Self-Incrimination
By Greg Rapkoch.
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A. Who bears the burden in a motion to suppress statements?
B. Does the privilege apply?
- State Compulsion—Did an action or circumstance attributable to the state threaten to undermine the privilege by overreaching in the form of force, constraint, coercion, or inducement?
- Testimonial Response—Was your client required to give a response that involved the communication of belief, knowledge or state of mind?
- Incriminating Response—Would either the substance of the response or the response itself furnish a link in the chain of evidence needed to prosecute a crime?
C. Were Miranda-like warnings required?
- Custody/Compelling Circumstances—Was your client in full custody or being detained under objectively compelling circumstances?
- Interrogation—Was your client subjected to express questioning, words or actions by the police that were reasonably likely to elicit an incriminating response?
- Sufficiency of the Warnings—Did the police communicate the requisite content to your client “completely and coherently” (timely warnings) or “accurately and effectively” (belated warnings)?
- Renewing Miranda Warnings—Under the totality of the circumstances, could a reasonable person believe that his or her rights had changed since the time the warnings were originally given?
D. Did your client unequivocally invoke the right to silence and/or counsel?
E. Did your client waive the right against self-incrimination?
- Knowing and Intelligent—Did your client make the decision to speak with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it?
- Voluntariness—Under the totality of the circumstances, were the statements the product of an essentially free, unconstrained and informed choice or was your client’s capacity for self-determination critically impaired?
- Method/Scope of Waiver—Has the state established a clear, unequivocal and decisive act demonstrating your client’s intent to waive his rights with respect to the specific statement at issue?
F. Have you identified all evidence that may be excluded at trial, retrial or on appeal?
G. At trial, did the State improperly highlight your client’s exercise of the right to silence?
- Improper Comment/Testimony—Did the prosecution comment upon, or elicit testimony in its case-in-chief concerning, your client’s decision to remain silent or invoke a constitutional right?
- Impeachment—Did the state deliberately infringe on your clients right against self-incrimination? If so, any resulting statements are inadmissible.
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