The Criminal Docket


October 2007      

Volume II , Number 3 


This month's topics:


NUMBER: 2007-09 DATE: 08-24-07 BY: Devallis Rutledge TOPIC: Confessions

ISSUE: After a suspect's Sixth Amendment right to counsel has attached, but before it is asserted, can police obtain a valid waiver for an admissible statement?

     Statements deliberately elicited from a defendant after his Sixth Amendment right to counsel has attached and been asserted are generally inadmissible against him at trial. Massiah v. US (1964) 377 US 201, 206.
     "The Sixth Amendment right to counsel attaches at the time adversary judicial proceedings are initiated against the accused, such as when the defendant is indicted or arraigned." People v. Frye (1998) 18 Cal.4th 894, 987. (Emphases added.)
     A suspect asserts the Sixth Amendment right to counsel by retaining or requesting an attorney, or by having an attorney appointed to represent him. In the absence of Faretta waivers for self-representation, the court will "presume that the defendant requests the lawyer's services at every critical stage of the prosecution."  Michigan v. Jackson (1986) 475 US 625, 633.
     Following both attachment and assertion, courts cannot recognize as valid any waiver for police-initiated questioning if the defendant's attorney is not present. "[I]f police initiate interrogation after a defendant's assertion ... of his right to counsel, any waiver of defendant's right to counsel for that police-initiated interrogation is invalid." Id., at 636. (Emphasis added.)  "[O]nce this right to counsel has attached and been invoked, any subsequent waiver during a police-initiated ... interview is ineffective." McNeil v. Wisconsin (1991) 501 US 171, 175.
     However, if the Sixth Amendment right to counsel is attached but not yet asserted, police may obtain a waiver for an admissible statement, by using a Miranda advisement. In Patterson v. Illinois (1988) 487 US 285, the Supreme Court considered a Sixth Amendment issue where the defendant had been indicted but had not requested counsel during pre-arraignment questioning. He was Mirandized, gave a waiver and admitted his role in a killing. The court found his statement admissible under Massiah, because the waiver was sought and received before he had asserted his Sixth Amendment right to counsel:
 "We note as a matter of some significance that petitioner had not retained, or accepted by appointment, a lawyer to represent him at the time he was questioned by authorities. ... An accused who is admonished with the warnings prescribed by this Court in Miranda has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one." Id., at 290, fn. 3, 296. (Citations omitted.)
     See also, People v. Wader (1993) 5 Cal.4th 610, 654. ("Although in this case the Sixth Amendment right to counsel had attached in the capital case at the time of the interview, defendant fails to demonstrate that it had been invoked. ... Accordingly, no Sixth Amendment violation has been demonstrated." )
     See also, US v. Percy (9th Cir. 2001) 250 F.3d 720, 726-27. ("In the present case, Percy had not retained counsel, nor did he indicate that he wanted the assistance of counsel. In such circumstances, Patterson holds that Percy could knowingly and intelligently waive his Sixth Amendment right to counsel.")

BOTTOM LINE:  Police can take an admissible statement from a defendant after attachment but before assertion of the Sixth Amendment right to counsel by using a Miranda admonishment and waiver.

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NUMBER: 2007-10  DATE: 9-21-07  BY: Devallis Rutledge TOPIC:  Pretrial Issues

ISSUE: Can a criminal defendant use a subpena duces tecum to compel discovery directly from the investigating agency?

     Occasionally, defendants serve law enforcement agencies with an ex parte subpena duces tecum calling for the production of specified records, reports or other materials. The supporting affidavits sometimes assert that the agency is a “third party” as to the criminal case and is therefore not subject to the discovery statutes, or they contend that due process allows a defendant to ignore statutory discovery procedures. Cited authority tends to be pre-Proposition 115 cases, or cases involving third-party entities which are not law enforcement agencies, or a case rejecting a police department’s attempt to file a CCP § 170.6 objection. These cases are inapplicable. SDTs cannot be used to circumvent statutory discovery.
     Proposition 115 made both statutory and constitutional changes to the court-created discovery scheme previously in place. One provision established that prosecutorial disclosure is the exclusive means by which discovery may be obtained from the investigating agencies:

