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It's the phrase everyone knows, 
maybe from a movie, maybe from a

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TV cop show. 
You've probably even practiced 

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it in the mirror getting ready 
for your crim pro exam. 

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You have the right to remain 
silent. 

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I. 
Think we've all done that? 

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But what does that, you know, 
that universal pop culture catch

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phrase actually mean when you're
dealing with the bedrock of 

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constitutional criminal law, 
right? 

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For any student, the doctor 
around confessions and police 

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questioning. 
I mean, it's not just theory. 

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It's where your legal analysis 
lives or dies on the page. 

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It absolutely is and look for 
anyone studying for the bar or 

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gearing up for finals, mastering
the landscape of confessions is 

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completely non negotiable. 
So. 

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That's what we're doing today. 
We are diving deep into probably

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the most litigated and 
definitely the most tested 

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doctrine in criminal procedure, 
focusing specifically on how the

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5th Amendment regulates that 
interrogation room. 

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OK, so let's unpack this right 
from the start. 

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Yeah, because the minute a 
prosecutor tries to introduce a 

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statement, a confession into 
evidence, you, the future 

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lawyer, you need to recognize 
that the statement is 

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immediately vulnerable, and it's
vulnerable to attack from three 

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distinct constitutional lanes. 
That's the critical starting 

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point. 
That's the framework for any 

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analysis. 
People think Miranda, but the 

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regulation of confessions It 
doesn't just rest on Miranda. 

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It falls into three very 
distinct, though sometimes 

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overlapping categories. 1st and 
historically the oldest, you 

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have the due process clauses. 
5th and 14th Amendment. 

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Exactly. 
And they demand that any 

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confession be voluntary. 
That's sort of the baseline, the

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reliability and fairness floor. 
OK, so that's lane one. 

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Lane one. 
OK, second, we have the modern 

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framework, the 5th Amendment 
self incrimination clause, which

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is what gives us the Miranda 
rule and all its required 

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warnings. 
The one everyone knows. 

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The one everyone knows. 
And finally, lane three, you 

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have the 6th Amendment 
assistance of counsel clause, 

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which uses a completely 
different trigger. 

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It's based on whether the right 
to counsel has attached. 

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So since we're really dedicating
this deep dive to that big 

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central 5th Amendment framework,
what's our mission today? 

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What do we want the listener to 
walk away with? 

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Our mission is to give you that 
exam ready analytical structure 

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for the 5th Amendment, and that 
means defining the dual trigger 

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custody and interrogation, 
detailing exactly what warnings 

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are required, and then 
dissecting the standards for a 

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valid waiver. 
And most critically. 

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Most critically isolating the 
key exceptions to the 

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exclusionary rule. 
These are the exceptions that 

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police and prosecutors use, and 
they are absolutely the ones 

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that professors love to test. 
So the goal is you walk away 

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with a clear structure, the key 
case holdings so you can 

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confidently analyze those, you 
know, those complex multi 

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layered fact patterns they love 
to throw at us. 

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So we have to start at the very 
beginning, right before Miranda 

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even existed. 
We have to. 

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Historically, the entire game 
revolved around due process and 

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this idea of voluntariness. 
The core rule here? 

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It sounds deceptive. 
Simple. 

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Only voluntary confessions are 
admissible. 

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Yes, and while it seems simple, 
the standard itself is highly 

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subjective. 
It depends entirely on the 

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totality of the circumstances. 
So. 

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What does that mean? 
Totality of the circumstances. 

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It means a statement is deemed 
involuntary if it results from 

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some kind of coercion or 
compulsion, whether that's 

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physical or psychological. 
That effectively over bears the 

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suspects will. 
It breaks their will. 

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It breaks their will. 
It undermines their desire to 

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remain silent. 
So it's really a two-part 

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inquiry. 
You're looking at the suspects 

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own characteristics, their age, 
education, mental state and 

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you're weighing that against the
details of the police pressure 

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being applied. 
Like the duration of the 

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questioning, any threats, 
deprivation of food or sleep. 

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All of it. 
And to really grasp why the 

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Supreme Court eventually felt 
the need for something as rigid 

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as Miranda, you have to go back.
You have to revisit the 

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historical backdrop, 
specifically the infamous case 

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of Brown V Mississippi. 
Yeah, this case is it's 

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essential context for 
understanding the whole 

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constitutional shift. 
Absolutely. 

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Brown V Mississippi is where the
Supreme Court really asserted 

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its authority. 
It stepped in to supervise state

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criminal justice systems and 
enforce this voluntariness 

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requirement. 
And the facts, I mean, the facts

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are brutal and they're 
undeniable. 

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These defendants were physically
tortured. 

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They were whipped. 
They were hung from trees until 

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they confessed. 
This was pure, unadulterated 

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physical compulsion. 
And the reason those confessions

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were barred was twofold, wasn't 
it? 

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It wasn't just that they were 
profoundly unfair. 

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Right. 
They're also inherently 

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unreliable. 
Of course, if you torture 

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someone, they'll say anything. 
Precisely so due process. 

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It protects both reliability and
fundamental fairness. 

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When you apply that kind of 
physical compulsion, the 

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resulting statement is probably 
false, so it's unreliable. 

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And the method itself, it just 
violates the basic premise of 

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justice required by the 14th 
Amendment. 

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So that case and others like it,
they showed that this 

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subjective, you know, case by 
case voluntariness test just 

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wasn't enough. 
It wasn't deterring widespread 

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police abuse. 
And that, ultimately, is what 

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paved the way for the creation 
of Miranda. 

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OK but that sounds like a long 
way from the modern non physical

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interrogation room. 
So if Miranda is usually the 

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first layer of analysis we apply
today, is due process 

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voluntariness still relevant? 
Why should a student spend time 

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on it? 
It is absolutely still relevant,

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and this is a critical 
distinction for your exam 

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analysis. 
It's a common mistake to just 

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jump to Miranda and forget this.
OK. 

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While Miranda is that 
prophylactic layer, due process 

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voluntariness remains an 
independent constitutional check

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against coerced statements. 
So if you find, based on the 

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totality of the circumstances, 
that the police compulsion was 

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so overwhelming it literally 
broke the suspects will, that 

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confession is deemed involuntary
under due process. 

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And what's the consequence of a 
due process violation compared 

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to, say, a Miranda violation 
this is? 

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Key The consequence is absolute.
If a confession is deemed 

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involuntary under due process, 
that statement is inadmissible 

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for all purposes. 
All purposes. 

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All purposes, no exceptions 
apply. 

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This is the ultimate 
constitutional safety net, and 

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actually coerced confession, 
whether it seems reliable or 

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not, cannot be used against the 
defendant in court. 

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Period. 
And that's a crucial distinction

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from the Miranda violations 
we're going to talk about, which

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have several exception. 
A world of difference. 

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So that distinction brings up a 
common modern technique, police 

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misrepresentation of evidence. 
We see it on TV all the time. 

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The cops tell a suspect their 
partner confessed or that their 

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DNA was found at the scene, even
if it wasn't true. 

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Does lying to a suspect about 
the evidence automatically make 

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a confession involuntary under 
due process? 

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No, and this is a really 
important area for nuanced 

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analysis. 
The Supreme Court and later 

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state courts have made it really
clear that police deception 

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about evidence is merely one 
factor to be considered in that 

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totality of the circumstances. 
Just one factor. 

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Just one. 
It does not automatically 

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establish involuntariness. 
So let's play this out. 

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The police lie about DNA 
evidence, but the suspect is, 

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say, an educated adult. 
The interrogation is short. 

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They aren't deprived of sleep or
food. 

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That confession might still be 
voluntary. 

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That's exactly right. 
The focus remains was the 

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suspects will actually overborn?
Did the coercion eliminate their

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rational capacity for choice? 
So the lie itself isn't enough. 

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If the police misrepresentation 
wasn't accompanied by other 

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extreme tactics like threats of 
physical violence, refusing 

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access to medication, or, you 
know, exploiting a known severe 

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vulnerability like a very low IQ
or extreme youth, the confession

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may still be deemed voluntary 
under due process. 

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It's the combination of factors 
that matters, not the single lie

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itself. 
OK, so having established that 

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due process sets that absolute 
floor for reliability and 

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fairness, we can now move to the
elephant in the room. 

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The big one. 
The Miranda rule. 

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The court created this entire 
structure of warnings as a 

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prophylactic shield against the 
very pressures we were just 

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talking about. 
Right Miranda V Arizona 1966. 

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It rooted its authority in the 
5th Amendment Self Incrimination

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Clause, which through the 14th 
Amendment, applies to state 

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proceedings. 
And the core finding. 

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The core finding was that 
custodial interrogation, and 

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that's questioning by police 
when the suspect is formally 

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arrested or otherwise deprived 
of their freedom in a 

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significant way. 
That situation contains 

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inherently compelling pressures.
Inherently compelling pressures.

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That's a phrase you need to 
underline in your notes. 

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What exactly did the court mean 
by that? 

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Well, they recognize that the 
dynamics of the interrogation 

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room itself were, by design, 
intended to break down a 

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person's resistance. 
You have isolation from the 

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outside world, separation from 
family or a lawyer, and the use 

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of, you know, sophisticated 
psychological tactics by trained

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interrogators. 
Out of level playing field. 

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Not at all. 
It creates a situation where 

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even without any physical 
coercion, A suspect may feel 

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compelled to speak. 
So the purpose of the Miranda 

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warnings, it's not to stop 
confessions entirely, but it's 

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to alleviate these pressures. 
To kind of rebalance the scale. 

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Exactly. 
The warnings are there to ensure

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the individual can exercise a 
free and informed judgement 

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while under suspicion. 
It gives them a meaningful 

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opportunity to exercise their 
5th Amendment privilege. 

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00:09:13,920 --> 00:09:17,240
OK, this brings us to probably 
the most crucial conceptual 

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point for exam mastery, the idea
that the Miranda rule is 

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prophylactic. 
It's a rule designed to protect 

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a right, but it is not the right
itself. 

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Exactly. 
You have to get this. 

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00:09:28,920 --> 00:09:33,560
The Miranda rule is a set of 
prophylactic rules that sweep 

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beyond the actual protections of
the self Incrimination clause 

200
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itself. 
What does that mean in practice?

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00:09:40,240 --> 00:09:43,600
It means that failing to give a 
Miranda warning is not a direct 

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00:09:43,600 --> 00:09:45,360
violation of the 5th Amendment. 
It's not. 

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00:09:45,400 --> 00:09:48,560
No. 
It's a violation of a procedure 

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that the Supreme Court mandated 
to protect the 5th Amendment. 

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00:09:52,120 --> 00:09:54,040
OK, why is that distinction so 
important? 

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00:09:54,040 --> 00:09:56,000
It sounds a little academic. 
Is everything. 

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00:09:56,320 --> 00:09:59,080
It's so important because it 
dictates the consequences and 

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00:09:59,080 --> 00:10:00,880
more importantly, the 
exceptions. 

209
00:10:01,480 --> 00:10:05,200
If the failure to warn were a 
direct constitutional violation,

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then any evidence that came from
it would be barred under the 

211
00:10:08,200 --> 00:10:10,320
fruit of the poisonous tree 
doctrine, just like a Fourth 

212
00:10:10,320 --> 00:10:11,720
Amendment violation. 
But it's not. 

