections of Miranda in Edwards v. Arizona, 451 U.S. 477, 484–485 (1981), which held that once the accused requests counsel, officials may not reinitiate ques- tioning “until counsel has been made available” to him. The issue in the case before us is whether Edwards protection ceases once the suspect has consulted with an attorney.

Petitioner Robert Minnick and fellow prisoner James Dyess escaped from a county jail in Missis- sippi and, a day later, broke into a mobile home in search of weapons. In the course of the burglary they were interrupted by the arrival of the trailer’s owner, Ellis Thomas, accompanied by Lamar Lafferty and Lafferty’s infant son. Dyess and Minnick used the sto- len weapons to kill Thomas and the senior Lafferty. Minnick’s story is that Dyess murdered one victim and then forced Minnick to shoot the other. Before the escapees could get away, two young women arrived at the mobile home. They were held at gun- point, then bound by hand and foot. Dyess and

Minnick fled in Thomas’ truck, abandoning the ve- hicle in New Orleans. The fugitives continued to Mexico, where they fought, and Minnick then pro- ceeded alone to California. Minnick was arrested in Lemon Grove, California, on a Mississippi warrant, some four months after the murders.

The confession at issue here resulted from the last interrogation of Minnick while he was held in the San Diego jail, but we first recount the events which preceded it. Minnick was arrested on Friday, August 22, 1986. Petitioner testified that he was mistreated by local police during and after the arrest. The day following the arrest, Saturday, two FBI agents came to the jail to interview him. Petitioner testified that he refused to go to the interview, but was told he would “have to go down or else.”. . . The FBI report indicates that the agents read petitioner his Miranda warnings, and that he acknowledged he understood his rights. He refused to sign a rights waiver form, however, and said he would not answer “very many” questions. Minnick told the agents about the jail break and the flight, and described how Dyess threatened and beat him. Early in the interview, he sobbed “[i]t was my life or theirs,” but otherwise he hesitated to tell what hap- pened at the trailer. The agents reminded him he

MINNICK V. MIssIssIPPI 498 U.S. 146 (1990)

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did not have to answer questions without a lawyer present. According to the report, “Minnick stated, ‘Come back Monday when I have a lawyer,’ and stated that he would make a more complete state- ment then with his lawyer present.”. . .

After the FBI interview, an appointed attorney met with petitioner. Petitioner spoke with the law- yer on two or three occasions, though it is not clear from the record whether all of these conferences were in person.

On Monday, August 25, Deputy Sheriff J.C. Denham of Clarke County, Mississippi, came to the San Diego jail to question Minnick. Minnick testi- fied that his jailers again told him he would “have to talk” to Denham and that he “could not refuse.”. . . Denham advised petitioner of his rights, and petitioner again declined to sign a rights waiver form. Petitioner told Denham about the escape and then proceeded to describe the events at the mobile home. . . .

Minnick was tried for murder in Mississippi. He moved to suppress all statements given to the FBI or other police officers, including Denham. The trial court denied the motion with respect to petitioner’s statements to Denham, but suppressed his other statements. Petitioner was convicted on two counts of capital murder and sentenced to death.

On appeal, petitioner argued that the confession to Denham was taken in violation of his rights to counsel under the Fifth and Sixth Amendments. The Mississippi Supreme Court rejected the claims. . . .

The Mississippi Supreme Court relied on our statement in Edwards that an accused who invokes his right to counsel “is not subject to further inter- rogation by the authorities until counsel has been made available to him. . . .” 451 U.S., at 484–485. We do not interpret this language to mean, as the Mississippi court thought, that the protection of Edwards terminates once counsel has consulted with the suspect. In context, the requirement that counsel be “made available” to the accused refers to more than an opportunity to consult with an at- torney outside the interrogation room.

In Edwards, we focused on Miranda’s instruc- tion that when the accused invokes his right to coun- sel, the “interrogation must cease until an attorney is present during custodial interrogation. . . . ” 451 U.S., at 482 (emphasis added). In the sentence preceding the language quoted by the Mississippi Supreme Court, we referred to the “right to have counsel present during custodial interrogation.”. . .

In our view, a fair reading of Edwards and sub- sequent cases demonstrates that we have inter- preted the rule to bar police-initiated interrogation unless the accused has counsel with him at the time of questioning. Whatever the ambiguities of our earlier cases on this point, we now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.

MINNICK V. MIssIssIPPI (c o nt i nu e d)

Another twist on multiple interrogations was introduced by the police practice of eliciting a confession without the benefit of Miranda warning, following that confes- sion with the warning, and then attempting to elicit the confession again. Apparently, there are two factors at play. First, Miranda prevents some suspects from confessing. Second, once a suspect confesses, the gates have been opened and he or she is likely to repeat the confession, even if the Miranda warnings are interposed. With this knowl- edge, police across the nation began seeking confessions they knew were inadmissi- ble, only to then Mirandize their suspects in hope of obtaining a second confession

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(see Exhibit 13–1). This practice was invalidated as violating the Fifth Amendment in Missouri v. Seibert, 542 U.S. 600 (2004),20 where the Court wrote:

Strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions [what this Court said] Congress could not do by statute. Because the question-first tactic effectively threatens to thwart Miranda’s purpose of reducing the risk that a coerced confession would be admitted, and because the facts here do not rea- sonably support a conclusion that the warnings given could have served their purpose, [the defendant’s] postwarning statements are inadmissible.

exhibit 13–1 SUMMARy OF SIGNIFICANT MIRANDA CASES

Rule Case

Suspects in custody and subject to an interrogation must be advised of their rights to remain silent, that statements may be used to prove guilt at trial, to the assistance of counsel, and for the indigent, counsel must be provided.

Miranda v. Arizona (1966)

A suspect is in custody if a reasonable person would have believed he or she was not free. The subjective beliefs of the suspect and officers are immaterial.

Stansbury v. CA (1994)

Volunteered statements, responses to routine questions, and responses to questions concerning immediate public safety do not have to follow Miranda warnings to be admissible.

Questioning by undercover officers does not need to be Mirandized. Illinois v. Perkins (1990)

Suspect silence is not an invocation of Miranda; a suspect’s invocation must be unambiguous.

Berghuis v. Thompkins (2010)

Reinterrogation for the same crime af ter a suspect has invoked and consulted with an at torney can only occur with suspect’s at torney present.

Minnick v. Mississippi (1990)

Interrogation of suspect for separate and unrelated crime af ter suspect invoked Miranda for different crime is permit ted, subject to Miranda again.

Michigan v. Mosely (1975)

Police technique of eliciting non-Mirandized confessions followed by Miranda warnings and reinterrogation invalid.

Missouri v. Seibert (2004)

A break in custody allows reinterrogation without the presence of counsel, even if Miranda previously invoked.

Maryland v. Shatzer (2010)

The age and maturity of a minor are factors in custody determinations.

JBD v. North Carolina (2010)

Precise words not required for warnings so long as rights are communicated.

Florida v. Powell (2010)

Prisoners not automatically in Miranda custody; separate custodial determination is made.

Howes v. Fields (2012)

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Violating Miranda Any statement obtained in violation of Miranda is inadmissible at trial to prove guilt. The defendant ordinarily raises the issue prior to trial through a motion to suppress.

