criminal procedure rules

8/8/2019 Criminal Procedure Rules

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y Look to characteristics of, Os actions, andalsothe waiver (ifwaiver, the more likely

conclusion will be voluntary).

Edward v. Arizona Ifrighttocounselinvoked

Rule: It has nothingtodo with whether the2nd waiver was voluntaryor ifthe confession

even was. Ifan accused, such as , having

expressed his desire todeal with the Os only

through counsel, is not subjecttofurther

interrogation by Os until counsel has been

made available to him, unless the accused

himselfinitiates further communication,exchanges, or conversations with the Os. Os

cant even see if has changed his mind.

anytime the gov., or agentthereofis

deliberatelyilicitinginformationfrom the .

Once the charges have come, andthe rights

(6th) have attached, the Os cannotdeliberately

tryto elicitinformationfrom you (unless you

waive it, or the s lawyer is present) (canttalk

tothe accused w/outtheir lawyer, once the

right attaches).

Differences between5th and6th:

y 5th: attaches when a custodial interrogationisimminent.

y6th

:attaches whenyou are indictedor

otherwise charged with a crime (movingfrom

being a suspectto beingthe accused.)

attachmentofthe right andinvocationofthe

right, the police CAN ask for a waiver because

you have notyetinvokedyour 6th right. (So

there can be a time period where your 5th and

6th Amends diverge (overlap), so a waiver of

your Miranda rights will be a waiver ofyour

5th and 6th Amend rights to counsel. (here

knew he was indicted when he waived).

Following indictment or arraignment (4) Categories

ofMassiah exist:

y (3) Involve Counsel Events 1)the canrequest counsel (Jackson), 2) Can be appointed

counsel (Brewer), or 3) can retain counsel

(Massiah)the 4th Categoryinvolves the

absence involves the absence ofa counsel

event the does not request andthe legal

system does not provide counsel (Patterson).

In all ofthese cases, s receive almost exactly

the same rights under Massiah as under

Miranda. Os maynot re-approach after a

counsel event, butinthe absence ofa counselevent, Os may secure a voluntary waiver.

McNeil v. Wisconsin a waythatMirandais more

protective thanMassiah

Rule: The 6th rightto counsel is offensespecific, the 5th is not. Whenyou invoke your

6th right, itis only aninvocationtothe crime

you have been charged with, notothers. Butif

you invoke your 5th rightto counsel, they cant

come back and ask you for a waiver as toany

crime. (So Os can ask for a Miranda waiver for

other crimes, justnotthe one you have

invokedthe 6th for).

Texas v. Cobb meaningofOffense Specific

Rule: The factual relationtest is rejectedforthe test as to whether the 6th invocation

covers the offense the waiver is soughtfor.

The testfor the same offense inthe 6th

contextis the same as the 5th double jeopardy

clause, calledthe Blockburgertest. This test

finds different statutoryoffenses to be the

same onlywhenthe elements ofone offense

are necessarilyincludedinthe elements ofthe

other offense. One wayto express this

principle is to saythatoffenses are the same

only when provingthe elements ofthe greater

will always prove the elements ofthe lesser.

(here, burglary and murder donot have the

same elements).

Ex)Manslaughter is a lesser includedoffense of

murder, soitis the same offense for double-

jeopardy purposes. By proving murder you provemanslaughter.

Ex) crimes that share some common elements, but

are not all the same:

y Crime 1) has elements: A, B, Cy Crime 2) has elements: B, C, D

As long as each crime has an elementnotincludedinthe other, thennodouble

jeopardy.

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