213
00:10:12,400 --> 00:10:15,520
But since it's only a violation 
of a prophylactic rule, the 

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courts have been able to 
subsequently carve out several 

215
00:10:17,840 --> 00:10:21,080
big exceptions that allow 
evidence derived from unwarned 

216
00:10:21,080 --> 00:10:24,640
statements to be admitted. 
And we'll get into those United 

217
00:10:24,640 --> 00:10:27,280
States people saying is the 
prime example of the power of 

218
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this prophylactic 
classification. 

219
00:10:29,120 --> 00:10:33,000
OK, so to satisfy this 
prophylactic rule, what are the 

220
00:10:33,000 --> 00:10:36,480
four core safeguards? 
What has to be said before a 

221
00:10:36,480 --> 00:10:39,920
custodial interrogation begins? 
The police have to clearly 

222
00:10:39,920 --> 00:10:41,600
inform the suspect of four 
things. 

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One, the right to remain silent,
2 that anything said can and 

224
00:10:46,440 --> 00:10:50,360
will be used against the suspect
in court, 3 the right to consult

225
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with an attorney and have the 
attorney present during 

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questioning, and four, that if 
the suspect is indigent, a 

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00:10:56,320 --> 00:10:57,840
lawyer will be appointed for 
them. 

228
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And they have to be given 
clearly, unequivocally, 

229
00:11:00,000 --> 00:11:01,880
absolutely. 
So if the police failed to 

230
00:11:01,880 --> 00:11:04,920
provide these safeguards before 
questioning A suspect who is in 

231
00:11:04,920 --> 00:11:07,600
custody, what's the general 
consequence? 

232
00:11:07,600 --> 00:11:09,960
The general consequence is 
suppression of the statement. 

233
00:11:10,480 --> 00:11:13,320
Any incriminating statements, 
whether they're inculpatory like

234
00:11:13,320 --> 00:11:16,080
a full confession, or 
exculpatory, like a denial, that

235
00:11:16,080 --> 00:11:18,680
contains facts that later 
contradict the suspect's 

236
00:11:18,680 --> 00:11:20,320
defense. 
Which could be just as damaging.

237
00:11:20,400 --> 00:11:23,240
Often more damaging, those 
statements made during that 

238
00:11:23,240 --> 00:11:26,400
unwarned custodial interrogation
are generally inadmissible in 

239
00:11:26,400 --> 00:11:29,840
the prosecution's case in chief.
As we mentioned, this was a huge

240
00:11:29,840 --> 00:11:33,200
deal, a highly controversial 
decision, and that debate really

241
00:11:33,200 --> 00:11:36,400
hasn't ended. 
Justice Harlan, in his dissent, 

242
00:11:36,640 --> 00:11:40,040
famously argued the court went 
too far, too fast. 

243
00:11:40,040 --> 00:11:42,800
Yes, he said, it was forever 
adding new stories to the 

244
00:11:42,800 --> 00:11:46,800
temples of constitutional law 
and that policy debate about 

245
00:11:46,800 --> 00:11:49,480
whether Miranda unduly 
restricted legitimate law 

246
00:11:49,480 --> 00:11:52,000
enforcement. 
It just resurfaces constantly. 

247
00:11:52,280 --> 00:11:55,360
And linking that controversy to 
today, you mentioned the recent 

248
00:11:55,360 --> 00:11:58,240
case of Vega Viteco. 
This ruling really highlights 

249
00:11:58,240 --> 00:12:01,360
how the current court views the 
prophylactic nature of the rule.

250
00:12:01,360 --> 00:12:03,480
It really does. 
Explain the significance of that

251
00:12:03,480 --> 00:12:06,080
case for our listeners, 
especially for anyone concerned 

252
00:12:06,080 --> 00:12:09,200
with police accountability. 
So in Vega Viteco, which is just

253
00:12:09,200 --> 00:12:12,800
in 2022, the Supreme Court ruled
that police officers cannot be 

254
00:12:12,800 --> 00:12:16,880
sued under Section 1983, a 
specific federal statute, for 

255
00:12:16,880 --> 00:12:19,520
merely failing to administer the
Miranda warning. 

256
00:12:19,600 --> 00:12:21,600
So no civil liability. 
Right. 

257
00:12:21,600 --> 00:12:24,280
The court reasoned that because 
the warning is only a 

258
00:12:24,280 --> 00:12:28,240
prophylactic rule and not the 
constitutional right itself, the

259
00:12:28,240 --> 00:12:31,040
failure to warn doesn't 
constitute a deprivation of a 

260
00:12:31,040 --> 00:12:33,840
constitutional right, which is 
what's necessary for that kind 

261
00:12:33,840 --> 00:12:35,480
of civil suit. 
Wait, so let me get this 

262
00:12:35,480 --> 00:12:38,240
straight. 
An officer violates Miranda, 

263
00:12:38,320 --> 00:12:40,800
gets confession. 
That confession gets suppressed,

264
00:12:41,480 --> 00:12:44,800
but the suspect still can't sue 
that officer for violating their

265
00:12:44,800 --> 00:12:46,120
rights. 
That's correct. 

266
00:12:46,520 --> 00:12:49,280
The remedy for a Miranda 
violation is solely the 

267
00:12:49,280 --> 00:12:52,200
exclusion of the testimonial 
statement for the prosecution's 

268
00:12:52,200 --> 00:12:55,760
case in chief. 
There is no independent civil 

269
00:12:55,760 --> 00:12:58,360
cause of action for violating 
the prophylactic rule. 

270
00:12:59,360 --> 00:13:02,000
And critics, of course, argued 
immediately that this ruling 

271
00:13:02,000 --> 00:13:04,960
makes it easier for police to 
pursue unwarned statements 

272
00:13:05,280 --> 00:13:08,160
because it reduces the personal 
incentive, the accountability 

273
00:13:08,320 --> 00:13:11,080
for the officer. 
It really lends credence to 

274
00:13:11,080 --> 00:13:13,840
Harlan's old critique about the 
shifting nature of this 

275
00:13:13,840 --> 00:13:16,720
constitutional structure. 
OK, that background gives us the

276
00:13:16,720 --> 00:13:19,640
why and the consequences. 
Now let's tackle the when. 

277
00:13:19,680 --> 00:13:22,040
This is where exam answers rise 
or fall. 

278
00:13:22,040 --> 00:13:24,040
This is everything. 
Miranda warnings are only 

279
00:13:24,040 --> 00:13:26,480
required when a suspect is 
subjected to custodial 

280
00:13:26,480 --> 00:13:29,200
interrogation. 
Both elements must be present. 

281
00:13:29,560 --> 00:13:32,920
So let's start with custody. 
What is the objective standard 

282
00:13:32,920 --> 00:13:35,600
we use to determine if someone 
is in custody? 

283
00:13:35,800 --> 00:13:39,200
The standard is objective and it
relied on the totality of the 

284
00:13:39,200 --> 00:13:42,520
circumstances. 
Custody exists if a reasonable 

285
00:13:42,520 --> 00:13:45,160
person in the suspect's position
would have believed they were 

286
00:13:45,160 --> 00:13:47,960
not free to leave or terminate 
the interview. 

287
00:13:47,960 --> 00:13:50,080
A reasonable. 
Person A reasonable person. 

288
00:13:50,520 --> 00:13:53,680
And crucially, the focus is 
entirely on the suspect's 

289
00:13:53,680 --> 00:13:57,480
perspective, not the subjective,
unexpressed intent of the police

290
00:13:57,480 --> 00:14:00,280
officer. 
If the officer secretly planned 

291
00:14:00,280 --> 00:14:03,800
to arrest the suspect all along 
but acted calmly and said you're

292
00:14:03,800 --> 00:14:07,640
free to go, the suspect wasn't 
in custody for Miranda purposes.

293
00:14:07,800 --> 00:14:10,680
I find that students, myself 
included, often get tripped up 

294
00:14:10,680 --> 00:14:14,040
by situations that look like 
custody but legally are not. 

295
00:14:14,400 --> 00:14:17,320
So let's hit the trickiest exam 
trap, starting with individuals 

296
00:14:17,320 --> 00:14:20,000
who are already incarcerated. 
Yes, this is a classic trap 

297
00:14:20,440 --> 00:14:23,120
because intuitively, if you're 
in jail, you're in custody. 

298
00:14:23,200 --> 00:14:25,640
Of course you are. 
But Miranda custody is about the

299
00:14:25,640 --> 00:14:28,400
further deprivation of liberty 
that creates that specific 

300
00:14:28,400 --> 00:14:30,520
course of atmosphere of an 
interrogation. 

301
00:14:31,400 --> 00:14:33,560
In Housby feels. 
The court held that a jail 

302
00:14:33,560 --> 00:14:36,960
inmate questioned about an 
unrelated offense is not 

303
00:14:36,960 --> 00:14:38,800
automatically in Miranda 
custody. 

304
00:14:39,040 --> 00:14:42,400
How is it even possible? 
They are literally not free to 

305
00:14:42,400 --> 00:14:43,880
leave the jail. 
I know it sounds 

306
00:14:43,880 --> 00:14:46,360
counterintuitive, but the 
court's reasoning is that the 

307
00:14:46,360 --> 00:14:48,880
course of nature of the 
questioning is lessened by their

308
00:14:48,880 --> 00:14:52,280
existing incarceration. 
If the inmate is brought to, 

309
00:14:52,280 --> 00:14:56,120
say, a conference room, they're 
not physically restrained beyond

310
00:14:56,120 --> 00:14:58,800
their normal confinement. 
They're not threatened and this 

311
00:14:58,800 --> 00:15:01,080
is critical. 
They are told you are free to 

312
00:15:01,080 --> 00:15:03,520
end this questioning and go back
to your cell at any time. 

313
00:15:04,360 --> 00:15:07,720
In that case, the atmosphere 
isn't considered unduly coercive

314
00:15:07,720 --> 00:15:09,600
enough to trigger the Miranda 
warnings. 

315
00:15:10,120 --> 00:15:13,360
Psychological pressures are 
viewed as less severe than those

316
00:15:13,360 --> 00:15:15,680
facing a private citizen who 
suddenly pulled off the street 

317
00:15:15,680 --> 00:15:17,320
and isolated in a police 
station. 

318
00:15:17,800 --> 00:15:21,640
And we saw this mirrored in a 
Michigan case, People V Cortez, 

319
00:15:21,640 --> 00:15:24,320
right, involving A prisoner 
question about a weapon in his 

320
00:15:24,320 --> 00:15:26,800
cell. 
Correct, the Cortez court echoed

321
00:15:26,800 --> 00:15:28,880
Fields. 
In that case, the defendant was 

322
00:15:28,880 --> 00:15:31,560
handcuffed and consigned in an 
office with a closed door. 

323
00:15:31,840 --> 00:15:35,000
But the questioning was very 
brief, only 15 minutes, and the 

324
00:15:35,000 --> 00:15:36,680
corrections officer was non 
threatening. 

325
00:15:36,920 --> 00:15:40,080
So even with handcuffs. 
Even with handcuffs, because the

326
00:15:40,080 --> 00:15:42,840
coercive aspects common to 
station house interrogations 

327
00:15:42,840 --> 00:15:45,920
were absent, the court found he 
wasn't in Miranda custody. 

