Walker Hearings A to Z

Walker Hearings
A to Z
Major Felony Recordings
MCL 763.8
• When police conduct an interrogation
in an effort to determine a person’s
involvement in a major felony, there
must be a time-stamped, audiovisual
recording of the entire interrogation.
• The video must include Miranda
warnings
• A copy of the video must be provided
to the defense pursuant to any
discovery request.
Failure to Record
• Failure on the part of the police to record
an interrogation under MCL 763.8 does
not prevent use of the statement in court.
MCL 763.9.
• Under such circumstances, “the jury shall
be instructed that it is the law of this state
to record statements of an individual in
custodial detention who is under
interrogation for a major felony and that
the jury may consider the absence of a
recording in evaluating the evidence
relating to the individual’s statement.” Id.
The Fifth Amendment
No person . . . shall be compelled in any
criminal case to be a witness against
himself. US Const. Amend. V.
Was Your Client Properly
Advised of Her Miranda Rights?
A suspect must be warned of the following
prior to being subjected to custodial
interrogation:
• She has the right to remain silent
• Anything she says can be used against her
in a court of law
• She has the right to the presence of an
attorney prior to and during any questioning
and
• If she cannot afford an attorney, one will be
appointed at no cost to her
Missouri v Seibert
• In Missouri v Seibert, the United States
Supreme Court addressed the constitutionality
of a “question first” policy employed by
police. Missouri v Seibert, 542 US 600, 604
(2004).
• The defendant in that case was interrogated
for forty minutes before police Mirandized her,
obtained her signature on a waiver form, and
resumed questioning. Id.
• The Court explained that neither of the
statements were admissible, as “the earlier
and later statements [were] realistically []
parts of a single, unwarned sequence of
questioning.” Id. at 612 n 4.
When Does Miranda
Apply?
• Miranda rights only attach once a person
is in custody and is subject to
interrogation
• Custodial interrogation is defined as
“questioning initiated by law
enforcement officers after a person has
been taken into custody or otherwise
deprived of his or her freedom of action
in any significant way.” Miranda v
Arizona, 384 US 436, 444 (1966).
Miranda Custody
• “To determine whether a defendant was in custody
at the time of the interrogation, we look at the
totality of the circumstances, with the key question
being whether the accused reasonably could have
believed that he was not free to leave . . . the
determination of custody depends on the objective
circumstances of the interrogation rather than the
subjective views harbored by either the
interrogating officers or the person being
questioned.” People v Zahn, 234 Mich App 438, 449
(1999).
• The temporary and relatively nonthreatening
detention involved in a traffic stop or Terry stop
does not constitute Miranda custody. Maryland v
Shatzer, 559 US 98, 113 (2010).
Did Your Client Properly Invoke Her
Right to Counsel under Miranda?
• Invocation of the right to counsel must be
unambiguous:
• The suspect “must articulate his desire to have
counsel present sufficiently clearly that a
reasonable police officer in the circumstances
would understand the statement to be a request for
an attorney. If the statement fails to meet the
requisite level of clarity, Edwards does not require
that the officers stop questioning the suspect.”
Davis v United States, 512 US 452, 459 (1994) (holding
“maybe I should talk to a lawyer” was too
ambiguous to properly invoke right to Miranda
counsel).
Did Your Client Properly Invoke Her
Right to Silence under Miranda?
• An invocation of the right to
remain silent must be
unambiguous. Berghuis v
Thompkins, 560 US 370, 388-89
(2010).
• Simply remaining silent is not
sufficient to invoke the right. Id.
Effect of Invoking the
Right to Silence
• “[T]he admissibility of statements obtained
after the person in custody has decided to
remain silent depends under Miranda on
whether his right to cut off questioning was
scrupulously honored.” Michigan v Mosley,
423 US 96, 104 (1975).
• “[T]he prosecutor may not . . . refer to [a]
defendant’s postarrest, post‐Miranda silence
with the police[.]” People v Clary, 494 Mich
260, 271‐272 (2013) (citing Doyle v Ohio, 426
US 610, 618‐619 (1976).
Effect of Invoking the Right to
Counsel
• When the right to counsel is invoked, all
questioning must stop until the suspect is
represented by counsel. Edwards v Arizona, 451
US 477, 484-85 (1981). Under Edwards, any
subsequent waiver of the right to counsel is
presumed invalid.
• This presumption does not apply to situations
where there has been a 14 day break in custody
prior to reinterrogation by the police, as “that
provides plenty of time for the suspect to get
reacclimated to his normal life, to consult with
friends and counsel, and to shake off any residual
coercive effects of his prior custody. Maryland v
Shatzer, 559 US 98, 110 (2010).
Reinitiation
• An interrogation can be resumed despite a
valid invocation of Miranda Rights if:
o The suspect is the person reinitiating
communication with the police. People v
Bishop, 117 Mich App 553 (1982).
o There has been a break in custody lasting
at least 14 days, as this amount of time
“provides plenty of time for the suspect to
get reacclimated to his [or her] normal
life, to consult with friends and counsel,
and to shake off any residual coercive
effects of his prior custody.” Maryland v
Shatzer, 559 US 98, 110 (2010).
