CONFESSIONS .............................................................................................. 1 §10-1 Fifth Amendment Rights .......................................................................... 1 §10-2 Suppression Motions and Hearings ..................................................... 12 §10-3 Miranda Warnings ................................................................................... 17 §10-3(a) Generally ......................................................................................... 17 §10-3(b) Non-Police Interrogation ............................................................. 26 §10-3(c) “In custody” .................................................................................... 28 §10-3(d) “Interrogation” ............................................................................... 49 §10-4 Waiver of Rights ....................................................................................... 53 §10-4(a) Generally ......................................................................................... 53 §10-4(b) Interrogation After the Right to Counsel Attaches ............... 62 §10-4(c) Interrogation After Request for Counsel ................................. 68 §10-4(d) Interrogation After Request to Remain Silent ....................... 82 §10-5 Voluntariness ............................................................................................ 89 §10-5(a) Generally ......................................................................................... 89 §10-5(b) Examples: Voluntary Statements ............................................. 102 §10-5(c) Examples Involuntary Statements .......................................... 109 §10-5(c)(1) Examples: Involuntary Statements by Adults ............ 109 §10-5(c)(2) Examples: Involuntary Statements by Minors ........... 118 §10-6 Statements After Unlawful Arrest ...................................................... 127 §10-6(a) Generally ....................................................................................... 127 §10-6(b) Examples: Attenuation Sufficient ............................................ 131 §10-6(c) Examples: Attenuation Insufficient ........................................ 133 §10-7 Impeachment with Inadmissible Statements .................................. 142 i §10-8 Use of Defendant’s Silence and Failure to Testify .......................... 144 §10-8(a) Defendant’s Silence ..................................................................... 144 §10-8(b) Defendant’s Failure to Testify .................................................. 155 §10-9 Use of Defendant’s Prior Testimony and Plea Discussion Statements .................................................................................................... 156 §10-10 Use of Codefendants’ Statements .................................................. 159 §10-11 Statements Made During Mental Examinations ........................ 166 ii CONFESSIONS §10-1 Fifth Amendment Rights United States Supreme Court Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006) Under the Vienna Convention on Consular Relations, a person detained by authorities in a foreign country must be advised of his right to have his nation's consular office informed of the arrest. Suppression of statements which an arrestee makes in response to police interrogation is not an appropriate remedy for the failure to inform the arrestee of his rights under the Convention. Hiibel v. Sixth Judicial Circuit Court of Nevada Humbold County, 542 U.S. 177, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) Neither the Fourth nor Fifth Amendments are violated by a state statute obligating a citizen to disclose his name during a Terry stop. Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) Fifth Amendment is violated where a statement that was compelled by police interrogation is used against defendant in a criminal proceeding. Where defendant was interrogated without Miranda warnings and while he was being treated for gunshot wounds, but no criminal charges were filed, the Fifth Amendment was not violated. Because the officer did not violate the Fifth Amendment, he was entitled to claim "qualified immunity" in a civil suit seeking damages for the alleged violation. Also, the Fourteenth Amendment due process clause was not violated by the officer's actions. The Fourteenth Amendment prohibits convictions based on evidence obtained by methods that are "so brutal and so offensive to human dignity" as to shock the conscience, or which involve "the most egregious official conduct." Questioning a suspect while he is being treated for gunshot wounds does not reach the level of egregiousness required for a Fourteenth Amendment violation. McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) Defendant, a convicted sex offender who was completing his sentence, was ordered to participate in a pre-release treatment program for sex offenders. Participants in the program were required to sign a form accepting responsibility for their crimes and complete a sexual history form detailing prior sexual activities, including uncharged offenses. Polygraph examinations were used to verify the accuracy and completeness of the answers. Immunity was not offered, although no inmate had ever been prosecuted based upon information disclosed through the program. Staff members are required to disclose to law enforcement authorities any statements concerning uncharged sexual offenses involving minors. Defendant refused to participate in the program, claiming that the required disclosures would violate his right against self-incrimination and possibly subject him to a perjury charge in light of his trial testimony that the activity had been consensual. Prison officials responded that unless defendant participated, his privileges would be reduced and he would be transferred to a maximum security institution. Defendant filed for injunctive relief to prevent such sanctions. 1 Revocation of privileges and transfer to a less advantageous institution did not violate the Fifth Amendment. Ohio v. Reiner, 532 U.S. 17, 121 S.Ct. 1252, 149 L.Ed.2d 158 (2001) The Fifth Amendment right against self-incrimination applies to witnesses who have "reasonable cause to apprehend danger" from answering a particular question. The Ohio Supreme Court erred by holding that the privilege is unavailable where a witness claims to be innocent of any wrongdoing. See also, People v. Dmitriyev, 302 Ill.App.3d 814, 707 N.E.2d 121 (1st Dist. 1998) (a witness may exercise his right against self-incrimination if he reasonably suspects that by answering he will expose himself to prosecution; a witness's attempt to exercise his privilege may be denied only where it is "perfectly clear, considering all the circumstances, that the answer sought cannot have a tendency to incriminate"); People v. McNeal, 301 Ill.App.3d 889, 704 N.E.2d 793 (1st Dist. 1998) (trial court erred by holding defendant in contempt for refusing to testify at a trial on charges which the defense claimed were related to charges pending against him but which the State claimed were unrelated; the defense's assertions showed reasonable cause to fear that defendant's answers might be incriminating at his subsequent trial). U.S. v. Hubbell, 530 U.S. 27, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) The Fifth Amendment protects against compelled disclosure of incriminating statements that are "testimonial." A suspect may be required to engage in non-testimonial conduct, such as putting on a particular shirt or making a voice exemplar, even if incriminating evidence results. Similarly, a suspect may be required to produce documents which contain "incriminating assertions of fact or belief," so long as the "creation of those documents was not ‘compelled' within the meaning of the privilege." Apart from whether the contents of the documents are privileged, however, the act of production may have "testimonial" aspects that are protected by the Fifth Amendment. In addition, the Fifth Amendment protects against the prosecution's use of compelled statements to discover incriminating evidence. Where defendant received immunity under a federal statute that has been held to be "coextensive" with the Fifth Amendment, and thereafter produced 13,000 pages of documents in response to a subpoena duces tecum, he could not be prosecuted on charges related to matters disclosed in the documents unless the prosecution proved that its evidence "was derived from legitimate sources ‘wholly independent' of the testimonial aspect of respondent's immunized conduct in assembling and producing the documents described in the subpoena." Mitchell v. U.S., 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) The fact that defendant pleads guilty does not waive Fifth Amendment rights at sentencing, even as to the facts of the crime to which the plea was entered. See also, People v. Iseminger, 202 Ill.App.3d 581, 560 N.E.2d 445 (4th Dist. 1990)(a trial judge may properly make inquiries of defendant at sentencing hearing, regardless whether he testifies or exercises his right of allocution; where a Fifth Amendment claim is raised, however, the trial judge should conduct a hearing); People v. Anderson, 284 Ill.App.3d 708, 672 N.E.2d 1314 (4th Dist. 1996)("[A] defendant has no right to refuse to answer the trial court's questions at the sentencing hearing except - perhaps - when fifth amendment concerns are legitimately implicated.") Ohio Adult Parole Authority v. Woodard,