328
00:15:46,600 --> 00:15:50,640
The key take away here for your 
exam is incarceration alone does

329
00:15:50,640 --> 00:15:54,040
not equal Miranda custody. 
You have to look for a new 

330
00:15:54,160 --> 00:15:58,080
significant restraint or a 
coercive environment beyond the 

331
00:15:58,080 --> 00:16:01,080
normal prison routine. 
OK, let's move outside the jail.

332
00:16:01,200 --> 00:16:04,800
What about questioning that 
happens during, say, a routine 

333
00:16:04,800 --> 00:16:07,840
traffic stop? 
Or inside a suspect's own home. 

334
00:16:07,840 --> 00:16:10,480
Routine traffic stops or brief 
Terry stops. 

335
00:16:10,720 --> 00:16:13,280
Those temporary detentions 
justified by reasonable 

336
00:16:13,280 --> 00:16:15,720
suspicion. 
They typically do not constitute

337
00:16:15,720 --> 00:16:16,760
custody. 
Why not? 

338
00:16:16,880 --> 00:16:19,440
Because a reasonable person 
understands that those stops are

339
00:16:19,440 --> 00:16:22,000
temporary and brief. 
You expect you'll be released 

340
00:16:22,000 --> 00:16:23,760
once the officer finishes the 
inquiry. 

341
00:16:24,560 --> 00:16:27,000
And People V Jones, for 
instance, the defendant was 

342
00:16:27,000 --> 00:16:29,280
asked to sit in the police 
cruiser while her car was 

343
00:16:29,280 --> 00:16:32,040
searched, but she wasn't 
handcuffed and was explicitly 

344
00:16:32,040 --> 00:16:34,960
told she was not under arrest. 
So she was free to leave once 

345
00:16:34,960 --> 00:16:36,480
the officer was done. 
Exactly. 

346
00:16:36,480 --> 00:16:38,840
So no custody. 
And similarly, when police 

347
00:16:38,840 --> 00:16:42,120
question a suspect inside their 
own home, it rarely constitutes 

348
00:16:42,120 --> 00:16:44,080
custody. 
Your own home is supposed to be 

349
00:16:44,080 --> 00:16:46,680
your castle, right? 
Not a coercive environment. 

350
00:16:46,760 --> 00:16:49,360
Exactly. 
In People, Yvonne, you had 

351
00:16:49,440 --> 00:16:51,880
plainclothes officers who 
entered the defendant's home 

352
00:16:51,880 --> 00:16:54,720
with his mother's permission. 
They didn't draw their weapons, 

353
00:16:54,960 --> 00:16:57,920
and they didn't restrict his 
movement while questioning him. 

354
00:16:58,760 --> 00:17:01,320
That home environment, it's the 
opposite of the station house. 

355
00:17:01,640 --> 00:17:04,960
It generally alleviates the 
coercive pressures Miranda was 

356
00:17:04,960 --> 00:17:07,280
designed to counter. 
OK, I have to ask about the 

357
00:17:07,280 --> 00:17:10,760
People V Leminsky case because 
this one to me is completely 

358
00:17:10,760 --> 00:17:13,880
counterintuitive. 
You have a suspect questioned in

359
00:17:13,880 --> 00:17:16,760
a hospital bed, physically 
blocked by detectives. 

360
00:17:17,680 --> 00:17:21,280
How can that person possibly be 
considered not in custody? 

361
00:17:21,520 --> 00:17:22,920
That feels like a huge 
restraint. 

362
00:17:23,160 --> 00:17:25,800
That's where the analysis has to
be really rigorous, and that's 

363
00:17:25,800 --> 00:17:28,880
exactly why professors love to 
test this concept. 

364
00:17:29,000 --> 00:17:31,720
I'm sure they do. 
Lewinsky shows that a perceived 

365
00:17:31,720 --> 00:17:34,840
physical inability to leave 
isn't the only factor. 

366
00:17:35,320 --> 00:17:38,960
Yes, in Lewinsky, the defendant 
was in a compromise vulnerable 

367
00:17:38,960 --> 00:17:42,280
state, and yes, the detectives 
were positioned to block his 

368
00:17:42,280 --> 00:17:43,480
exit. 
So he couldn't leave. 

369
00:17:43,840 --> 00:17:47,040
He couldn't physically leave, 
but the Michigan Supreme Court 

370
00:17:47,040 --> 00:17:49,680
focused on the tone and the 
purpose of the questioning. 

371
00:17:50,320 --> 00:17:53,800
The pre Miranda interrogation 
was consistently non accusatory.

372
00:17:54,440 --> 00:17:56,400
The detectives were conducting 
an investigation. 

373
00:17:56,400 --> 00:17:59,160
They were seeking information, 
not pressing for a confession 

374
00:17:59,960 --> 00:18:03,600
since the environment, despite 
the hospital bed, was not unduly

375
00:18:03,600 --> 00:18:06,880
coercive in an interrogatory 
sense, the court found the 

376
00:18:06,880 --> 00:18:08,960
suspect was not in Miranda 
custody. 

377
00:18:09,040 --> 00:18:12,720
So if the police were gentle, 
ask neutral questions, and 

378
00:18:12,720 --> 00:18:15,240
didn't give off the vibe that 
they were about to arrest him, 

379
00:18:15,240 --> 00:18:18,440
that lack of accusation actually
overrides the physical 

380
00:18:18,440 --> 00:18:21,360
restraint. 
Precisely the reasonable person 

381
00:18:21,360 --> 00:18:25,280
test has to ask, would I feel 
free to terminate the interview?

382
00:18:25,680 --> 00:18:28,200
Not necessarily. 
Can I walk out of this building 

383
00:18:28,200 --> 00:18:31,120
right now and if the police are 
making it clear this is just 

384
00:18:31,120 --> 00:18:34,120
informational and I can stop 
talking whenever I want even if 

385
00:18:34,120 --> 00:18:37,120
I'm physically confined, I may 
not be in Miranda custody. 

386
00:18:37,320 --> 00:18:39,840
Let's touch on deception again, 
but this time in the context of 

387
00:18:39,840 --> 00:18:42,080
custody. 
The People View Wade case where 

388
00:18:42,080 --> 00:18:44,840
you have an incarcerated suspect
on the phone with his girlfriend

389
00:18:44,840 --> 00:18:46,440
who's secretly working for the 
police. 

390
00:18:46,640 --> 00:18:49,360
In Envy Wade, the court held 
there was no custodial 

391
00:18:49,360 --> 00:18:52,400
interrogation. 
Yes, the police absolutely used 

392
00:18:52,400 --> 00:18:55,080
deception to get the statement, 
but you have to analyze it from 

393
00:18:55,080 --> 00:18:57,240
the suspect's perspective. 
He thinks he's talking to his 

394
00:18:57,240 --> 00:18:58,560
girlfriend. 
Exactly. 

395
00:18:59,080 --> 00:19:01,600
And he surely believed he was 
free to terminate that 

396
00:19:01,600 --> 00:19:05,640
conversation at any time just by
hanging up the phone, since he 

397
00:19:05,640 --> 00:19:07,960
perceived he had control over 
the interaction. 

398
00:19:08,240 --> 00:19:11,840
The essential coercive element 
of Miranda custody, that loss of

399
00:19:11,840 --> 00:19:14,080
freedom to terminate the 
interaction, it was absent. 

400
00:19:14,600 --> 00:19:17,280
Deception alone doesn't create 
custody, especially when the 

401
00:19:17,280 --> 00:19:19,320
suspect thinks they're in 
control of the dialogue. 

402
00:19:19,640 --> 00:19:23,200
OK, that sets a very, very high 
bar for proving custody. 

403
00:19:23,400 --> 00:19:26,280
So let's move to the second 
trigger, interrogation. 

404
00:19:27,040 --> 00:19:30,840
Even if a suspect is in custody,
they also have to be subject to 

405
00:19:30,840 --> 00:19:33,120
interrogation. 
What's the standard here? 

406
00:19:33,120 --> 00:19:36,000
From Rhode Island, via Ennis. 
Gave us the definition and it's 

407
00:19:36,000 --> 00:19:38,520
that interrogation means not 
just direct questioning, but 

408
00:19:38,520 --> 00:19:41,920
also any words or actions by law
enforcement that the officer 

409
00:19:41,920 --> 00:19:45,200
should know are reasonably 
likely to elicit a self 

410
00:19:45,200 --> 00:19:47,200
incriminating response from the 
individual. 

411
00:19:47,280 --> 00:19:50,280
The should know standard. 
It's an objective likelihood 

412
00:19:50,280 --> 00:19:51,480
test. 
That's the key. 

413
00:19:51,680 --> 00:19:54,840
This is a perfect place to use 
the famous facts of Ennis to 

414
00:19:54,840 --> 00:19:56,880
illustrate this doctrine. 
Absolutely. 

415
00:19:57,400 --> 00:20:01,560
The case involved Innis, a 
robbery suspect who was arrested

416
00:20:01,560 --> 00:20:05,040
and given his Miranda warnings, 
and he invoked his right to 

417
00:20:05,040 --> 00:20:09,920
counsel, so questioning should 
have stopped while he's being 

418
00:20:09,920 --> 00:20:13,960
transported in a police car. 
Two officers who knew Innis was 

419
00:20:13,960 --> 00:20:18,000
religious start discussing aloud
how terrible it would be if a 

420
00:20:18,000 --> 00:20:21,560
disabled child from a nearby 
school found the shotgun used in

421
00:20:21,560 --> 00:20:24,040
the robbery. 
They called it the Christian 

422
00:20:24,040 --> 00:20:26,680
burial speech. 
And what happens? 

423
00:20:26,680 --> 00:20:28,560
Innis immediately tells them 
where the gun is. 

424
00:20:28,600 --> 00:20:31,960
So the Supreme Court had to 
decide, was that dialogue 

425
00:20:31,960 --> 00:20:34,560
between the officers 
interrogation? 

426
00:20:34,560 --> 00:20:36,680
Correct. 
And the court said no, it's 

427
00:20:36,680 --> 00:20:38,800
close call. 
Well, the officers knew Innis 

428
00:20:38,800 --> 00:20:40,720
was religious. 
There was no evidence. 

429
00:20:40,720 --> 00:20:42,760
They knew he was particularly 
sensitive to the thought of 

430
00:20:42,760 --> 00:20:45,440
children finding the weapon, so 
the court found that the 

431
00:20:45,440 --> 00:20:47,760
officers dialogue was not 
something they should have known

432
00:20:47,760 --> 00:20:50,960
was reasonably likely to elicit 
an incriminating response. 

433
00:20:50,960 --> 00:20:55,000
So it wasn't seen as a blatant 
attempt to play on his known 

434
00:20:55,000 --> 00:20:56,440
weaknesses. 
Right. 

435
00:20:56,600 --> 00:20:59,160
It was deemed more of a 
spontaneous exchange between the

436
00:20:59,160 --> 00:21:00,880
officers. 
This established that the 

437
00:21:00,880 --> 00:21:04,120
objective likelihood of 
eliciting a response is the 

438
00:21:04,120 --> 00:21:08,200
focus, not the subjective 
unexpressed intent of the police

439
00:21:08,200 --> 00:21:10,840
to get a confession. 
That is a very close call, which

440
00:21:10,840 --> 00:21:12,800
is why it's so critical for the 
exam. 