Interrogation
• Interrogation involves questioning
or its functional equivalent which
includes “any words or actions on
the part of the police (other than
those normally attendant to arrest
and custody) that the police
should know are reasonably likely
to elicit an incriminating response
from the suspect.” Rhode Island v
Innis, 446 US 291, 301 (1980).
Rhode Island v Innis
• A conversation between officers
transporting a suspect was not an
interrogation where one officer stated
“there's a lot of handicapped children
running around in this area, and God forbid
one of them might find a weapon with shells
and they might hurt themselves“ was not an
interrogation. Rhode Island v Innis, 446 US
291, 294-95 (1980)
• The Court reasoned that it was not
established that the officer “should have
known [his comments] were reasonably
likely to elicit an incriminating response.” Id.
at 303.
People v White
• The Michigan Supreme Court held that the
following conversation did not constitute an
interrogation and even though the suspect had
already invoked his right to counsel, his
subsequent statements were admissible:
• “[Officer]: The only thing I can tell you . . . is
good luck man. . . . The only thing that I can tell
you is this, and I'm not asking you questions, I'm
just telling you. I hope that the gun is in a place
where nobody can get a hold of it and nobody
else can get hurt by it . . .
• [Defendant]: I didn't even mean for it to
happen like that. It was a complete accident.”
People v White, 493 Mich 187, 191-92; 828 NW2d
329 (2013).
Was the Statement
Voluntarily Made?
• For a confession to be voluntary, it “must
have been . . . the product of a free and
deliberate choice rather than
intimidation, coercion or deception[.]”
People v Ryan (Sean), 295 Mich App 388,
397 (2012).
• The same analysis is used to determine
both whether a statement is voluntary
under the due process clause and
whether the waiver of Miranda rights was
voluntary. Id.
Cipriano Factors
In determining whether a statement is voluntary, the trial court
should consider:
o the age of the accused;
o his lack of education or his intelligence level;
o the extent of his previous experience with the police;
o the repeated and prolonged nature of the questioning;
o the length of the detention of the accused before he gave the
statement in question;
o the lack of any advice to the accused of his constitutional rights;
o whether there was an unnecessary delay in bringing him before a
magistrate before he gave the confession;
o whether the accused was injured, intoxicated or drugged, or in ill
health when he gave the statement;
o whether the accused was deprived of food, sleep, or medical
attention;
o whether the accused was physically abused;
o and whether the suspect was threatened with abuse.
People v Cipriano, 431 Mich 315, 334 (1988).
•
People v DeLisle
• In DeLisle, the Court of Appeals held the
defendant’s statement to police was properly
suppressed, reasoning that
o The length of detention suggested the
statement was involuntary
o The defendant’s emotional state was very poor
o The defendant was promised leniency in
exchange for his confession
o The defendant had a 10th grade education
o The defendant had no prior experience with
the criminal justice system
People v DeLisle, 183 Mich App 713, 719-20; 455
NW2d 401 (1990).
Promises
• “[A] statement induced by a law
enforcement official’s promise of
leniency is involuntary and inadmissible, if
there was a promise of leniency and that
promise caused the defendant to
confess.” People v Conte, 421 Mich 704,
712 (1984).
• The defendant must have understood the
officer’s statements as promises of
leniency and relied on them in making
inculpatory statements in order for the
statement to be considered involuntary.
Id.
Threats
• Threats by police often are viewed by courts as
a form of psychological coercion. People v
Richter, 54 Mich App 598, 604; 221 NW2d 429
(1974).
• In a case where police threatened to take the
suspect‘s children away unless she
cooperated, the United States Supreme Court
explained, "a confession made under such
circumstances must be deemed not voluntary,
but coerced. . . . [T]he question in each case is
whether the defendant's will was overborne at
the time he confessed. If so, the confession
cannot be deemed the product of a rational
intellect and a free will." Lynumn v Illinois, 372 US
528, 534 (1963).
Did Your Client Knowingly and
Voluntarily Waive Her Miranda rights?
• “The prosecutor must show by a preponderance
of the evidence that the defendant knowingly,
intelligently, and voluntarily waived his Fifth
Amendment right.” People v Tierney, 266 Mich
App 687, 707 (2005) (citing People v Daoud, 462
Mich 621, 634 (2000)).
• “While advanced intoxication from drugs or
alcohol may preclude an effective waiver of
Miranda rights, the fact that a person was
narcotized or under the influence of drugs is not
dispositive of the issue of voluntariness.” People v
Leighty, 161 Mich App 565, 571 (1987).
Moran v Burbine
• The Supreme Court held that waiver was
knowing and voluntary in a case where the
suspect’s retained counsel informed the police
of the representation. police intended to place
him in a lineup or question him. Moran v
Burbine, 475 US 412, 417 (1986).
• The Supreme Court stated that the failure to
inform the suspect of the fact that an attorney
had been retained for him had no bearing on
the validity of his Miranda waiver. Id.