Although statements that are illegally obtained may not be admitted to prove a defendant’s guilt, the Supreme Court has said that statements that violate Miranda may be admitted, under certain circumstances, to impeach the defendant.21 So, if a defen- dant’s testimony at trial is different from an earlier confession that was suppressed as violative of Miranda, the confession may be admitted to rebut the defendant’s in-court testimony. Also, the question concerning the application of the fruits of the poisonous tree doctrine to evidence obtained as a result of a non-Mirandized confession was open for many years. The presumption of many scholars and the decisions of many lower courts was that consequential evidence should be excluded. A minority of lower courts disagreed. The Supreme Court resolved this issue in,22 where it held that physical fruits of a non-Mirandized confession are not to be suppressed at trial. Justice Thomas, writ- ing for the majority, penned:

[T]he core protection afforded by the Self-Incrimination Clause is a prohibition on com- pelling a criminal defendant to testify against himself at trial. . . . The Clause can-not be violated by the introduction of nontestimonial evidence obtained as a result of volun- tary statements. . . . It follows that police do not violate a suspect’s constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda. Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial. And, at that point, “[t]he exclusion of unwarned statements . . . is a complete and sufficient remedy” for any perceived Miranda violation. . . . Thus, unlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self- Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter. There is therefore no reason to apply the “fruit of the poisonous tree” doctrine. . . . But Dickerson’s characterization of Miranda as a constitutional rule does not lessen the need to maintain the closest possible fit between the Self-Incrimination Clause and any judge-made rule designed to protect it. And there is no such fit here. Introduction of the nontestimonial fruit of a voluntary statement, such as respondent’s Glock, does not implicate the Self-Incrimination Clause. The admission of such fruit presents no risk that a defendant’s coerced statements (however defined) will be used against him at a criminal trial. In any case, “[t]he exclusion of unwarned statements . . . is a complete and sufficient remedy” for any perceived Miranda violation. . . .

The Court’s decision has been interpreted by some state courts as a retraction of a constitutional right, regardless of the Court’s treatment of it as something else. The Ohio Supreme Court, for example, held that fruits resulting from unwarned statements are to be excluded. In its 2006 decision, State v. Farris,23 that court stated

The Ohio Constitution “is a document of independent force. In the areas of in- dividual rights and civil liberties, the U.S. Constitution, where applicable to the states, provides a floor below which state court decisions may not fall. As long as state courts

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information about them. Again, requests for information under this law are aside from, not in addition to, criminal discovery rules.

Reciprocal Discovery The Fifth Amendment’s freedom from self-incrimination clause, as well as due process, greatly limits what can be expected of defendants in discovery. Requiring defendants to give notice of affirmative defenses, such as alibi and insanity, is common and constitutional. Many jurisdictions also expect defendants to provide witness lists, pretrial statements of the witnesses, and to detail expert testimony and reports that will be offered at trial.

Motion Practice In both civil and criminal practice, a motion is a request made to a court for it to do some- thing. In most cases a party that files a motion is seeking an order from the court. Gener- ally, when a person desires something from a court, a formal motion must be filed and copies sent to opposing counsel. On occasion, oral motions are made. This is most com- mon during trials and hearings. Some of the most common motions are discussed here.

Motion to Dismiss/Quash If a defendant believes that the indictment or information is fatally flawed, the ap- propriate remedy is a motion to dismiss. In some jurisdictions, this would be called a motion to quash. Examples of fatal flaws in the charging instrument are as follows: the court lacks jurisdiction; the facts alleged do not amount to a crime; an essential element is not charged; or the defendant has a legal defense, such as double jeopardy.

If the form of the charging instrument is attacked, courts often permit prosecutors to amend the charge rather than dismissing it entirely. Dismissal of an indictment or information does not mean that the defendant cannot be recharged. A person is not in “jeopardy” under the Fifth Amendment until later in the proceeding.

Motion to Suppress You have already learned that evidence obtained in an unconstitutional manner may not be used at trial. Objection at trial to the admission of such evidence is one method of excluding such evidence. Another is by way of a motion to suppress prior to trial.

A separate hearing is conducted prior to trial to determine whether the motion to suppress should be granted. Defendants may testify at suppression hearings, and their testimony may not be used against them at trial.29 To allow a defendant’s testimony from a suppression hearing to be used at trial would place the defendant in a position of choosing between the right to suppress evidence and the right to be free from self- incrimination. The best alternative is to allow the defendant to testify and to prohibit that testimony from being used later.

Who has the burden of proof in suppression hearings varies by jurisdiction and on what the defendant wishes to be suppressed. For example, most jurisdictions place the burden of proving that a search pursuant to a warrant was unconstitutional on the defendant. The opposite is true if there was no warrant; the government bears the bur- den of proving the propriety of the search. Most jurisdictions also place the burden of proving that a confession was voluntary upon the prosecution.

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Motion for Change of Venue Venue means “place for trial.” In state criminal proceedings, venue usually lies in the county where the crime occurred. In federal proceedings, venue lies in the district where the crime occurred. Many federal crimes are interstate in character, and the charges may be filed in any district where the crime took place.

Fed. R. Crim. P. 21 permits transfer of a case from one district to another if “the defendant cannot obtain a fair and impartial trial” at the location where the case is pending. In addition, a district judge may transfer a case if it is most convenient for the defendant and witnesses.

Pretrial publicity of criminal matters may be cause to transfer a case (change venue in state proceedings). If a defendant receives considerable negative media coverage, it may be necessary to try the defendant in another location. Several factors are taken into consideration when a defendant moves for a change of venue due to excessive nega- tive publicity, including the total amount of coverage, whether media attention had increased or waned since the case first became public, the length of time between first coverage and trial, the extent to which the coverage itself directly accused or implied guilt, and the nature of the facts that had been brought to light.

The early 2000s witnessed some of the largest and most costly financial scandals in U.S. history. Millions of people lost money and the economies of many nations suffered as a result of corruption in the accounting, banking, investment, energy, and other industries. Enron, one of the United States’ largest corporations, found itself bankrupt in 2001. Jeffrey Skillings, its president and CEO, was charged and convicted, among others, as having lied to shareholders and others about the financial status of the company pre-bankruptcy. The case generated considerable attention around the world. Believing he could not be given a fair trial in Houston, Texas, the site of Enron’s headquarters and where the charges were filed, he sought a change of venue. The trial court denied his motion. Eventually, the Supreme Court heard his case.

In November 2004, Skilling moved to transfer the trial to another venue; he contended that hostility toward him in Houston, coupled with extensive pre- trial publicity, had poisoned potential jurors. To sup- port this assertion, Skilling, aided by media experts, submitted hundreds of news reports detailing En- ron’s downfall; he also presented affidavits from the experts he engaged portraying community attitudes in Houston in comparison to other potential venues.