441
00:21:12,920 --> 00:21:15,280
The focus is on that objective 
likelihood. 

442
00:21:15,880 --> 00:21:17,560
So what about spontaneous 
statements? 

443
00:21:17,800 --> 00:21:20,680
What if a defendant just blurt 
something out while they're in 

444
00:21:20,680 --> 00:21:24,080
custody but before questioning 
is even started or after it's 

445
00:21:24,080 --> 00:21:26,360
ended? 
That falls under the exception 

446
00:21:26,360 --> 00:21:28,760
for spontaneous or volunteer 
statements. 

447
00:21:29,440 --> 00:21:31,680
If a defendant makes an 
inculpatory statement during a 

448
00:21:31,680 --> 00:21:35,080
routine police procedure that is
clearly not designed to elicit a

449
00:21:35,080 --> 00:21:37,680
response, that statement is 
admissible. 

450
00:21:37,960 --> 00:21:40,600
Can you give us an example of 
that kind of routine procedure? 

451
00:21:40,680 --> 00:21:42,800
People V Leafy is a good example
from Michigan. 

452
00:21:43,280 --> 00:21:45,920
After the police had concluded 
their formal questioning, they 

453
00:21:45,920 --> 00:21:49,120
began a routine pat down to the 
defendant for officer safety 

454
00:21:49,320 --> 00:21:51,640
before transporting him. 
Standard procedure. 

455
00:21:51,960 --> 00:21:54,200
Right. 
And during the security measure,

456
00:21:54,240 --> 00:21:56,520
the defendant made an 
incriminating statement. 

457
00:21:57,280 --> 00:22:00,440
The court ruled the statement 
was admissible because the pat 

458
00:22:00,440 --> 00:22:03,040
down was aimed purely at officer
safety. 

459
00:22:03,600 --> 00:22:06,120
It wasn't an action that the 
officer should have known was 

460
00:22:06,120 --> 00:22:08,560
likely to elicit an 
incriminating response. 

461
00:22:09,000 --> 00:22:12,680
Once the interrogation is over. 
Spontaneous admissions are not 

462
00:22:12,680 --> 00:22:15,560
barred by Miranda. 
OK, so we've established the 

463
00:22:15,560 --> 00:22:18,080
trigger, custody plus 
interrogation. 

464
00:22:18,640 --> 00:22:20,080
Now let's move to the next 
stage. 

465
00:22:20,520 --> 00:22:24,240
The suspect has been warned they
can either waive those rights or

466
00:22:24,240 --> 00:22:27,160
they can invoke them when the 
prosecution wants to admit a 

467
00:22:27,160 --> 00:22:29,040
statement. 
What's their burden regarding 

468
00:22:29,040 --> 00:22:31,080
the waiver? 
The prosecution bears an 

469
00:22:31,080 --> 00:22:33,320
affirmative burden. 
They have to show that the 

470
00:22:33,320 --> 00:22:36,400
warnings were given and that the
suspect made a valid waiver. 

471
00:22:36,640 --> 00:22:38,880
And the standard of proof here 
is the preponderance of the 

472
00:22:38,880 --> 00:22:41,560
evidence which was established 
in Colorado V Connolly. 

473
00:22:41,560 --> 00:22:44,480
So a lower bar than beyond a 
reasonable doubt. 

474
00:22:44,480 --> 00:22:47,200
Much lower, but it still 
requires proof that the waiver 

475
00:22:47,200 --> 00:22:50,440
was valid based on that totality
of the circumstances. 

476
00:22:50,880 --> 00:22:53,080
What if the defendant had some 
kind of mental illness or 

477
00:22:53,080 --> 00:22:55,440
cognitive impairment? 
Does that automatically 

478
00:22:55,440 --> 00:22:57,120
invalidate the waiver under 
Connolly? 

479
00:22:57,320 --> 00:22:59,640
That's a great question, and 
Connolly is very important here.

480
00:23:00,400 --> 00:23:03,440
The court ruled that while a 
defendant's mental condition is 

481
00:23:03,440 --> 00:23:05,960
certainly relevant, it is not 
dispositive. 

482
00:23:06,760 --> 00:23:10,840
Critically, to invalidate a 
waiver, there must be evidence 

483
00:23:10,920 --> 00:23:13,400
of police coercion. 
Police coercion. 

484
00:23:13,400 --> 00:23:14,760
It all comes. 
Back to that it does. 

485
00:23:15,400 --> 00:23:18,600
If the defendant confessed 
because of a command voice they 

486
00:23:18,600 --> 00:23:21,320
believe they heard in their 
head, but the police did nothing

487
00:23:21,320 --> 00:23:24,720
coercive, the confession is 
still admissible provided the 

488
00:23:24,720 --> 00:23:27,800
police got a proper waiver. 
Police coercion is the 

489
00:23:27,800 --> 00:23:31,600
prerequisite for finding a 
statement involuntary or a 

490
00:23:31,600 --> 00:23:34,040
waiver invalid. 
And to be valid, the waiver has 

491
00:23:34,040 --> 00:23:37,480
to satisfy 2 prongs right? 
These two are non negotiable. 

492
00:23:37,600 --> 00:23:39,280
Absolutely. 
First, the waiver must be 

493
00:23:39,280 --> 00:23:41,160
voluntary. 
It has to be the product of a 

494
00:23:41,160 --> 00:23:44,600
free and uncoerced choice. 
No external compulsion should 

495
00:23:44,600 --> 00:23:46,440
taint the decision. 
Second. 

496
00:23:46,440 --> 00:23:48,320
Second, it must be knowing and 
intelligent. 

497
00:23:48,440 --> 00:23:51,400
This requires A suspect to have 
a full awareness of both the 

498
00:23:51,400 --> 00:23:54,880
nature of the rights they're 
abandoning silence counsel, and 

499
00:23:54,880 --> 00:23:57,960
the general consequences of 
abandoned them, meaning what 

500
00:23:57,960 --> 00:23:59,480
they say can be used against 
them. 

501
00:23:59,800 --> 00:24:03,600
On that knowing an intelligent 
prong, what's a common mistake 

502
00:24:03,600 --> 00:24:05,760
that students often make about 
what the suspect needs to 

503
00:24:05,760 --> 00:24:08,160
understand? 
The mistake is thinking the 

504
00:24:08,160 --> 00:24:11,720
suspect needs to understand the 
ultimate legal ramifications of 

505
00:24:11,720 --> 00:24:13,080
their decision. 
Meaning what? 

506
00:24:13,080 --> 00:24:17,400
Meaning how this confession will
specifically impact their 

507
00:24:17,400 --> 00:24:19,960
eventual trial strategy or 
defense. 

508
00:24:20,320 --> 00:24:23,240
They don't need to know that. 
The Michigan Supreme Court 

509
00:24:23,240 --> 00:24:25,520
clarified this in People V. 
Cheat them. 

510
00:24:26,440 --> 00:24:29,920
Miranda requires the accused to 
be advised of their rights so 

511
00:24:29,920 --> 00:24:32,440
they can make a rational 
decision, not necessarily the 

512
00:24:32,440 --> 00:24:35,640
best one or one based on perfect
legal foresight. 

513
00:24:35,920 --> 00:24:38,280
So a bad decision is still a 
valid waiver. 

514
00:24:38,320 --> 00:24:41,400
Lack of foresight is legally 
insufficient to invalidate an 

515
00:24:41,400 --> 00:24:43,840
otherwise proper waiver. 
OK, let's turn to the flip side,

516
00:24:44,400 --> 00:24:47,800
invoking the rights If a suspect
wants to stop the questioning, 

517
00:24:47,960 --> 00:24:50,960
how clear do they have to be? 
This is where the doctrine takes

518
00:24:50,960 --> 00:24:53,320
a sharp and frankly 
controversial turn towards law 

519
00:24:53,320 --> 00:24:56,920
enforcement convenience, largely
due to Berkeley's V Tompkins. 

520
00:24:56,920 --> 00:25:00,000
They have to be crystal clear, 
and this is the exam point that 

521
00:25:00,000 --> 00:25:02,960
trips up most students who rely 
on Hollywood movies for their 

522
00:25:02,960 --> 00:25:04,800
law A. 
Dangerous source. 

523
00:25:05,120 --> 00:25:07,720
Very. 
Under Berg Whis V Tompkins, a 

524
00:25:07,720 --> 00:25:11,160
suspect statement must be 
unambiguous or unequivocal to 

525
00:25:11,200 --> 00:25:13,720
invoke the right to silence or 
the right to counsel. 

526
00:25:14,680 --> 00:25:17,800
If this statement is ambiguous, 
like maybe I should talk to a 

527
00:25:17,800 --> 00:25:20,800
lawyer or I don't think I should
say anything else, the police 

528
00:25:20,800 --> 00:25:22,600
are not required to stop the 
interrogation. 

529
00:25:22,640 --> 00:25:24,240
They can just keep going. 
They can keep going. 

530
00:25:24,240 --> 00:25:26,160
Wow. 
That feels like it guts the 

531
00:25:26,160 --> 00:25:29,200
original Miranda promise. 
If you're in a stressful, 

532
00:25:29,200 --> 00:25:32,160
coercive environment, the court 
is now requiring you to be 

533
00:25:32,160 --> 00:25:34,840
articulate and precise, almost 
like a practicing lawyer, just 

534
00:25:34,840 --> 00:25:37,840
to stop the questioning. 
That is precisely the scholarly 

535
00:25:37,840 --> 00:25:41,080
critique of the case. 
The Tompkins majority felt that 

536
00:25:41,080 --> 00:25:44,880
requiring officers to stop and 
clarify every ambiguous 

537
00:25:44,880 --> 00:25:48,520
statement was too burdensome, so
they put the burden squarely on 

538
00:25:48,520 --> 00:25:51,720
the suspect to speak up clearly.
So if the suspect gets the 

539
00:25:51,720 --> 00:25:54,760
warnings and then says nothing 
or says something ambiguous, 

540
00:25:54,760 --> 00:25:56,200
the. 
Police are entitled to continue 

541
00:25:56,200 --> 00:26:00,200
questioning until the suspect 
unambiguously invokes the right.

542
00:26:00,520 --> 00:26:03,720
And Tompkins also established a 
critical way for the prosecution

543
00:26:03,720 --> 00:26:06,440
to prove waiver without any 
explicit statement. 

544
00:26:06,760 --> 00:26:09,400
Can you detail this implied 
waiver doctrine that came out of

545
00:26:09,400 --> 00:26:12,080
it? 
Yes, in the Tompkins case 

546
00:26:12,080 --> 00:26:15,600
itself, the defendant remained 
largely silent for almost 3 

547
00:26:15,600 --> 00:26:17,000
hours after getting the 
warnings. 

548
00:26:17,640 --> 00:26:21,040
He never explicitly said I'm 
invoking my right to silence. 

549
00:26:21,480 --> 00:26:23,760
Three hours. 
Finally, after hours of 

550
00:26:23,760 --> 00:26:26,600
persistent questioning, he made 
a single incriminating 

551
00:26:26,600 --> 00:26:29,360
statement, and the Supreme Court
found that this subsequent 

552
00:26:29,360 --> 00:26:32,080
statement, after having been 
read the warnings and presumably

553
00:26:32,080 --> 00:26:35,280
understanding them, constituted 
an implied waiver. 