“...This chapter [10] shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in their duties. ...”
          California Penal Code, section 1054.5(a)
“The procedural mechanisms of the discovery statutory scheme (§ 1054 et. seq.) are exclusive—that is, the parties to a criminal proceeding may not employ discovery procedures other than those authorized by Chapter 10. (§ 1054.5(a).) ... Investigatory agencies that work on the case are considered part of the prosecution team and a defendant must use the discovery procedures set forth in Chapter 10 to obtain discovery from such agencies.”
People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1312-13
“The Santa Ana Police Department is not the detached third party the alternate defender imagines for his present purpose. ‘The Supreme Court has unambiguously assigned the duty to disclose solely and exclusively to the prosecution; those assisting the government’s case are no more than its agents.’ ... [T]he police are not third parties for these [discovery] purposes....”Walters v. Superior Court (2000) 80 Cal.App.4th 1074, 1077-80

     As for the contention that defendants have a constitutional right to ex parte discovery under Brady v. Maryland that is not subject to the statutory scheme, “There is no general constitutional right to discovery in a criminal case, and Brady did not create one.” Weatherford v. Bursey (1977) 429 US 545, 559; Pennsylvania v. Ritchie (1987) 480 US 39, 60; Gray v. Netherland (1996) 518 US 152, 168; accord, People v. Gonzales (1990) 51 Cal.3d 1179, 1258.

BOTTOM LINE: “Under the Criminal Discovery Statute, a subpoena duces tecum issued for purposes of discovery may not be lawfully served on the law enforcement agency that has investigated or prepared the case against a defendant.” Pipes & Gagen, California Criminal Discovery (3rd Ed. 2003) § 2:36, p. 244.

emphases in quoted material added.

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NUMBER:  2007-11  DATE:  10-01-07  BY: Devallis Rutledge  TOPIC: Confessions

ISSUE:    What is "custody" for Miranda purposes? What is not?

     Not all police interrogation of a criminal suspect is subject to Miranda. Unless the suspect is "in custody" (as defined by the Supreme Court) when interrogation occurs, there is no need for warnings and waiver to make a statement admissible. "Miranda did not reach investigative questioning of a person not in custody ... and it assuredly did not indicate that such questioning ought to be deemed inherently coercive." Schneckloth v. Bustamonte (1973) 412 US 218, 247. Rather, "It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation." Illinois v. Perkins (1990) 496 US 292, 297.
     The court has said "custody" includes both formal arrest and "the functional equivalent of formal arrest." Berkemer v. McCarty (1984) 468 US 420, 442. A person is in Miranda "custody" when s/he has been told, "You're under arrest," or when detained with arrest-like restraints. Found to be CUSTODY:
     •Stationhouse detention. People v. Aguilera (1996) 51 Cal.App.4th 1151, 1166-67.
     •Backseat Cage. US v. Hensley (9th Cir. 1993) 984 F2d 1040, 1042.
     •Gunpoint Interrogation. People v. Taylor (1986) 178 Cal.App.3d 217, 229.
     •Handcuffs. People v. Pilster (2006) 138 Cal.App.4th 1395, 1404-05.
     •Show of Force. Orozco v. Texas (1969) 394 US 324, 327.
     •Custodial Facility. Mathis v. US (1968) 391 US 1, 4 (state prison). But, sentenced prisoners not subjected to increased restraints are not necessarily in custody for all questioning. US v. Turner (9th Cir. 1994) 28 F3d 981, 983-84.
     Consensual encounters and ordinary detentions outside law enforcement facilities—and accomplished without weapons, cuffs or cages—are not custodial, without regard to the interrogating officer's suspicions or intent to arrest. NOT CUSTODY:
     •Consensual Encounter. People v. Bellomo (1990) 10 Cal.App.4th 195, 200.
     •Traffic Stop. Pennsylvania v. Bruder (1988) 488 US 9, 10-11.
     •Ped Stop. People v. Vasquez (1993) 14 Cal.App.4th 1158, 1163.
     •Focus of Suspicion. Stansbury v. California (1994) 511 US 318, 324.
     •PC to Arrest. People v. Valdivia (1986) 180 Cal.App.3d 657, 661.
     •Plan to Arrest. Berkemer v. McCarty (1984) 468 US 420, 442.
     •Meeting with PO. Minnesota v. Murphy (1984) 465 US 420, 430-33.
     •Voluntary Stationhouse Interview. Oregon v. Mathiason (1977) 429 US 492, 495; California v. Beheler (1983) 463 US 1121, 1125; Yarborough v. Alvarado (2004) 541 US 652, 661 (juve); People v. Ochoa (1998) 19 Cal.4th 353, 402-03 (polygraph exam).
     •Removal of Restraints. In re Joseph R. (1998) 65 Cal.App.4th 954, 961 (uncuffing and releasing from the cage).
     •Release from Custody. People v. Storm (2002) 28 Cal.4th 1007, 1026.
     When considering whether Miranda applies to police interrogation, neither the strength of the interrogating officer's suspicions, nor the likelihood that the suspect may later be arrested, nor restrictions less than the functional equivalent of formal arrest, will trigger the need for warnings and waiver.