The U.S. District Court for the Southern Dis- trict of Texas, in accord with rulings in two earlier instituted Enron-related prosecutions, denied the venue-transfer motion. Despite “isolated incidents of intemperate commentary,” the court observed, media coverage “ha[d] [mostly] been objective and unemotional,” and the facts of the case were “nei- ther heinous nor sensational.” Moreover, “courts ha[d] commonly” favored “effective voir dire . . . to

SKILLINGS V. U.S. 561 U.S. __ (2010)

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SKILLINGS V. U.S. (c o nt i nu e d)

ferret out any [juror] bias.” Pretrial publicity about the case, the court concluded, did not warrant a pre- sumption that Skilling would be unable to obtain a fair trial in Houston. . . .

Following a 4-month trial and nearly five days of deliberation, the jury found Skilling guilty of 19 counts, including the honest-services-fraud con- spiracy charge, and not guilty of 9 insider-trading counts. The District Court sentenced Skilling to 292 months’ imprisonment, 3 years’ supervised release, and $45 million in restitution. . . .

The Sixth Amendment secures to criminal de- fendants the right to trial by an impartial jury. By constitutional design, that trial occurs “in the State where the . . . Crimes . . . have been committed.” Art. III, § 2, cl. 3. See also Amdt. 6 (right to trial by “jury of the State and district wherein the crime shall have been committed”). The Constitution’s place-of-trial prescriptions, however, do not impede transfer of the proceeding to a different district at the defendant’s request if extraordinary local prejudice will prevent a fair trial—a “basic requirement of due process”. . . .

When does the publicity attending conduct charged as criminal dim prospects that the trier can judge a case, as due process requires, impar- tially, unswayed by outside influence? Because most cases of consequence garner at least some pretrial publicity, courts have considered this ques- tion in diverse settings. We begin our discussion by addressing the presumption of prejudice from which the Fifth Circuit’s analysis in Skilling’s case proceeded. The foundation precedent is Rideau v. Louisiana, 373 U.S. 723 (1963).

Wilbert Rideau robbed a bank in a small Loui- siana town, kidnaped three bank employees, and killed one of them. Police interrogated Rideau in jail without counsel present and obtained his con- fession. Without informing Rideau, no less seeking his consent, the police filmed the interrogation. On three separate occasions shortly before the trial, a

local television station broadcast the film to audi- ences ranging from 24,000 to 53,000 individuals. Rideau moved for a change of venue, arguing that he could not receive a fair trial in the parish where the crime occurred, which had a population of approxi- mately 150,000 people. The trial court denied the motion, and a jury eventually convicted Rideau. The Supreme Court of Louisiana upheld the conviction.

We reversed. “What the people [in the com- munity] saw on their television sets,” we observed, “was Rideau, in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnapping, and murder.” “[T]o the tens of thousands of people who saw and heard it,” we explained, the interrogation “in a very real sense was Rideau’s trial—at which he pleaded guilty.” We therefore “d[id] not hesitate to hold, without paus- ing to examine a particularized transcript of the voir dire,” that “[t]he kangaroo court proceedings” trail- ing the televised confession violated due process.

We followed Rideau ‘s lead in two later cases in which media coverage manifestly tainted a crimi- nal prosecution. In Estes v. Texas, 381 U.S. 532, 538 (1965), extensive publicity before trial swelled into excessive exposure during preliminary court pro- ceedings as reporters and television crews overran the courtroom and “bombard[ed] . . . the commu- nity with the sights and sounds of” the pretrial hearing. The media’s overzealous reporting efforts, we observed, “led to considerable disruption” and denied the “judicial serenity and calm to which [Billie Sol Estes] was entitled.”

Similarly, in Sheppard v. Maxwell, 384 U.S. 333 (1966), news reporters extensively covered the story of Sam Sheppard, who was accused of bludgeon- ing his pregnant wife to death. “[B]edlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom,” thrust- ing jurors “into the role of celebrities.” Pretrial me- dia coverage, which we characterized as “months

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SKILLINGS V. U.S. (c o nt i nu e d)

[of] virulent publicity about Sheppard and the mur- der,” did not alone deny due process, we noted. But Sheppard’s case involved more than heated report- ing pretrial: We upset the murder conviction be- cause a “carnival atmosphere” pervaded the trial.

In each of these cases, we overturned a “con- viction obtained in a trial atmosphere that [was] ut- terly corrupted by press coverage”; our decisions, however, “cannot be made to stand for the proposi- tion that juror exposure to . . . news accounts of the crime . . . alone presumptively deprives the defen- dant of due process.” Prominence does not neces- sarily produce prejudice, and juror impartiality, we have reiterated, does not require ignorance. . . .

First, we have emphasized in prior decisions the size and characteristics of the community in which the crime occurred. In Rideau, for example, we noted that the murder was committed in a par- ish of only 150,000 residents. Houston, in contrast, is the fourth most populous city in the Nation: At

the time of Skilling’s trial, more than 4.5 million in- dividuals eligible for jury duty resided in the Hous- ton area. Given this large, diverse pool of potential jurors, the suggestion that 12 impartial individuals could not be empaneled is hard to sustain. . . .

Second, although news stories about Skill- ing were not kind, they contained no confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight. Rideau’s dramatically staged admission of guilt, for instance, was likely imprinted indelibly in the mind of anyone who watched it. . . .

Finally, and of prime significance, Skilling’s jury acquitted him of nine insider-trading counts. Similarly, earlier instituted Enron-related pros- ecutions yielded no overwhelming victory for the Government. . . .

[therefore, the trial court’s decision to not change venue was upheld]

Because of the First Amendment free press issue, judges are generally prohibited from excluding the press or public from hearings.30 In some instances judges may order the attorneys involved in a case not to provide information to anyone not involved in the proceeding.

Motion for Severance Fed. R. Crim. P. 8 permits two or more defendants to be charged in the same infor- mation or indictment if they were involved in the same crime. That rule also permits joinder of two offenses by the same person in one charging instrument, provided they are similar in character or arise out of the same set of facts.

In some situations, severance of the two defendants may be necessary to assure fair trials. For example, if two defendants have antagonistic defenses, severance must be granted. Defenses are antagonistic if the jury must disbelieve one by believing the other. For example, if Defendant A denies being at the scene of a crime, and Defendant B claims that they were both there, but also claims that A forced him to commit the crime, their defenses are antagonistic.

If a defendant is charged with two or more offenses, it may be necessary to sever them to have a fair trial. For example, if a defendant plans to testify concerning one charge and not the other, severance is necessary.

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Motion in Limine Prior to trial, both the defendant and the prosecution may file motions in limine. This is a request that the court order the other party not to mention or attempt to question a witness about some matter. A motion in limine is similar to a mo- tion to suppress, except that it encompasses more than admission of illegally seized evidence.

For example, if one anticipates that the opposing counsel will attempt to question a witness about evidence that is inadmissible under the rules of evidence (e.g., hearsay), a motion in limine may be filed to avoid having to object at trial. This is important, as often a witness may blurt out the answer before an attorney has had an opportunity to object. In addition, knowing whether the judge will permit the admission of evidence prior to trial helps an attorney to plan the case.

Other Motions A variety of other motions may be filed. If the prosecution fears that revealing informa- tion required under a discovery rule will endanger the case or a person’s life, a motion for a protective order may be filed. In such cases the trial court reviews the evidence in camera and decides if it is necessary to keep it from the defendant. If so, the judge will enter a protective order so stating.

Motions for continuance of hearings and trial dates are common. In criminal cases, courts must be careful not to violate speedy trial requirements.