554
00:26:35,480 --> 00:26:38,120
An implied waiver after three 
hours of silence. 

555
00:26:38,120 --> 00:26:41,400
This is a powerful rule. 
It means police can continue 

556
00:26:41,400 --> 00:26:44,680
questioning an in custody 
suspect who has received but 

557
00:26:44,680 --> 00:26:48,360
neither explicitly waived nor 
explicitly invoked their rights.

558
00:26:48,960 --> 00:26:51,480
The mere fact of making an 
uncoerced statement after 

559
00:26:51,480 --> 00:26:54,200
receiving warnings and 
understanding them can imply a 

560
00:26:54,200 --> 00:26:55,920
waiver. 
So that's why some scholars 

561
00:26:55,920 --> 00:26:58,880
argue that Tompkins created an 
implied waiver doctrine on 

562
00:26:58,880 --> 00:27:01,120
steroids. 
Absolutely, because it allows 

563
00:27:01,120 --> 00:27:03,960
silence followed by an 
incriminating statement to 

564
00:27:03,960 --> 00:27:07,040
satisfy what's supposed to be a 
heavy burden of proving waiver. 

565
00:27:07,280 --> 00:27:10,320
OK, so now we move to what 
happens when a violation 

566
00:27:10,320 --> 00:27:14,160
actually occurs when an unwarned
statement is taken during a 

567
00:27:14,160 --> 00:27:17,680
custodial interrogation. 
Before we get to the big federal

568
00:27:17,680 --> 00:27:20,800
exceptions, let's briefly touch 
on a modern state specific 

569
00:27:20,800 --> 00:27:24,320
safeguard, Michigan's statutory 
requirement for recording 

570
00:27:24,320 --> 00:27:27,280
interrogations. 
Yes, this is crucial for local 

571
00:27:27,280 --> 00:27:29,200
practice. 
It's a critical law. 

572
00:27:29,280 --> 00:27:34,960
MCL 763.8 Michigan mandates that
interrogations for certain major

573
00:27:34,960 --> 00:27:37,760
felonies that happen in 
custodial detention must be time

574
00:27:37,760 --> 00:27:40,480
stamped audio visual recordings.
And does that include the 

575
00:27:40,480 --> 00:27:42,240
reading of the rights? 
It does. 

576
00:27:42,360 --> 00:27:45,000
The statue specifies that this 
recording must include the law 

577
00:27:45,000 --> 00:27:47,680
enforcement officials 
notification of the individuals 

578
00:27:47,680 --> 00:27:51,280
Miranda rights and this applies 
to major felonies like murder, 

579
00:27:51,400 --> 00:27:54,600
first degree criminal sexual 
conduct, armed robbery and 

580
00:27:54,600 --> 00:27:56,640
others. 
So what's the consequence if the

581
00:27:56,640 --> 00:27:59,480
police failed to record a major 
felony interrogation? 

582
00:27:59,800 --> 00:28:01,760
Is the confession automatically 
tossed out? 

583
00:28:02,040 --> 00:28:05,000
No, and this is the vital 
distinction that you must know 

584
00:28:05,000 --> 00:28:09,600
for Michigan criminal procedure.
It's not an automatic exclusion.

585
00:28:10,560 --> 00:28:15,720
The statute MCL 763.9 states 
that the failure to record does 

586
00:28:15,720 --> 00:28:18,680
not prevent law enforcement from
testifying about the statements 

587
00:28:18,680 --> 00:28:21,640
contents, provided the statement
is otherwise admissible. 

588
00:28:21,640 --> 00:28:24,240
So if it was voluntary. 
Exactly. 

589
00:28:24,720 --> 00:28:27,640
But there is a mandatory 
instruction for the jury, and 

590
00:28:27,640 --> 00:28:30,240
this is the real safeguard, OK. 
What do they have to be told? 

591
00:28:30,640 --> 00:28:33,480
If the statement is admitted, 
the jury must be instructed that

592
00:28:33,480 --> 00:28:36,840
state law requires these 
statements to be recorded, and 

593
00:28:36,840 --> 00:28:39,760
they are specifically told that 
they may consider the absence of

594
00:28:39,760 --> 00:28:42,720
a recording in evaluating the 
evidence relating to the 

595
00:28:42,720 --> 00:28:45,280
individual statement. 
So gives the defense a powerful 

596
00:28:45,280 --> 00:28:47,640
argument. 
A very potent argument to raise 

597
00:28:47,640 --> 00:28:50,480
reasonable doubt about what was 
actually said versus what the 

598
00:28:50,480 --> 00:28:53,320
police are claiming was said. 
OK, a great tool even without 

599
00:28:53,320 --> 00:28:55,400
exclusion. 
Let's turn to the federal 

600
00:28:55,400 --> 00:28:58,120
Supreme Court exceptions that 
allow the admission of unworn 

601
00:28:58,120 --> 00:29:01,840
statements for specific 
purposes. 1st The Impeachment 

602
00:29:01,840 --> 00:29:03,680
Exception from Harris V New 
York. 

603
00:29:03,960 --> 00:29:06,440
Here's established that 
statements obtained in violation

604
00:29:06,440 --> 00:29:09,640
of Miranda so unwarned 
statements from a custodial 

605
00:29:09,640 --> 00:29:12,960
interrogation, but that were 
otherwise voluntary under the 

606
00:29:12,960 --> 00:29:16,120
due process standard, may be 
used to impeach the defendants 

607
00:29:16,120 --> 00:29:18,640
credibility. 
OK, so a statement that's barred

608
00:29:18,640 --> 00:29:22,320
from the prosecution's case in 
chief can still be used if the 

609
00:29:22,320 --> 00:29:24,800
defendant takes the stand. 
What's the policy behind that? 

610
00:29:25,640 --> 00:29:28,680
The court's rationale was about 
striking a balance a balance 

611
00:29:28,680 --> 00:29:31,320
between deterring police 
misconduct and preventing 

612
00:29:31,320 --> 00:29:33,840
perjury. 
So Miranda isn't a license to 

613
00:29:33,840 --> 00:29:35,160
lie. 
Exactly. 

614
00:29:35,880 --> 00:29:38,920
The shield of Miranda cannot 
become a license to testify 

615
00:29:38,920 --> 00:29:41,920
falsely. 
If a defendant takes the stand 

616
00:29:41,920 --> 00:29:44,760
and offers testimony that's 
inconsistent with their prior 

617
00:29:44,760 --> 00:29:47,560
unwarned statement, the 
prosecution can bring up that 

618
00:29:47,560 --> 00:29:50,040
prior statement on cross 
examination to show the jury 

619
00:29:50,040 --> 00:29:52,560
that the defendant has, well, 
lied before. 

620
00:29:52,560 --> 00:29:55,200
And the jury is instructed to 
only use it for credibility. 

621
00:29:55,480 --> 00:29:58,240
Typically, yes, they are told 
they can only use this prior 

622
00:29:58,240 --> 00:30:01,680
statement to weigh credibility, 
not as substantive evidence of 

623
00:30:01,680 --> 00:30:03,440
guilt. 
But let's tie this back to due 

624
00:30:03,440 --> 00:30:05,880
process, because this is where 
students often collapse the 

625
00:30:05,880 --> 00:30:08,240
analysis. 
When does the Harris exception 

626
00:30:08,280 --> 00:30:11,480
absolutely fail? 
It fails when the underlying 

627
00:30:11,480 --> 00:30:14,720
statement was not voluntary. 
Remember the absolute bar we 

628
00:30:14,720 --> 00:30:15,760
talked about at the beginning, 
right? 

629
00:30:15,840 --> 00:30:19,520
If the statement was actually 
coerced, meaning it violated due

630
00:30:19,520 --> 00:30:23,200
process voluntariness standard, 
it is inadmissible for all 

631
00:30:23,200 --> 00:30:25,240
purposes, and that includes 
impeachment. 

632
00:30:25,680 --> 00:30:28,200
The Court will not allow the 
introduction of a statement 

633
00:30:28,200 --> 00:30:32,440
secured through brutality or 
overwhelming coercion, not even 

634
00:30:32,440 --> 00:30:35,360
to challenge credibility. 
OK, next let's discuss the 

635
00:30:35,360 --> 00:30:38,320
physical fruits exception from 
United States Vipatane. 

636
00:30:38,720 --> 00:30:41,240
This deals with physical 
evidence derived from an 

637
00:30:41,240 --> 00:30:44,120
unwarned confession. 
This is another one that feels 

638
00:30:44,120 --> 00:30:46,760
counterintuitive. 
If the confession itself LED 

639
00:30:46,760 --> 00:30:49,520
police directly to the murder 
weapon, isn't that weapon still 

640
00:30:49,520 --> 00:30:52,680
fruit of the poisonous tree, 
even if it's non testimonial? 

641
00:30:53,000 --> 00:30:55,880
That is the exact question the 
court answered in Petain, and 

642
00:30:55,880 --> 00:30:58,720
the answer stems directly from 
that prophylactic nature of 

643
00:30:58,720 --> 00:31:00,960
Miranda we keep talking about. 
It all comes back to that. 

644
00:31:00,960 --> 00:31:02,760
It does. 
The rule is clear physical 

645
00:31:02,760 --> 00:31:06,080
evidence, so non testimonial 
evidence obtained as a direct 

646
00:31:06,080 --> 00:31:09,440
result of unwarned but otherwise
voluntary statements given in 

647
00:31:09,440 --> 00:31:12,560
violation of Miranda is not 
subject to the exclusionary 

648
00:31:12,560 --> 00:31:14,200
rule. 
So where's the line? 

649
00:31:14,200 --> 00:31:17,560
What is the logic behind and 
letting the gun in but not the 

650
00:31:17,560 --> 00:31:20,200
statement about the gun? 
The logic lies squarely in the 

651
00:31:20,200 --> 00:31:23,000
5th Amendment's text. 
The 5th Amendment prohibits 

652
00:31:23,000 --> 00:31:25,440
compelling a person to be a 
witness against himself. 

653
00:31:26,000 --> 00:31:28,320
It prohibits compelling 
testimonial evidence. 

654
00:31:28,440 --> 00:31:29,960
Commutative. 
Evidence right. 

655
00:31:30,120 --> 00:31:34,040
Since a physical piece of 
evidence like a gun or drugs is 

656
00:31:34,040 --> 00:31:38,200
non testimonial, and since the 
underlying Miranda failure is 

657
00:31:38,200 --> 00:31:41,080
just a violation of a 
prophylactic rule, not the 

658
00:31:41,080 --> 00:31:44,360
constitutional right itself, the
physical evidence found as a 

659
00:31:44,360 --> 00:31:47,600
result is not barred. 
The court essentially said 

660
00:31:47,600 --> 00:31:50,800
there's no 5th Amendment 
violation to deter here by 

661
00:31:50,800 --> 00:31:53,720
excluding the physical evidence 
because the compulsion only 

662
00:31:53,720 --> 00:31:55,960
targets testimony. 
So let's walk through it. 

663
00:31:56,000 --> 00:31:59,240
Police ask an unwarned suspect 
in custody where's the gun, and 

664
00:31:59,240 --> 00:32:00,800
the suspect says it's under the 
bed. 