• The fact that police reassured the attorney that
the suspect would not be subject to questioning
was also not relevant to whether the waiver
was valid. Id.
Did Your Client
Understand Her Rights?
• “A confession is validly suppressed
where the police exploit an apparent
mental deficiency in the defendant, or
where a defendant's level of cognitive
understanding is so low that the police
knew or should have known that the
person is not capable of
understanding.” People v Cheatham,
453 Mich 1, 21 n.18; 551 NW2d 355
(1996).
Competency to Waive Miranda
• “To establish a valid waiver of Miranda rights, the
prosecution need only present evidence sufficient
to demonstrate that the accused understood that
he did not have to speak, that he had the right to
the presence of counsel, and that the state could
use what he said in a later trial against him.” People
v Abraham (In re Abraham), 234 Mich App 640, 647;
599 NW2d 736 (1999).
• “An accused need not fully appreciate the
ramifications of talking to the police[.]” Id.
• “Lack of foresight is insufficient to render an
otherwise proper waiver invalid.” Id.
• “A suspect's awareness of all the possible subjects
of questioning . . . is not relevant to determining
whether the suspect [validly] waived his Fifth
Amendment privilege.” Id.
Filing the Motion
• Keep your motion brief and simple
• Allege that the statement was not
freely and voluntarily made
• Prepare your client
• Make sure he understands the
purpose of the hearing
Testimony at the Hearing
• The prosecutor will have the interrogating officer
testify in an effort to establish:
o The Miranda waiver form was signed
o No threats or promises were made
o The defendant freely and voluntarily confessed
o Rights were not invoked
o The defendant was not deprived of food, water
or sleep
• The defendant will likely need to testify
o The prosecutor may only ask questions relating to
the circumstances of the interrogation
o No questions can be asked about the
defendant’s involvement with the allegations
underlying the charges against your client
Statements Obtained as Fruits of
a Fourth Amendment Violation
• In addition to due process and Miranda
violations, statements obtained as a result of a
Fourth Amendment violation must also be
suppressed. Kaupp v Texas, 538 US 626 (2003).
• Statements obtained pursuant to unlawful
arrests must be suppressed. People v Mosley
(Richard), 400 Mich 181, 183 (1977).
• To determine whether the illegal arrest caused
the confession, courts should consider the
following factors:
o
o
o
o
the time between the illegal arrest and confession
whether the official misconduct was flagrant
whether there were intervening circumstances, and
any events that occurred before the arrest. People v Mallory,
421 Mich 229, 243 n.8 (1984).
Kaupp v Texas
• The defendant, who was 17 years old, was awakened
by six police officers at 3:00 a.m. while asleep in his
bedroom at his father’s house. Kaupp v Texas, 538 US
626, 628 (2003).
• After a failed attempt to obtain a warrant for his
arrest, the officers went to the house to confront him
about his involvement in a homicide they were
investigating. Id.
• The boy was taken into custody and removed from
the house wearing only boxer shorts and a T-shirt,
placed in the backseat of a patrol car, driven to the
scene of the crime, and interrogated by the officers
until he ultimately confessed. Id.
• The Court held that because the statement was the
fruit of an unlawful arrest, it had to be suppressed. Id.
at 633.
Suppressing a Statement the
Defendant Denies Making
• Where “a defendant claims that he involuntarily
signed a statement and that the statement was
fabricated by police, the trial court must hold a
Walker hearing prior to introduction of the
statement at trial. At the hearing the trial court must
determine, assuming the defendant made the
statement, whether he did so voluntarily.”
• “If it is found that the defendant voluntarily made
the statement, the defendant is free to argue to the
jury that the police fabricated it.”
• “However, if the trial court at the hearing finds the
statement was involuntarily made, the statement is
inadmissible, regardless of the defendant's claim
that he never actually made it.” People v Neal, 182
Mich App 368, 372; 451 NW2d 639 (1990).
Losing the Motion
• Even if the statement is not suppressed, circumstances
surrounding the statement can often be relevant to its
credibility at trial:
• “[T]he physical and psychological environment
that yielded the confession can also be of
substantial relevance to the ultimate factual issue
of the defendant's guilt or innocence. Confessions,
even those that have been found to be voluntary,
are not conclusive of guilt. And, as with any other
part of the prosecutor's case, a confession may be
shown to be "insufficiently corroborated or
otherwise . . . unworthy of belief." . . . [R]egardless
of whether the defendant marshaled the same
evidence earlier in support of an unsuccessful
motion to suppress, and entirely independent of
any question of voluntariness, a defendant's case
may stand or fall on his ability to convince the jury
that the manner in which the confession was
obtained casts doubt on its credibility.” Crane v
Kentucy, 476 US 683, 689 (1986)
Excluding Inadmissible
Statements at Preliminary
Exams
• MCR 6.110(D) provides that the magistrate
at a preliminary examination must exclude
inadmissible evidence:
o “If, during the preliminary examination, the court
determines that evidence being offered is
excludable, it must, on motion or objection,
exclude the evidence.” MCR 6.110(D)(2).

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