If two defendants have been charged jointly, one or both may file a motion for severance of trial. If defense counsel believes that the defendant is not competent to stand trial, a motion for mental examination may be filed.

Pretrial Conference Sometime prior to trial, the court will hold a pretrial conference. This may be weeks or only days before trial.

At this conference the court will address any remaining motions and discuss any problems the parties have. In addition, the judge will explain his or her method of try- ing a case, such as how the jury will be selected. The next stage is trial.

extradItIon and detaIners If wanted persons are located outside the jurisdiction where they are, or will be, charged, extradition is one method of securing their presence in the charging jurisdiction. Extradition is the surrender of a person from one jurisdiction to another where the person has been charged or convicted of a crime.

Extradition usually occurs under the provisions of a treaty. Extradition includes transfers between states, as well as between nations. Extradition, especially interna- tional, is as much a political decision as a legal one.

Pursuant to the Uniform Interstate Criminal Extradition Act, which has been adopted by 47 states,31 the request for extradition is made between governors. If a

extradition

■ One country (or state)

giving up a person to a

second country (or state)

when the second requests

the person for a trial on

a criminal charge or for

punishment after a trial.

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governor determines that the person sought should be delivered, an arrest warrant is issued by that governor.

Once seized, the arrestee is brought before a judge and may file a petition for writ of habeas corpus. During the proceedings, release on bail is permitted, unless the crime charged is one punishable by death or life imprisonment in the state where the crime was committed. If the person sought is under charge in the sending state, the governor may order his or her surrender immediately or may wait until the prosecution and punishment are completed in the first state.

Generally, the guilt or innocence of the accused may not be considered by the gov- ernor or courts during the proceedings; that issue is left to the requesting jurisdiction. It is the obligation of the governor and courts of the sending state to be sure that the correct person is seized and that proper procedures are followed.

Defendants may waive extradition. This waiver must be made in court, and defen- dants must be informed of their rights, including habeas corpus, for waivers to be valid.

The law permits arrests by police officers from outside a state in hot-pursuit situa- tions. If an arrest is made in hot pursuit, the officer is to bring the accused before a local court, which is to order the defendant held, or released on bail, until an extradition warrant is issued by the governor.

The Supreme Court has held that the exclusionary rule does not exclude persons who have been illegally seized from trial. In Frisbie v. Collins, 342 U.S. 519 (1952), the fact that Michigan police officers kidnapped a defendant from Illinois and returned him to Michigan, disregarding extradition laws, did not affect the court’s jurisdiction to try the defendant. The same result was reached in a case in which international extradition laws were not followed.32 Today, if the government’s conduct in seizing a defendant were outrageous or shocking, there is a possibility that a court would bar prosecution.33

You may recall from discussion of double jeopardy earlier in this text that the Fifth Amendment’s Double Jeopardy Clause does not prevent two sovereigns from charging an individual for the same crime or two crimes arising from the same facts. Accord- ingly, one state may grant immunity to an individual and then extradite that individual to another state to be tried for the immunized crime.

A detainer is a request (or order) for the continued custody of a prisoner. For ex- ample, suppose federal charges are pending against a Utah prisoner. The United States would issue a detainer requesting that Utah hold the prisoner after his or her sentence is completed, so that the United States may take custody. This situation does not raise jurisdictional issues, as federal authorities have nationwide jurisdiction. As to interstate detention, the detainer is used in conjunction with extradition.

Pursuant to the Interstate Agreement on Detainers, a state may request the tem- porary custody of a prisoner of another state in order to try the person. Once the trial is completed, the prisoner is returned, regardless of the outcome. If the prisoner is convicted, a detainer is issued and he or she is again returned after the sentence is completed in the sending state.

The Agreement also provides that prisoners are to be notified of any detainers against them. Further, if a state issues a detainer for a prisoner, that prisoner may

detainer

■ A warrant or court order

to keep a person in custody

when that person might

otherwise be released.

This is often used to make

sure a person will serve a

sentence or attend a trial

in one state at the end of

a prison term in another

state or in a federal prison.

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request to be temporarily transferred to that state for final disposition of that case. A request for final disposition by a prisoner is deemed a waiver of extradition to and from the sending state. Also, it is deemed a waiver of extradition to the receiv- ing state to serve any resulting sentence after the sentence in the sending state is completed.

It is a common practice for jail and prison officials to conduct warrant checks before releasing or transferring prisoners. The importance of this practice was highlighted by the tragic events leading to the death of 6-year-old Jake Robel. On February 20, 2000, a local jail in Missouri released Kim Davis. Within hours of his release, Davis carjacked an automobile owned by Christy Robel. Christy’s son, Jake Robel, was in the automobile at the time Kim Davis stole the car. Ms. Robel attempted to remove her son from the car, but he became entangled in the seatbelt and her pleas to Kim Davis to stop were ignored. She was dragged for a short distance before she lost her grip of the car. Tangled in the seatbelt and hanging out of the car, Jake Robel was dragged five miles by Kim Davis while driving at speeds reaching 80 miles per hour. Jake was dead by the time Kim Davis was forced to stop the vehicle. It was discovered that there was an outstanding warrant for the arrest of Kim Davis when he was released and that a warrants check had not been conducted by jail officials. Kim Davis was subsequently convicted of second-degree murder and sentenced to life imprisonment. In response to the records check oversight, Missouri enacted “Jake’s Law,” a statute requiring records checks of individuals scheduled for release from jails and prison in Missouri.

removal Congress has provided that, in certain circumstances, criminal cases may be removed from state courts to federal courts. Removal is premised upon the principle that certain cases are more properly adjudicated in a federal, rather than state, court. The purpose of removal is to preserve the sovereignty of the federal government by assuring a fair trial to particular criminal defendants. Otherwise, the states could interfere with the functioning of the federal government by harassing federal officials through criminal proceedings.

28 U.S.C. § 1442 provides that a federal official sued in state court, whether the action is civil or criminal, may remove the case to the federal district court where the action is pending, if the suit concerns the performance of his or her of- ficial duties. Similarly, 28 U.S.C. § 1442(a) provides for removal of cases, civil or criminal, filed against members of the U.S. armed forces for actions taken in the course of their duties. 28 U.S.C. § 1443 provides for removal of certain civil rights cases.

Removal of criminal cases is the same as for civil: The defendant must file a notice of, and petition for, removal.34 Improperly removed actions are remanded to the state court from which they came.35

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LAWYER COMPETENCE AND COMPUTERS

section 1.1 of the aBa Model rules of professional Conduct require attor- neys to provide competent representation. section 1.6 requires attorneys to maintain the confidences of their clients. there are obvious applica- tions of these rules. an attorney may not, for example—and with few exceptions—reveal the content of a client’s statements, such as a confes- sion, to any person. the rule is clear. how far an attorney must go in pro- tecting client information from theft and unintended disclosures is not. the advent of mass data storage and the use of the internet to access client information have raised new questions about the obligation to preserve client confidentiality.