665
00:32:01,160 --> 00:32:04,520
The prosecution cannot admit the
statement it's under the bed in 

666
00:32:04,520 --> 00:32:06,800
their case in chief. 
Because that's testimonial. 

667
00:32:06,800 --> 00:32:08,280
But they can admit the gun 
itself. 

668
00:32:08,640 --> 00:32:11,120
Exactly. 
The testimonial statement is 

669
00:32:11,120 --> 00:32:13,600
suppressed because the Miranda 
procedure was violated. 

670
00:32:14,160 --> 00:32:17,600
The gun, however, is admissible 
because it is physical evidence.

671
00:32:18,320 --> 00:32:21,600
This distinction is paramount 
for your analysis, and it really

672
00:32:21,600 --> 00:32:24,040
showcases the current 
limitations of Miranda as a 

673
00:32:24,040 --> 00:32:26,440
deterrent. 
OK, finally, let's cover the 

674
00:32:26,440 --> 00:32:30,640
third key exception, the public 
safety exception from New York V

675
00:32:30,640 --> 00:32:33,000
Quarrels. 
Quarrels carved out a major, 

676
00:32:33,280 --> 00:32:36,760
very pragmatic exception. 
The rule is if an officer is 

677
00:32:36,760 --> 00:32:39,480
reasonably prompted by an 
overriding concern for public 

678
00:32:39,480 --> 00:32:43,160
safety, they can question a 
suspect in custody without first

679
00:32:43,160 --> 00:32:45,920
providing Miranda warnings. 
And the statement is admissible.

680
00:32:46,040 --> 00:32:48,840
The resulting statement and any 
physical evidence derived from 

681
00:32:48,840 --> 00:32:50,840
it will be admissible. 
Can you give us the classic 

682
00:32:50,840 --> 00:32:53,080
quarrel scenario to illustrate 
how this works? 

683
00:32:53,080 --> 00:32:56,640
Of course, in quarrels, the 
suspect was arrested in a 

684
00:32:56,640 --> 00:32:59,760
supermarket and subdued. 
The officer noticed he had an 

685
00:32:59,760 --> 00:33:02,560
empty gun holster and 
immediately before reading him 

686
00:33:02,560 --> 00:33:04,880
his rights, asked where is the 
gun? 

687
00:33:05,280 --> 00:33:06,920
And quarrels answered. 
He did. 

688
00:33:07,480 --> 00:33:10,080
He responded by pointing toward 
the weapon, which was hidden 

689
00:33:10,080 --> 00:33:13,080
nearby. 
The Supreme Court admitted both 

690
00:33:13,080 --> 00:33:16,640
his statement and the gun. 
The standard is objective, and 

691
00:33:16,640 --> 00:33:19,720
it recognizes that officers have
to act spontaneously during 

692
00:33:19,720 --> 00:33:22,200
arrests. 
So public safety Trump's 

693
00:33:22,200 --> 00:33:24,000
Miranda. 
The Court held that the 

694
00:33:24,000 --> 00:33:27,320
immediate need to protect the 
public from the risk posed by a 

695
00:33:27,320 --> 00:33:31,640
discarded hidden weapon in a 
public place outweighs the need 

696
00:33:31,640 --> 00:33:33,320
for the prophylactic Miranda 
rule. 

697
00:33:33,680 --> 00:33:36,600
The danger to the public was the
paramount concern justifying the

698
00:33:36,600 --> 00:33:39,080
delay of the warnings. 
OK, We've covered the entire 5th

699
00:33:39,080 --> 00:33:41,320
Amendment framework and its main
exceptions. 

700
00:33:41,800 --> 00:33:44,800
Now we have to quickly address 
that 3rd lane of constitutional 

701
00:33:44,800 --> 00:33:48,280
attack we mentioned way back in 
the intro, the 6th Amendment. 

702
00:33:48,360 --> 00:33:51,880
Yes, students frequently confuse
the 5th and 6th Amendment rights

703
00:33:51,880 --> 00:33:54,280
to counsel. 
How do they differ in terms of 

704
00:33:54,280 --> 00:33:56,760
when they attach? 
This is a vital exam 

705
00:33:56,760 --> 00:33:58,680
distinction. 
The 5th Amendment right to 

706
00:33:58,680 --> 00:34:01,400
counsel is a procedural 
safeguard tied to Miranda. 

707
00:34:01,640 --> 00:34:04,040
It attaches the moment you are 
subjected to custodial 

708
00:34:04,040 --> 00:34:05,440
interrogation. 
It's simple enough. 

709
00:34:05,680 --> 00:34:08,320
The 6th Amendment right to 
counsel, on the other hand, is a

710
00:34:08,320 --> 00:34:11,840
substantive right guaranteeing 
an attorney at critical stages 

711
00:34:11,840 --> 00:34:14,920
of the prosecution. 
It attaches when judicial 

712
00:34:14,920 --> 00:34:17,639
proceedings have formally 
commenced against the defendant.

713
00:34:17,840 --> 00:34:19,880
So what does that mean? 
Formally commenced. 

714
00:34:19,880 --> 00:34:22,679
Typically, it's at the formal 
charge, the preliminary hearing,

715
00:34:22,840 --> 00:34:24,360
the indictment, or the 
arraignment. 

716
00:34:25,000 --> 00:34:27,520
The moment one of those happens,
the government cannot 

717
00:34:27,520 --> 00:34:31,000
deliberately elicit statements 
from the defendant about the 

718
00:34:31,000 --> 00:34:34,360
specific offense for which they 
are charged, even if they aren't

719
00:34:34,360 --> 00:34:36,520
in custody. 
So 5th Amendment Council is 

720
00:34:36,520 --> 00:34:40,080
about coercion in the 
interrogation room pre charge 

721
00:34:40,400 --> 00:34:43,199
and 6th Amendment Council is 
about fairness in the 

722
00:34:43,199 --> 00:34:45,920
adversarial system after the 
state has committed to 

723
00:34:45,920 --> 00:34:47,840
prosecuting the case. 
Precisely. 

724
00:34:48,199 --> 00:34:51,120
And another key difference, the 
6th Amendment right is offense 

725
00:34:51,120 --> 00:34:53,639
specific. 
So if you are arraigned for bank

726
00:34:53,639 --> 00:34:57,440
robbery, let's call it offence 
A, the police can't question you

727
00:34:57,440 --> 00:35:00,840
about that bank robbery without 
your lawyer, but they can still 

728
00:35:00,840 --> 00:35:03,520
question you about a totally 
separate uncharged homicide, 

729
00:35:03,520 --> 00:35:06,960
Offence B, provided you're not 
in Miranda custody for the 

730
00:35:06,960 --> 00:35:09,040
homicide. 
That's a huge distinction. 

731
00:35:09,480 --> 00:35:11,960
OK, moving back to the Fifth 
Amendment scope, let's just 

732
00:35:11,960 --> 00:35:14,760
reiterate that crucial 
difference between testimonial 

733
00:35:14,760 --> 00:35:17,480
and physical evidence, because 
that really defines the limits 

734
00:35:17,480 --> 00:35:19,000
of the privilege itself. 
Right. 

735
00:35:19,440 --> 00:35:21,840
This distinction comes directly 
from the self incrimination 

736
00:35:21,840 --> 00:35:25,960
clause and was clarified way 
back in Smurver V California. 

737
00:35:26,360 --> 00:35:29,480
The 5th Amendment protects only 
evidence that is testimonial in 

738
00:35:29,480 --> 00:35:33,560
nature, meaning meaning evidence
that relates to a commutative 

739
00:35:33,560 --> 00:35:36,200
act or writing by the 
petitioner. 

740
00:35:36,600 --> 00:35:39,840
You cannot be compelled to say 
something or write something 

741
00:35:39,840 --> 00:35:42,840
that incriminates you and. 
What about physical evidence? 

742
00:35:43,000 --> 00:35:45,000
Physical evidence is outside 
that protection. 

743
00:35:45,600 --> 00:35:48,400
In Schmerber, the court held 
that requiring A defendant to 

744
00:35:48,400 --> 00:35:52,000
submit to a blood test to 
determine alcohol content was 

745
00:35:52,000 --> 00:35:53,920
not protected by the 5th 
Amendment, even though the 

746
00:35:53,920 --> 00:35:55,640
result was incriminating. 
Why not? 

747
00:35:55,840 --> 00:35:58,440
Because the blood test result is
physical evidence, it's not 

748
00:35:58,440 --> 00:36:00,480
testimony. 
It's not communicating a 

749
00:36:00,480 --> 00:36:03,720
thought. 
Similarly, compelling a suspect 

750
00:36:03,720 --> 00:36:07,720
to provide a handwriting sample 
of voice exemplar fingerprints 

751
00:36:07,920 --> 00:36:11,440
or to wear specific clothing is 
not protected by the 5th 

752
00:36:11,440 --> 00:36:13,520
Amendment. 
Let's conclude by discussing a 

753
00:36:13,520 --> 00:36:17,400
critical trial issue, the use of
a defendant's silence as 

754
00:36:17,400 --> 00:36:20,000
evidence. 
How does the timing affect 

755
00:36:20,000 --> 00:36:22,520
whether silence can be used 
against someone? 

756
00:36:22,760 --> 00:36:25,600
We have to break this down into 
3 distinct moments. 

757
00:36:26,240 --> 00:36:30,720
Pre arrest silence, post arrest,
pre Miranda silence, and post 

758
00:36:30,720 --> 00:36:34,520
arrest, post Miranda silence. 
The timing dictates the rule. 

759
00:36:34,520 --> 00:36:38,040
OK, let's focus on that last one
first, the post arrest, post 

760
00:36:38,040 --> 00:36:41,440
Miranda silence, which is 
governed by Doyle V Ohio. 

761
00:36:41,960 --> 00:36:45,480
Under Doyle, a defendant silence
after receiving Miranda warnings

762
00:36:45,720 --> 00:36:48,080
is generally inadmissible 
against them at trial. 

763
00:36:48,280 --> 00:36:51,160
The State cannot use the fact 
that the defendant exercised a 

764
00:36:51,160 --> 00:36:53,520
right the State had just 
guaranteed they possessed the 

765
00:36:53,520 --> 00:36:55,520
right to remain silent as 
evidence of guilt. 

766
00:36:55,600 --> 00:36:57,120
It would be fundamentally 
unfair. 

767
00:36:57,200 --> 00:36:59,560
Exactly. 
The prosecutor cannot refer to 

768
00:36:59,560 --> 00:37:02,640
the defendant's failure to tell 
police an exculpatory story 

769
00:37:02,920 --> 00:37:04,560
after they've been arrested and 
Mirandized. 

770
00:37:04,680 --> 00:37:07,120
But there is an impeachment 
exception to Doyle, isn't there?

771
00:37:07,240 --> 00:37:09,680
There is. 
If a defendant takes the stand 

772
00:37:09,680 --> 00:37:12,280
and testifies to some 
exculpatory version of events, 

773
00:37:12,600 --> 00:37:15,600
and then falsely claims during 
cross examination that they told

774
00:37:15,600 --> 00:37:19,480
the police that same story upon 
arrest, the prosecution can use 

775
00:37:19,480 --> 00:37:23,760
their prior silence to impeach. 
That's specific false claim. 