BOTTOM LINE: When determining whether questioning is "custodial" under Miranda, "The ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." California v. Beheler (1983) 463 US 1121, 1125.
Bold emphases in quoted material added.

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NUMBER:  2007-12  DATE:  10-16-07  BY: Devallis Rutledge TOPIC:  Trial Practice

ISSUE: Can defense witnesses be threatened with prosecution for perjury or other crimes if they testify falsely or admit involvement in the charged offenses?
     When a potential defense witness is poised to alibi the defendant or to ride the beef, it may be tempting to warn the witness of the prospects of being prosecuted on account of his or her testimony. Like many temptations, this one should be resisted:

"The right to offer the testimony of in plain terms the right to present a defense....[T]he accused...has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law."
     Washington v. Texas
(1967) 388 US 14, 19

"Prosecutorial intimidation of, or interference with, defense witnesses violates the Sixth Amendment right to compel the attendance of witnesses and the Fourteenth Amendment right to due process."
     People v. Harris
(2006) 37 Cal.4th 310, 343
  "Governmental interference violative of a defendant's compulsory-process right includes, of course, the intimidation of defense witnesses by the prosecution. The forms that such prosecutorial misconduct may take are many and varied. They include, for example, statements to defense witnesses to the effect that they would be prosecuted for any crimes they reveal or commit in the course of their testimony. They also include statements to defense witnesses warning they would suffer untoward consequences in other cases if they were to testify on behalf of the defense. Finally, they include arresting a defense witness before he or other defense witnesses have given their testimony."

     In re Martin (1987) 44 Cal.3d 1, 30-31 (Citations omitted; vacating a murder conviction where the prosecutor had defendant's first witness arrested upon leaving the stand, causing other defense witnesses to refuse to testify.)
Unconstitutional interference with the right to present a defense was found in the following cases, for example:
     ● People v. Robinson (1983) 144 Cal.App.3d 962, 970 (DDA improperly warned a defense witness that "charges not only can be filed against you, but they will be filed, should you take the stand.")
     ● People v. Bryant (1984) 157 Cal.App.3d 582, 593 (DDA's threat to prosecute defense witness for perjury "was not only threatening and coercive but effectively drove the witness off the stand.")
     ● People v. Warren (1984) 161 Cal.App.3d 961, 973 ("[T]he witness was...threatened that if he testified he not only could but probably would be prosecuted by the district attorney's office....The district attorney's statements represent the type of threat or coercion which has been held to violate due process.")
     People v. Hill (1998) 17 Cal.4th 800, 835 (DDA's threat that she "will not hesitate to file a felony charge" of perjury against a potential defense witness "constitutes prosecutorial misconduct that violates a defendant's constitutional rights.")

BOTTOM LINE:  While provable crimes that witnesses admit or commit when testifying can of course be prosecuted, witnesses cannot be threatened with adverse consequences for giving testimony in support of the defense.

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This information was current as of publication date. It is not intended as legal advice. It is recommended that readers check for subsequent developments, and consult legal advisors to insure currency after publication.  Local policies and procedures regarding application should be observed.