Must an attorney lock client files when they are not in use? May an attorney send confidential information by e-mail? May confidential data be stored on a mass storage device? if so, must it be encrypted? the state Bar of arizona addressed just such a question in 2005 where it held that lawyers must take reasonable and competent steps to avoid disclosure of client confidences through theft or accidental disclosure. the arizona bar went further by requiring attorneys who do not have the technical exper- tise to ensure the confidentiality of client data to secure the services of a computer security expert. this ruling, of course, requires a financial invest- ment in the security expert as well as in software and hardware.

the aBa has not gone as far as the arizona bar in its interpretation of sections 1.1 and 1.6. in 1999, it interpreted these rules to not require encryption, or other increased security, of e-mail correspondence containing client information. however, as state bar authorities increase their expecta- tions and as computer theft and crime increases, the likelihood increases that aBa will elaborate a more sophisticated and security conscious set of rules.

Source: John D. Comerford, “Competent Computing: A Lawyer’s Ethical Duty to Safeguard the Confidentiality and Integrity of Client Information Stored on Computers and Computer Networks,” 19 Geo. J. Legal Ethics 629 (2006).

Ethical Considerations

Web Links directory of attorneys For a listing of attorneys, try one of these two sites: Martindale-Hubbell at http://www.martindale.com/ or http://lawyers.findlaw.com

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Trial righTs of DefenDanTs The Right to a Jury Trial A trial is a method of determining guilt or innocence. In medieval England, trials by ordeal, combat, and compurgation were used.

To demonstrate how trials have changed, consider trial by ordeal. Trial by ordeal was considered trial by God; that is, God determined the person’s guilt or innocence. There were two ordeals: by water and fire. Two water ordeals were used. In the first the accused was thrown into a body of water. If he sank he was adjudged innocent, and if he floated he was guilty. In the second water ordeal, the accused’s arm was submerged in boiling water. The defendant had to survive this unhurt to be proven innocent. The fire ordeal was similar, the accused having to walk over fire or grasp hot irons.

Trial as we know it today finds its roots in the Magna Carta (1215), which guar- anteed free men trial by their peers. Unlike juries today, those juries comprised people who knew the facts of the case. The concept of trial by a jury of one’s peers was of great importance to the colonists of the United States and made its way into the Constitu- tion of the United States.

The Sixth Amendment to the U.S. Constitution reads, in part, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an im- partial jury of the State and district wherein the crime shall have been committed.” The Sixth Amendment is fully applicable against the states via the Fourteenth Amendment. See exhibit 15-1 for an illustration of the trial rights found in the Sixth Amendment.

The Sixth Amendment has been interpreted to mean that defendants have a right to a jury trial for all offenses that may be punished with more than six months’ impris- onment. Most crimes that have as their maximum punishment less than six months are “petty offenses,” and there is no right to trial by jury.1

Note that the term “most” is used. Some argue that when fines become large enough, one is entitled to a jury trial, regardless of the amount of time one could be sentenced to spend in jail. In addition, it is argued that crimes that are moral in nature and subject the defendant to ridicule and embarrassment justify trial by jury, even when the punishment is less than six months’ imprisonment. The same question is raised concerning crimes that were indictable at common law. The Supreme Court has not answered these questions, and the lower courts that have addressed these issues are split.

The maximum penalty allowed determines if a crime is petty, not the actual sen- tence. For example, if a crime is punishable by from three months to one year in jail, the defendant is entitled to a jury, even if the trial judge routinely sentences those con- victed to three months for the offense. Some crimes do not have a legislatively estab- lished punishment, such as contempt. In such cases the issue is whether the defendant is sentenced to more than six months in jail. If so, the defendant is entitled to a jury.

Although the right to a jury trial for nonpetty offenses nearly always attaches, there are a few exceptions. There is no right to a jury in military trials. In addition, those appearing in juvenile court (delinquency proceedings) are not entitled to a jury trial.2 Of course, juveniles who are tried as adults are entitled to the same rights as adults, including the right to have a jury trial.

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Juries sit as fact finders. A defendant may be entitled to have a jury decide guilt or innocence, and as you learn in the next chapter, there is also a right to have juries decide the facts that are essential to passing sentence. Some jurisdictions have juries actually impose sentence, or make a sentence recommendation to the trial court; however, this is not usually the practice and there is no federal constitutional reason for it.

The Supreme Court has held that there is no constitutional requirement for 12 jurors.3 Nor does the Constitution require juror unanimity. There is a limit to how small a jury may be and how few jurors must concur in a verdict. In one case, the Supreme Court found a law unconstitutional that required trial by six jurors and per- mitted conviction with a vote of five to one.4

It is common for six-person juries to be used for misdemeanors. However, a unani- mous verdict is constitutionally required for conviction. If a 12-member jury is used, it is constitutional to permit conviction upon a concurrence of 9 or more jurors.

A defendant cannot be penalized for choosing to proceed to trial rather than plead- ing guilty. In United States v. Jackson, 390 U.S. 570 (1968), the Supreme Court found that a statute making the death penalty available for those who were tried and not for those who pled guilty was violative of the Sixth Amendment. An interesting question that has received considerable attention from the Supreme Court in recent years is exactly what facts must be found by a jury. As you will learn in the next chapter, the responsibility of juries extends beyond the guilt decision. They must also find all facts that are essential to the sentencing decision.

The Right to a Public Trial The Sixth Amendment also guarantees the right to a public trial. This guarantee applies throughout the trial, from openings to return of the verdict; it also applies to many pre- trial hearings, such as suppression hearings. The presence of the public is intended to keep prosecutions “honest.” As the Supreme Court stated in Estes v. Texas, 381 U.S. 532 (1965): “History has proven that secret tribunals were effective instruments of oppression.”

The right to a public hearing does not mean that everyone who wishes to attend has to be permitted in. The trial judge is responsible for maintaining order in the courtroom and may require the doors to be shut once all seats have been filled. Also, a disruptive citizen may be removed.

The defendant’s right to a public trial is not absolute. Trial judges, acting with extreme caution, may order that a hearing be conducted in private. Facts that support excluding the public are rare. An example of when exclusion of the public may be justi- fied is when an undercover law enforcement agent testifies, and public exposure would put the officer’s life in jeopardy.

If a court closes a hearing (or trial) without justification, the defendant is entitled to a new hearing, regardless of whether the defendant was actually harmed. The 1998 First Circuit Court of Appeals case, United States v. DeLuca, addressed both the presumption of innocence and the right to a public trial in what are rather unusual circumstances.

Generally members of the press have no greater right to attend a hearing than do other members of the public. However, many judges provide special seating for reporters.

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[Defendants were tried and convicted of extortion. Because of fears of juror tampering and intimida- tion, the trial judge ordered that the identity of the jurors be kept anonymous. The judge also permit- ted the U.S. Marshal to screen trial spectators. The defendants appealed several issues, including whether an anonymous jury violates the presump- tion of innocence and whether the screening vio- lated the Sixth Amendment right to a public trial.]

A. THE ANONYMOUS JURY EMPANELMENT

Appellants first contend that the decision to em- panel an anonymous jury constituted an abuse of discretion. . . . We disagree.

Although the empanelment of an anonymous jury should be recognized as an extraordinary pro- tective device, especially if it tends to suggest that the jurors may have something to fear from the ac- cused, thereby conceivably encroaching upon the presumption of innocence, it is a permissible precau- tion where (1) there are strong grounds for conclud- ing that it is necessary to enable the jury to perform its factfinding function, or to ensure juror protection; and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused.