776
00:37:23,880 --> 00:37:26,480
So they can only impeach the 
claim that the story was told, 

777
00:37:26,480 --> 00:37:28,960
not use the silence itself as 
evidence of guilt. 

778
00:37:28,960 --> 00:37:31,440
It's the fine line exactly. 
And what about silence that 

779
00:37:31,440 --> 00:37:35,040
occurs before an arrest, before 
the state has guaranteed any 

780
00:37:35,040 --> 00:37:38,320
right to silence? 
That is pre arrest silence in 

781
00:37:38,320 --> 00:37:39,760
Michigan. 
It's governed by People V 

782
00:37:39,760 --> 00:37:42,560
Hackett. 
Pre arrest silence is admissible

783
00:37:42,560 --> 00:37:45,280
for impeachment purposes if the 
defendant chooses to testify. 

784
00:37:45,480 --> 00:37:47,880
But not as substantive evidence 
of GILP. 

785
00:37:47,920 --> 00:37:50,760
Correct, and this is a point of 
frequent confusion. 

786
00:37:51,480 --> 00:37:53,720
Pre arrest silence is not 
admissible as substantive 

787
00:37:53,720 --> 00:37:56,800
evidence to prove guilt. 
You can't use the failure to 

788
00:37:56,800 --> 00:37:59,640
deny an accusation to prove that
the accusation is true. 

789
00:38:00,080 --> 00:38:03,000
It can only be used to assess 
the defendants credibility as a 

790
00:38:03,000 --> 00:38:05,280
witness. 
So that distinction between 

791
00:38:05,280 --> 00:38:08,760
using silence for impeachment 
versus using it as substantive 

792
00:38:08,760 --> 00:38:12,720
evidence of guilt is vital. 
It protects the jury from 

793
00:38:12,760 --> 00:38:16,360
improperly inferring guilt just 
because the suspect didn't talk 

794
00:38:16,360 --> 00:38:19,360
to the police before they were 
formal charged or arrested. 

795
00:38:19,480 --> 00:38:23,040
Exactly. 
It forces the jury to use that 

796
00:38:23,040 --> 00:38:26,360
evidence only to assess 
credibility, which ensures that 

797
00:38:26,360 --> 00:38:29,800
the presumption of innocence 
remains intact unless 

798
00:38:29,880 --> 00:38:32,200
substantive evidence proves 
otherwise. 

799
00:38:32,600 --> 00:38:35,640
This has been a necessary and I 
think a very rigorous deep dive 

800
00:38:35,640 --> 00:38:37,920
into the 5th Amendment. 
We've covered the due process 

801
00:38:37,920 --> 00:38:41,360
floor, the Miranda prophylactic 
shield, the technical triggers 

802
00:38:41,360 --> 00:38:44,640
of custody and interrogation, 
the controversial standards for 

803
00:38:44,640 --> 00:38:47,680
waiver and invocation, and all 
those critical exceptions that 

804
00:38:47,680 --> 00:38:50,680
limit the exclusionary rule. 
The key take away for any 

805
00:38:50,680 --> 00:38:52,360
student walking into an exam is 
this. 

806
00:38:52,720 --> 00:38:55,480
Never ever collapse the three 
lines of cases. 

807
00:38:55,960 --> 00:38:58,080
You have due process, which is 
about voluntariness. 

808
00:38:58,240 --> 00:39:01,040
You have the 5th amendment which
is Miranda triggered by custody 

809
00:39:01,040 --> 00:39:03,600
plus interrogation, and you have
the 6th amendment which is 

810
00:39:03,600 --> 00:39:05,840
triggered by attachment. 
They have different triggers, 

811
00:39:05,840 --> 00:39:07,640
remedies and exceptions. 
You have to apply them 

812
00:39:07,640 --> 00:39:10,520
sequentially. 
Sequentially, was the statement 

813
00:39:10,520 --> 00:39:13,560
voluntary? 
If yes, was Miranda triggered? 

814
00:39:14,080 --> 00:39:17,320
If Miranda was violated, does 
one of those key exceptions, 

815
00:39:17,520 --> 00:39:20,720
Harris, Patan quarrels or a 
state recording statute, apply? 

816
00:39:21,040 --> 00:39:23,320
So we've discussed how the 
Supreme Court has carved out 

817
00:39:23,320 --> 00:39:26,880
these numerous exceptions to the
Miranda rule, allowing physical 

818
00:39:26,880 --> 00:39:30,320
fruits, allowing unwarned 
statements for impeachment, and 

819
00:39:30,320 --> 00:39:34,320
the recent ruling in Vega Viteco
limiting civil liability for 

820
00:39:34,320 --> 00:39:37,920
officers. 
Given all of that, what does the

821
00:39:37,920 --> 00:39:41,400
Miranda rule truly protect now, 
and how much of its original 

822
00:39:41,400 --> 00:39:44,360
temple, as Justice Harlan called
it, is still standing? 

823
00:39:44,440 --> 00:39:46,600
That is the enduring, 
provocative question, isn't it? 

824
00:39:46,920 --> 00:39:49,000
What we see today is a 
constitutional structure where 

825
00:39:49,000 --> 00:39:51,920
the remedy is very, very 
narrowly tailored. 

826
00:39:52,560 --> 00:39:55,200
Miranda still absolutely 
protects the prosecution's case 

827
00:39:55,200 --> 00:39:58,320
in chief from the admission of 
testimonial statements obtained 

828
00:39:58,320 --> 00:40:01,680
in violation of his procedure. 
It preserves that core principle

829
00:40:01,680 --> 00:40:03,840
that you cannot be compelled to 
speak against yourself. 

830
00:40:04,080 --> 00:40:07,920
But by limiting accountability 
through cases like Vega and 

831
00:40:07,920 --> 00:40:11,040
opening the door for physical 
fruits through Pantane, the 

832
00:40:11,040 --> 00:40:13,760
incentive structure for police 
compliance has undoubtedly 

833
00:40:13,760 --> 00:40:15,960
shifted. 
And listeners should really 

834
00:40:15,960 --> 00:40:18,720
consider this. 
If an officer knows the most 

835
00:40:18,720 --> 00:40:21,800
valuable evidence, the physical 
evidence is still admissible 

836
00:40:21,800 --> 00:40:24,640
regardless of a Miranda failure,
and that the failure itself 

837
00:40:24,640 --> 00:40:27,240
won't expose them to a civil 
lawsuit, what is the true 

838
00:40:27,240 --> 00:40:30,200
practical deterrent that's left?
The debate over the 

839
00:40:30,200 --> 00:40:33,160
effectiveness and the scope of 
the Miranda warning is far from 

840
00:40:33,160 --> 00:40:35,440
settled. 
All right, everyone welcome. 

841
00:40:35,560 --> 00:40:38,880
Let's dive into what is easily 
one of the most tested and 

842
00:40:38,880 --> 00:40:41,480
frankly one of the trickiest 
areas of criminal procedure 

843
00:40:41,640 --> 00:40:45,480
interrogations and confessions. 
Pay close attention because what

844
00:40:45,480 --> 00:40:48,880
we're going to build today is a 
complete rock solid analytical 

845
00:40:48,880 --> 00:40:51,160
framework. 
By the time we're done, you'll 

846
00:40:51,160 --> 00:40:54,760
be able to take any confession 
issue on an exam and just knock 

847
00:40:54,760 --> 00:40:57,120
it out of the park. 
So here's our road map for 

848
00:40:57,120 --> 00:40:58,760
today. 
Think of this as your attack 

849
00:40:58,760 --> 00:41:00,560
plan. 
We're going to go step by step, 

850
00:41:00,600 --> 00:41:03,240
starting with a big picture 
framework and then drilling down

851
00:41:03,240 --> 00:41:05,840
into each critical component. 
Let's get started. 

852
00:41:06,280 --> 00:41:08,760
So what professor gives you a 
fact pattern with a confession? 

853
00:41:09,200 --> 00:41:12,800
Where do you even begin? 
Well, the most important thing 

854
00:41:12,800 --> 00:41:16,400
to understand is that analyzing 
a confession is not a single 

855
00:41:16,400 --> 00:41:18,160
test. 
It's really more like an 

856
00:41:18,200 --> 00:41:19,920
obstacle course for the 
prosecution. 

857
00:41:20,480 --> 00:41:23,280
For that confession to be fully 
admissible to prove guilt, the 

858
00:41:23,280 --> 00:41:26,200
prosecutor has to clear a series
of distinct hurdles. 

859
00:41:26,720 --> 00:41:30,280
And this right here, this is 
your three-step checklist. 

860
00:41:30,640 --> 00:41:33,920
It is the absolute core of our 
entire analysis. 

861
00:41:34,440 --> 00:41:36,120
And let me be crystal clear 
about this. 

862
00:41:36,280 --> 00:41:39,960
You must analyze these in this 
specific order on an exam. 

863
00:41:40,280 --> 00:41:44,400
Don't jump straight to Miranda. 
That's a classic mistake. 1st 

864
00:41:44,400 --> 00:41:48,160
and always first, you ask, was 
the statement voluntary under 

865
00:41:48,160 --> 00:41:51,240
the due process clause? 
Only after that do we move on to

866
00:41:51,240 --> 00:41:53,200
Miranda. 
Then finally, we look at the 

867
00:41:53,200 --> 00:41:56,480
procedural stuff, get this order
down, and you are well on your 

868
00:41:56,480 --> 00:41:58,640
way. 
OK, let's tackle that first 

869
00:41:58,640 --> 00:42:02,360
hurdle, the voluntariness test. 
This is the bedrock, and it 

870
00:42:02,360 --> 00:42:04,680
comes from the due process 
clause of the Constitution. 

871
00:42:05,080 --> 00:42:07,640
The fundamental question we're 
asking here is pretty simple, 

872
00:42:07,640 --> 00:42:10,840
but it's incredibly profound. 
Was the defendant's will 

873
00:42:10,840 --> 00:42:14,520
overborne by police conduct? 
Or put another way, was this 

874
00:42:14,520 --> 00:42:17,880
confession a product of their 
own free will, or were they so 

875
00:42:17,880 --> 00:42:21,160
pressured, so coerced, that they
had no real choice but to talk? 

876
00:42:21,560 --> 00:42:23,600
So how does a court figure this 
out? 

877
00:42:23,760 --> 00:42:26,320
Well, they use a standard called
the totality of the 

878
00:42:26,320 --> 00:42:29,520
circumstances test. 
Now, this is not a mechanical 

879
00:42:29,520 --> 00:42:32,040
check the box exercise. 
It's the opposite. 

880
00:42:32,080 --> 00:42:34,280
It's a holistic, flexible 
inquiry. 

881
00:42:34,560 --> 00:42:36,960
The court is going to look at 
absolutely everything that 

882
00:42:36,960 --> 00:42:39,400
happened during that 
interrogation, the whole story 

883
00:42:39,560 --> 00:42:41,720
to get a feel for whether the 
police crossed a line. 

884
00:42:42,040 --> 00:42:45,280
And this slide, this is your 
issue spotting goldmine for an 

885
00:42:45,280 --> 00:42:47,240
exam. 
You need to be scanning your 

886
00:42:47,240 --> 00:42:48,920
fact pattern for these kinds of 
details. 

887
00:42:49,280 --> 00:42:50,760
We look at the interrogation 
itself. 

888
00:42:50,840 --> 00:42:52,560
Was it long? 
Were conditions harsh? 

889
00:42:52,720 --> 00:42:55,440
But we also look at the suspect.
You know, what was their age, 

890
00:42:55,440 --> 00:42:57,080
their education, their mental 
state? 

891
00:42:57,480 --> 00:42:59,320
And critically, what were the 
police doing? 

892
00:42:59,640 --> 00:43:01,320
Were they using psychological 
pressure? 

893
00:43:01,480 --> 00:43:03,640
Did they make promises of 
leniency, which was the issue in

894
00:43:03,640 --> 00:43:05,640
the Stewart case? 
Did they lie about the evidence,

895
00:43:05,640 --> 00:43:07,520
like in Perkins? 
Or was the person in a 

896
00:43:07,520 --> 00:43:10,160
particularly vulnerable setting,
like a hospital room, which was 

897
00:43:10,160 --> 00:43:13,160
the key fact in Lewinsky? 
You gather all these facts and 

898
00:43:13,160 --> 00:43:14,640
weigh them together to make your
argument. 

899
00:43:15,160 --> 00:43:17,600
OK, so let's say you've gone 
through your analysis and you've

900
00:43:17,600 --> 00:43:20,280
concluded, yes, this confession 
was voluntary. 

901
00:43:20,600 --> 00:43:22,320
So are we done? 
Is it admissible? 

902
00:43:22,440 --> 00:43:24,680
No way. 
And this is a huge trap students

903
00:43:24,680 --> 00:43:26,600
fall into. 
Even if a statement is 

904
00:43:26,600 --> 00:43:29,840
voluntary, we are not finished. 
We now have to clear that second

905
00:43:29,840 --> 00:43:32,040
major hurdle, the Miranda 
requirement. 

906
00:43:32,520 --> 00:43:35,040
So what triggers the need for 
those famous warnings? 

907
00:43:35,280 --> 00:43:38,840
It's this two-part test, and you
absolutely need both pieces. 

908
00:43:39,120 --> 00:43:42,680
Miranda only applies when you 
have custody and in irrigation. 

909
00:43:42,960 --> 00:43:45,840
If you only have one without the
other, Miranda is not an issue. 

910
00:43:46,080 --> 00:43:48,560
So for example, if a suspect is 
in custody but just 

911
00:43:48,560 --> 00:43:51,160
spontaneously blurts out a 
confession without being asked 

912
00:43:51,160 --> 00:43:53,240
anything, that's not a Miranda 
violation. 

913
00:43:53,320 --> 00:43:55,680
You've got to have both. 
Let's break down that first 

914
00:43:55,680 --> 00:43:59,320
part, custody. 
The test here is objective. 

915
00:43:59,560 --> 00:44:02,200
We don't care what the suspect 
was subjectively thinking, and 

916
00:44:02,200 --> 00:44:04,880
we don't care what the police 
officers secret intent was. 

917
00:44:05,240 --> 00:44:07,720
The only question is, from the 
perspective of a reasonable 

918
00:44:07,720 --> 00:44:10,680
person in the suspect's shoes, 
would they have felt free to 

919
00:44:10,680 --> 00:44:12,360
terminate the interview and 
leave? 

920
00:44:12,720 --> 00:44:15,800
If the answer is no, you're in 
custody for Miranda purposes. 

921
00:44:16,560 --> 00:44:19,800
Now for the second part, 
interrogation, and this is 

922
00:44:19,800 --> 00:44:23,600
another classic exam trap 
interrogation is not just asking

923
00:44:23,600 --> 00:44:25,640
direct questions like, did you 
do it? 

924
00:44:26,080 --> 00:44:29,360
The Supreme Court in the case of
Rhode Island V Innis expanded 

925
00:44:29,360 --> 00:44:32,120
the definition. 
It also includes the functional 

926
00:44:32,120 --> 00:44:34,760
equivalent of a question. 
So what's that? 

927
00:44:35,080 --> 00:44:38,200
It's any words or actions by the
police that they should know are

928
00:44:38,200 --> 00:44:40,520
reasonably likely to make the 
suspect say something 

929
00:44:40,520 --> 00:44:43,360
incriminating. 
The classic example is 2 cops 

930
00:44:43,360 --> 00:44:45,800
talking to each other in the 
back of the patrol car about how

931
00:44:45,800 --> 00:44:48,320
terrible it would be if the kid 
found the missing murder weapon.

932
00:44:48,560 --> 00:44:50,440
Knowing the suspect is in the 
backseat listening. 

933
00:44:50,560 --> 00:44:54,040
That's interrogation. 
OK, so we've got the substantive

934
00:44:54,040 --> 00:44:57,000
rules down, the voluntariness 
test, and the Miranda 

935
00:44:57,000 --> 00:45:00,040
requirement. 
Now let's shift gears. 

936
00:45:00,240 --> 00:45:02,040
How does this actually work in 
the real world? 

937
00:45:02,320 --> 00:45:05,400
How does a defense lawyer take 
these rules and use them to 

938
00:45:05,400 --> 00:45:09,280
challenge a confession in court?
This is the procedural battle. 

939
00:45:09,920 --> 00:45:13,640
The main event for this is a 
special pretrial hearing, often 

940
00:45:13,640 --> 00:45:15,840
called a Walker hearing in some 
states. 

941
00:45:16,320 --> 00:45:19,120
The key here is that this 
happens outside the presence of 

942
00:45:19,120 --> 00:45:21,440
the jury. 
The judge alone decides whether 

943
00:45:21,440 --> 00:45:23,600
the confession was obtained 
legally and whether it's 

944
00:45:23,600 --> 00:45:25,960
admissible. 
This is critical right? 

945
00:45:26,160 --> 00:45:28,720
We can't unring the bell. 
We don't want a jury hearing a 

946
00:45:28,720 --> 00:45:31,440
powerful confession only to be 
told later to disregard it. 

947
00:45:31,920 --> 00:45:34,840
So what happens at this hearing?
Well, the burden of proof is 

948
00:45:34,840 --> 00:45:37,800
squarely on the prosecution. 
They have to prove by a 

949
00:45:37,800 --> 00:45:39,960
preponderance of the evidence 
that the confession was 

950
00:45:39,960 --> 00:45:42,520
voluntary and that they complied
with Miranda. 

951
00:45:42,800 --> 00:45:45,160
And here's a huge procedural 
protection for the defendant. 

952
00:45:45,440 --> 00:45:48,120
They can take the stand and 
testify only about the 

953
00:45:48,120 --> 00:45:51,040
circumstances of the confession,
and if they do, they can't be 

954
00:45:51,040 --> 00:45:53,040
cross examined about whether 
they actually committed the 

955
00:45:53,040 --> 00:45:55,040
crime. 
This allows them to challenge 

956
00:45:55,040 --> 00:45:57,720
the confession without giving up
their right to remain silent at 

957
00:45:57,720 --> 00:46:00,440
the main trial. 
All right, now for our final 

958
00:46:00,440 --> 00:46:03,240
topic. 
This is a subtle but absolutely 

959
00:46:03,240 --> 00:46:05,960
critical point, and it's the 
kind of thing that separates AB 

960
00:46:06,000 --> 00:46:08,080
plus answer from an A on an 
exam. 

961
00:46:08,600 --> 00:46:11,960
Let's say the prosecution messes
up, They violate Miranda. 

962
00:46:12,120 --> 00:46:14,480
The confession gets suppressed. 
Does that mean that statement is

963
00:46:14,480 --> 00:46:16,440
completely useless to the 
prosecution? 

964
00:46:16,720 --> 00:46:19,120
Not so fast. 
So think about this for a 

965
00:46:19,120 --> 00:46:21,280
second. 
The whole point of suppressing 

966
00:46:21,280 --> 00:46:23,720
the statement is to deter police
misconduct. 

967
00:46:24,000 --> 00:46:26,800
But what if the defendant 
decides to take the stand at 

968
00:46:26,800 --> 00:46:29,920
trial and tells a story that's 
completely different from what 

969
00:46:29,920 --> 00:46:32,600
they told the police? 
Should the Miranda rule act as a

970
00:46:32,600 --> 00:46:35,800
license to commit perjury? 
That's the tension the Supreme 

971
00:46:35,800 --> 00:46:39,080
Court had to resolve. 
And this quote really gets to 

972
00:46:39,080 --> 00:46:41,400
the heart of the policy. 
The court is saying, look, 

973
00:46:41,680 --> 00:46:44,760
protecting A defendant's Fifth 
Amendment rights is incredibly 

974
00:46:44,760 --> 00:46:48,240
important, but the search for 
the truth is also important. 

975
00:46:48,600 --> 00:46:51,200
And we can't let the rules of 
evidence become a shield that 

976
00:46:51,200 --> 00:46:54,200
allows the defendant to lie on 
the witness stand without being 

977
00:46:54,200 --> 00:46:56,400
challenged. 
It's about the integrity of the 

978
00:46:56,400 --> 00:46:59,360
trial itself. 
And this brings us to the rule 

979
00:46:59,360 --> 00:47:01,360
from Harris V. 
New York, known as the 

980
00:47:01,360 --> 00:47:04,280
impeachment exception. 
And here's the bottom line. 

981
00:47:04,600 --> 00:47:07,680
A statement taken in violation 
of Miranda cannot be used in the

982
00:47:07,680 --> 00:47:10,600
prosecution's case in chief. 
That means they can't use it to 

983
00:47:10,600 --> 00:47:14,240
prove the defendant is guilty. 
But if the defendant chooses to 

984
00:47:14,240 --> 00:47:17,440
take the stand and testifies 
inconsistently with that earlier

985
00:47:17,440 --> 00:47:20,320
statement, the prosecution can 
absolutely use the suppressed 

986
00:47:20,320 --> 00:47:23,160
statement to impeach their 
credibility to show the jury, 

987
00:47:23,160 --> 00:47:25,920
hey, this person is telling two 
different stories, They might 

988
00:47:25,920 --> 00:47:28,480
not be trustworthy. 
So why is this such a big deal 

989
00:47:28,480 --> 00:47:30,880
for your exam? 
Because it's a perfect crossover

990
00:47:30,880 --> 00:47:33,400
question that blends criminal 
procedure with evidence. 

991
00:47:33,760 --> 00:47:36,680
It creates this fascinating and 
difficult strategic choice for 

992
00:47:36,680 --> 00:47:38,960
the defendant. 
Do I testify and tell my side of

993
00:47:38,960 --> 00:47:41,920
the story, but risk getting 
destroyed on cross examination 

994
00:47:41,920 --> 00:47:44,880
with my suppressed confession? 
Or do I stay silent and let the 

995
00:47:44,880 --> 00:47:46,520
prosecution story go 
unchallenged? 

996
00:47:47,040 --> 00:47:49,480
Professors love this stuff 
because it forces you to think 

997
00:47:49,480 --> 00:47:51,560
strategically about how 
different legal doctrines 

998
00:47:51,560 --> 00:47:53,720
intersect. 
If you can spot this issue and 

999
00:47:53,720 --> 00:47:55,600
analyze it correctly, you're 
going to score some serious 

1000
00:47:55,600 --> 00:47:55,880
point.