Our review takes into account not only the evidence available at the time the anonymous em- panelment occurred, but all relevant evidence in- troduced at trial. We conclude that the record as a whole affords sufficient foundation for empaneling an anonymous jury both as a prudent safety pre- caution and a means of ensuring unfettered perfor- mance of the factfinding function.

First, the record links appellants to organized crime, a factor which strongly indicated that clandes- tine “outside” assistance might be brought to bear in

any effort to intimidate or punish jurors. Moreover, Ouimette’s capacity and readiness to enlist criminal confederates in jury tampering plans was supported by actual precedent. See Ross, 33 F.3d at 1520 (court may consider “defendant’s past attempts to interfere with the judicial process”); United States v. Tutino, 883 F.2d 1125, 1132–1133 (2d Cir. 1989).

Second, both Ouimette and DeLuca Sr. have long been involved in violent crimes, including rob- bery, assault with a dangerous weapon, larceny in a dwelling, and conspiracy to commit murder, not to mention their violent extortions in the instant case.

Third, appellants also attempted to tamper with witnesses and to suborn perjury in the instant case. DeLuca Sr. and Ouimette, through intermediar- ies, pressured prospective prosecution witnesses, Paula Coppola and Robert Buehne, to perjure them- selves, and offered $5,000 to another prospective government witness, David Duxbury, to abscond prior to trial. Thereafter, when Duxbury neverthe- less showed up at a pretrial hearing, Ouimette told an associate: “If we can’t get [Duxbury], we’ll get one of his kids.” See United States v. Edmond, 311 U.S. App. D.C. 235, 52 F.3d 1080, 1091–1092 (D.C. Cir. 1995) (noting that a general preparedness to obstruct the judicial process may serve as indirect evidence of readiness to engage in jury tampering as well); United States v. Aulicino, 44 F.3d 1102, 1116 (2d Cir. 1995) (same).

Fourth, both Ouimette and DeLuca were con- fronting mandatory lifetime sentences upon convic- tion, which surely provided a strong inducement to resort to extreme measures in any effort to influ- ence the outcome of their trial. See Ross, 33 F.3d at 1520. Moreover, their trial was prominently and ex- tensively covered by local print and electronic me- dia (e.g., several lengthy front-page stories in the

UNITED STATES V. DELUCA 137 F.3d 24 (1st Cir. 1998)

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Providence Journal), to the degree that any public disclosure of the jurors’ identities would have en- hanced the practicability, hence the likelihood, of efforts to harass, intimidate, or harm the jurors.

Finally, the district court adopted prudent mea- sures designed to safeguard defendants’ constitu- tional rights by informing the members of the jury that their identities would not be disclosed, so as to ensure that no extrajudicial information could be communicated to them during trial, either by the public or by media representatives. Thus, the court explained, the constitutional right of each defen- dant to a jury trial, based exclusively on the evi- dence, would be preserved.

In our view, the district court thereby satisfacto- rily averted any unacceptable risk of intrusion upon the constitutional rights of the individual defen- dants by diverting juror attention from the possible perception that anonymous empanelment was a safeguard against defendants’ dangerousness. Ac- cordingly, given the demonstrated need, coupled with the cautionary instruction fashioned by the district court, the anonymous jury empanelment did not constitute an abuse of discretion.

B. THE PROCEDURAL IMPEDIMENTS TO COURTROOM ACCESS BY SPECTATORS

The United States Marshal, acting sua sponte on the first day of trial, established a screening and identification procedure whereby each would—be spectator was required to present written identifica- tion before being allowed to enter the courtroom. Deputy marshals examined whatever written iden- tification was presented, then recorded the type of identification and the bearer’s name, address and birth date. The recorded information was retained by the United States Marshal for use in determin- ing whether the bearer had a criminal background or any connection with a defendant on trial, such as might indicate a courtroom security risk. On the second day of trial the district court ratified the

spectator screening procedure over appellants’ objections.

Appellants contend on appeal that the screen- ing procedure violated their Sixth Amendment right to a public trial. . . .

The Sixth Amendment right to a public trial enures to the benefit of the criminal justice system itself as well as the defendant, by enhancing due process, encouraging witnesses to come forward, and enabling the public at large to confirm that the accused are dealt with fairly and that the trial parti- cipants properly perform their respective functions. Due to the important individual rights and public interests at stake, an alleged violation of the Sixth Amendment right to a public trial resulting from a “total” closure is not subject to “harmless error” analysis. Nevertheless, the Sixth Amendment right to a public trial is not absolute and must on occa- sion yield to competing interests in the fair and ef- ficient administration of justice.

The government initially urges, as a matter of law, that the Sixth Amendment right to a public trial was never implicated in the present case be- cause the challenged screening procedure effected neither a total nor a partial closure. According to the government, a “closure” occurs only if the trial court unconditionally excludes persons from the courtroom, but not if it simply imposes universal preconditions on courtroom access which have the incidental effect of barring only those persons who elect not to comply. To cite an obvious example, magnetometer screenings are designed to prevent armed spectators from entering the courtroom, yet no one would suggest that conditioning spec- tator access on submission to reasonable security screening procedures for dangerous weapons vio- lates the Sixth Amendment right to a public trial. Furthermore, the government correctly notes, no authority squarely holds that such “universal” pre- conditions to courtroom access constitute a Sixth Amendment “closure.” Cf. Brazel, 102 F.3d at 1155

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(assuming, arguendo, that similar identification procedure amounted to “partial” closure). We need not opt for the broad rule urged by the government, however, since the security screening procedure utilized below amounted at most to a permissible “partial” closure.

Although we have yet to rule on the matter, cf. Martin v. Bissonette, 118 F.3d 871, 874 (1st Cir. 1997), several other courts of appeals have held that the Sixth Amendment test laid down in Waller, 467 U.S. at 48, need be less stringent in the “partial” closure context; that is to say, a “substantial reason,” rather than an “overriding interest,” may warrant a closure which ensures at least some public access. These courts essentially conclude that a less stringent standard is warranted in the “partial” closure con- text provided the essential purposes of the “public trial” guarantee are served and the constitutional rights of defendants are adequately protected. As yet, no court of appeals has held otherwise.

Unlike the “total” closure in Waller, 467 U.S. at 42, which excluded all persons (other than court personnel, witnesses, parties and trial counsel) throughout the entire suppression hearing, the screening and identification procedure employed below effected at most a “partial” closure, as it (1) barred only those would-be spectators who opted not to submit written identification, and (2) presum- ably may have “chilled” attendance by some poten- tial spectators who opted not to present themselves at the courthouse. Cf. Woods, 977 F.2d at 74 (finding “partial” closure where members of defendant’s family were excluded while particular witness tes- tified). Moreover, the district court supportably found that members of the general public, as well as members of the defendants’ families, attended throughout the seven-day trial, as did credentialed representatives of the print and electronic media, see Douglas v. Wainwright, 714 F.2d 1532, 1541

(11th Cir. 1983) (noting that media presence and cov- erage renders court order one for “partial” closure rather than total, by increasing the likelihood that witnesses with material evidence who are unknown to the parties may learn of perjured testimony through media reports even though they themselves do not attend the trial), vacated and remanded. . . .

Relying on the requirement that a closure be “no broader than necessary” to promote the as- serted justification, Waller, 467 U.S. at 48, appel- lants suggest, alternatively, that (1) the anonymous empanelment and partial sequestration adequately addressed any legitimate security concerns, see supra Section II.A, or (2) the court could have re- sorted to less restrictive security measures, such as installing magnetometers immediately outside the courtroom. In addressing these contentions, we note at the outset that since the spectator-screening procedure resulted at most in a “partial” closure, the government was not required to establish that it furthered a “compelling” interest but simply a “sub- stantial” one. See, e.g., Osborne, 68 F.3d at 98–99.

Although anonymous empanelment and partial sequestration may afford jurors significant protec- tions beyond the confines of the courtroom, pro- phylactic procedures of an entirely different nature may be required to safeguard against attempts to intimidate jurors and witnesses in the performance of their courtroom responsibilities. These difficult judgments are matters of courtroom governance which require “a sensitive appraisal of the climate surrounding a trial and a prediction as to the po- tential security or publicity problems that may arise during the proceedings[.]” Thus, in our view an appellate court should be hesitant to displace a trial court’s judgment call in such circumstances. (“The trial court’s choice of courtroom security procedures requires a subtle reading of the im- mediate atmosphere and a prediction of potential

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risks–-judgments nearly impossible for appellate courts to second-guess after the fact.”); see also United States v. Brooks, 125 F.3d 484, 502 (7th Cir. 1997) (“The decisions of a district court concerning security in the courtroom are reviewed deferen- tially.”); Elledge v. Dugger, 823 F.2d 1439, 1456 (11th Cir. 1987) (“We generally defer to a trial court’s dis- cretion in courtroom-security decisions.”); cf. In re San Juan Star Co., 662 F.2d 108, 117 (1st Cir. 1981) (noting that appellate court “must defer to the [dis- trict] court’s . . . close familiarity with the nature of the [trial] publicity involved”).

As the Eleventh Circuit acknowledged recently in relation to another spectator-screening pro- cedure, given their many coincident duties trial judges cannot be expected to scan their courtrooms efficiently on a continuous basis for spectators whose very demeanor might represent an attempt to intimidate a witness or juror. See Brazel, 102 F.3d at 1155 (addressing “fixed stares” directed at wit- nesses by courtroom spectators). Similarly, in the circumstances presented here we cannot agree that prudent identification procedures suitably focused at deterring would-be trial spectators who may pose unacceptable risks—either to the security of the courtroom or the integrity of the factfinding process—need be held in abeyance pending evi- dence of an actual attempt to influence or harm a witness or juror in the case on trial. Therefore, though we cannot endorse the unilateral action by the United States Marshal, we hold that it did not strip away the substantial deference due the district court’s subsequent assessment that the screening procedures were warranted.

These appellants either were directly associ- ated with prior efforts to obstruct fair factfinding through untruthful trial testimony, or were found to possess the present means as well as ample induce- ment (viz., avoidance of potential life sentences) to

sponsor similar efforts in the case at bar, see supra Section II.A. Moreover, the challenged spectator- screening procedure was reasonably designed to respond to these concerns, as it plainly alerted would-be spectators that their courtroom conduct would be closely monitored, thereby efficiently focusing the desired deterrent effect principally upon those most likely to impede a fair and orderly trial—particularly appellants’ criminal associates. Thus, the challenged screening procedure repre- sented a permissible response to defendants’ dem- onstrated capacity and motivation to undermine the administration of justice at their trial.

Finally, as the district court supportably found, their extensive criminal histories (not to mention the violent criminal activity alleged in the pending indictment) generated realistic concerns that appel- lants might circumvent normal courtroom security procedures, as by attempting to coerce or bribe authorized personnel to facilitate the introduction of weapons into the courtroom or elsewhere in the courthouse.

In our view, therefore, the district court order ratifying these screening procedures adequately addressed and significantly minimized the demon- strated potential for harassment and intimidation of jurors and witnesses by would-be trial specta- tors, for many of the same reasons that warranted the anonymous empanelment and partial jury se- questration. See supra Section II.A. Although any courtroom closure represents a serious undertak- ing which ought never be initiated without prior judicial authorization, we conclude that the partial closure in this case did not contravene the Sixth Amendment, given the strong circumstantial and historical evidence that precautionary security measures were well warranted and the essential constitutional guarantees of a public trial were preserved.

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The Right to Confrontation and Cross-Examination The Sixth Amendment also contains a right to confront one’s accusers. This means that a defendant has the right to cross-examine the witnesses of the prosecution. Each state drafts its own rules of evidence; however, it may not enact a rule of evidence that conflicts with a defendant’s right to confrontation.

For example, a state procedure permitting government witnesses to refuse to iden- tify themselves was found violative of the Sixth Amendment.5 The Supreme Court reasoned that the procedure was invalid because it did not permit the defendant to conduct his or her own investigation into the credibility of government witnesses.

Statutes allowing victims to testify remotely, such as by closed-circuit televi- sion, also raise confrontation issues. However, the Supreme Court has stated that the Confrontation Clause does not per se prohibit child witnesses in child abuse cases from testifying outside the defendant’s physical presence by one-way closed-circuit televi- sion. Before such a procedure is used, however, the court must examine the facts of the case and determine that remote testimony is necessary.6 Failure to make such a finding (e.g., the child fears the defendant) can lead to reversal.7

The Confrontation Clause does not give defendants carte blanche to probe any area on cross-examination. If a state can show a compelling reason, it may prohibit cross-examination of a subject. For example, rape shield laws prohibit defendants from inquiring into a rape victim’s sexual background in most cases. Courts have affirmed such laws, finding that the protection of the rape victims from unwarranted personal attacks is a legitimate reason to limit defense cross-examination.

The Confrontation Clause also restricts the government’s use of hearsay evidence. Hearsay is a statement made by a person out of court that is intended to prove the mat- ter asserted. To prove the matter asserted means, in plain language, that the out of court statement must prove, or support, the matter fact that the attorney is trying to make. For example, in a trial of Samuel for murder, it is hearsay for him to testify that a third person, Ambrose, told him that he observed Samuel commit the murder because the purpose of the testimony is to prove the matter asserted, e.g. Samuel committed the murder. The prosecutor in this instance must find and call Ambrose to testify.

There are exceptions to the hearsay rule, and hearsay is commonly admitted in civil trials. However, the Confrontation Clause limits the admissibility of hearsay in criminal trials. To be admissible, it must be shown that the (1) witness is unavailable at trial and (2) the defendant had a prior opportunity to examine the witness. This standard was announced by the Court in Crawford v. Washington, a case where a wife’s statement to police that incriminated her husband had committed a crime was deter- mined to be inadmissible because she was unavailable at trial to the prosecutor because of the marital privilege. The Court limited its Confrontation Clause protection to hearsay—evidence that is introduced to prove the matter asserted. Since the matter at hand in Crawford was intended to prove the guilt of the husband, the wife’s incriminat- ing statements to the police were excluded. As you will learn in a moment, the excep- tion for non-testimonial statements will prove significant in a later case.8

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The Confrontation Clause implicitly includes a right of a defendant to be at the trial. This right includes the entire trial, from selection of the jury to return of the verdict. It also includes many pretrial matters, such as suppression hearings. Of course, defendants have a right to be present at both sentencing and probation revocation hearings. Although the right to be present during one’s trial is fundamental, it may be lost by disruptive behavior.

There is a long and widely accepted exception to evidence and Confrontation Clause rules that permits purely scientific evidence to be admitted through a report. Unless a defendant had evidence to challenge the validity of such a test, courts in most states and in the federal system admit scientific reports without requiring the scientist or lab attendant to testify. The Supreme Court appeared to have altered this long- standing practice in two cases, Melendez-Diaz and Bullcoming.

Note that a strongly worded dissent by four justices criticized the majority for setting aside over two hundred years of evidentiary law that permitted the admission of scientific testing through authenticated reports, citing the concern that the require- ment of having analysts testify in all cases where scientific reports are introduced will be burdensome, expensive, and often difficult to implement.

The Massachusetts courts in this case admitted into evidence affidavits reporting the results of fo- rensic analysis which showed that material seized by the police and connected to the defendant was cocaine. The question presented is whether those affidavits are “testimonial,” rendering the affiants “witnesses” subject to the defendant’s right of con- frontation under the Sixth Amendment.

In 2001, Boston police officers received a tip that a Kmart employee, Thomas Wright, was engag- ing in suspicious activity. The informant reported that Wright repeatedly received phone calls at work, after each of which he would be picked up in front of the store by a blue sedan, and would return to the store a short time later. The police set up sur- veillance in the Kmart parking lot and witnessed this precise sequence of events. When Wright got out of the car upon his return, one of the officers detained and searched him, finding four clear white plastic bags containing a substance resembling

cocaine. The officer then signaled other officers on the scene to arrest the two men in the car—one of whom was petitioner Luis Melendez-Diaz. The offi- cers placed all three men in a police cruiser. Dur- ing the short drive to the police station, the officers observed their passengers fidgeting and making furtive movements in the back of the car. After de- positing the men at the station, they searched the police cruiser and found a plastic bag containing 19 smaller plastic bags hidden in the partition between the front and back seats. They submitted the seized evidence to a state laboratory required by law to conduct chemical analysis upon police request.

Melendez-Diaz was charged with distributing cocaine and with trafficking in cocaine in an amount between 14 and 28 grams. At trial, the prosecution placed into evidence the bags seized from Wright and from the police cruiser. It also submitted three “cer- tificates of analysis” showing the results of the foren- sic analysis performed on the seized substances. The

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In spite of the strongly worded dissent, the Court reaffirmed Melendez-Dias in the 2011 case Bullcoming v. New Mexico, where the use of a surrogate lab technician who testified on behalf of the technician who conducted a blood alcohol test was invalidated by the Court as contrary to the Confrontation Clause. The Court found that the ana- lyst who conducted the test had to testify at trial or be available pretrial to testify and be subjected to cross-examination by the defendant.9

certificates reported the weight of the seized bags and stated that the bags “[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine.” The certificates were sworn to before a notary public by analysts at the State Labo- ratory Institute of the Massachusetts Department of Public Health, as required under Massachusetts law.

Petitioner objected to the admission of the certificates, asserting that our Confrontation Clause decision in Crawford v. Washington, 541 U.S. 36 (2004), required the analysts to testify in person. [the objection was overruled and the defendant was convicted.] . . .

There is little doubt that the documents at issue in this case fall within the “core class of testimonial statements” . . . The “certificates” are functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination. . . .

In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to “ ‘be confronted with’ ” the analysts at trial. . . .

Respondent claims that there is a difference, for Confrontation Clause purposes, between testi- mony recounting historical events, which is “prone to distortion or manipulation,” and the testimony at issue here, which is the “resul[t] of neutral, scientific testing. . . . Nor is it evident that what respondent

calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipula- tion. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” And “[b]ecause forensic scientists often are driven in their work by a need to answer a par- ticular question related to the issues of a particular case, they sometimes face pressure to sacrifice ap- propriate methodology for the sake of expediency.” A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a man- ner favorable to the prosecution.

Confrontation is one means of assuring accu- rate forensic analysis. . . .

Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One com- mentator asserts that “[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics.” . . .

The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of- court affidavits, and the admission of such evidence against Melendez-Diaz was error.

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What appeared to be clear and settled law was dealt a confusing blow in 2012. In a 5-4 decision with no one rationale commanding a majority of justices, the Court decided in Williams v. Illinois10 that the testimony of a forensic DNA expert who testi- fied that the DNA of semen taken from a vaginal swab of a rape victim and analyzed at a private lab, Cellmark, which matched the defendant, was admissible. This expert did not conduct the testing and most likely had never been in the Cellmark lab.

Because the justices were divided, it is difficult to identify exactly how they distin- guished the case from Crawford, Melendez-Diaz, and Bullcomings. But a few ideas can be extracted from the opinions. First, the testing occurred before the defendant had been identified as a suspect. The DNA profile had been built in order to identify an un- known rapist. Accordingly, the profile was not aimed at the defendant. Accordingly, the important purpose of enabling defendants to cross-examine witnesses “against them” would not have been satisfied by prohibiting the expert’s testimony.

Second, the expert’s statements were not hearsay. She didn’t testify to prove the matter asserted—that is, she didn’t testify as to the testing or the contents of the testing report. The Court summarized the expert’s testimony as such:

In order to assess petitioner’s Confrontation Clause argument, it is helpful to inventory exactly what Lambatos said on the stand about Cellmark. She testified to the truth of the following matters: Cellmark was an accredited lab; the ISP occasionally sent foren- sic samples to Cellmark for DNA testing; according to shipping manifests admitted into evidence, the ISP lab sent vaginal swabs taken from the victim to Cellmark and later received those swabs back from Cellmark; and, finally, the Cellmark DNA profile matched a profile produced by the ISP lab from a sample of petitioner’s blood. Lamba- tos had personal knowledge of all of these matters, and therefore none of this testimony infringed petitioner’s confrontation right.

Third, the case was tried before a judge. The law assumes that judges have a better understanding of the law and are better at categorizing evidence and not considering it for purposes beyond what is permitted than jurors. In this case the expert’s testimony was not admitted to prove that the quality of the testing and the judge is presumed to have not considered it for such purposes. Whether the decision would have been different if the case had been tried before a jury is unclear. But it easy to imagine that many jurors would interpret the testimony as proving the guilt of the defendant. The full impact of this decision will be revealed in the years to come.

The Presumption of Innocence/Burden of Proof One of the most basic rights underlying the right to a fair trial is the presumption of innocence. All those accused must be proven guilty by the government. Criminal defendants have no duty to defend themselves and may remain silent throughout the trial. In fact, the government is prohibited from calling defendants to testify, and defen- dants cannot be made to decide whether they will testify at the start of the trial.11 The fact that a defendant chooses not to testify may not be mentioned by the prosecutor to the jury. Defendants may testify in their own behalf. If so, they are subject to full

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