(Answer key, including reasoning errors and commons mistakes, below the jump.)

John Paul goes to the police station to complain about the noise his neighbors make at night.  Unbeknownst to John, there is a valid warrant out for his arrest, for stealing a Dodge Viper.  When John shows up at the station, the officers politely tell him to sit in an interrogation room, and they offer him some water and cookies.  One of the officers says to him, “busy day?”  John replies, “Not doing much, just driving around in my Dodge Viper, but I walked here.”  At that point, several other officers enter the room and tell John he is under arrest for stealing a Dodge Viper.  John is read his Miranda rights.  The police officers also have John read back his rights and sign a form saying that he understands his rights.  The police then say to John, “So, you’ve been driving around in a Dodge Viper.  That’s exactly the car that your cousin Ringo claims you stole from him.”  John says, “yeah, I guess I admit it.  I took Ringo’s car.  It’s parked outside my girlfriend’s house.”

The police would like to admit the following pieces of evidence at John Paul’s trial:  (1) the statement made before John was Mirandized, (2) the statement John made after he was Mirandized, (3) the Dodge Viper, that police located based on John’s statement, and (4) John’s handwriting from signing the Miranda form (there were papers left in the Dodge Viper that match John’s handwriting).

Analyze the Fifth Amendment issues, discussing which of the evidence can likely come in at trial.  Show your work – go through the steps systematically.  It’s likely best to analyze the pieces of evidence in the order presented in this hypo question.

• The statement John made before he was Mirandized likely can come in.

1. Although he was not Mirandized, John was likely not yet in custody. John voluntarily came to the police station.  Perhaps he was in custody because of the interrogation room setting, but a reasonable person would think he was free to leave at the time he gave the first statement.  John was offered cookies and treated politely. We don’t have the usual problem of compulsion that necessitates the prophylactic Miranda right – although one complicating factor is that there is a warrant out for John’s arrest.
2. The question “Busy day,” might be sufficient to be an interrogation, as it is an explicit question, one of the criteria in Rhode Island v. Innis. However, the question was not exactly pointed and not reasonable likely to elicit incriminating information (although perhaps intended to do so). Regardless, John was likely not in custody and was therefore not compelled to speak so didn’t need to be read his Miranda
   1. Note– the rule about focusing in on a suspect is relevant to 6^th A rights, not 5^th A rights, and the rule about not questioning suspects without an attorney present applies to indictments, not arrests — and, again, is a 6^th A issue, not a 5^th A issue. Make sure you analyze constitutional rights separately and do not conflate their analysis.  Keep your analysis precise and distinct because different amendments have different purposes and therefore require different rules.

• The statement after John was Mirandized likely also can come in.
  1. At this point, John was in custody and interrogated, but he read and understood his Miranda rights and when we began to speak, he likely waived them. He never invoked his rights, and, in most cases, speaking is a valid waiver.
     1. A common mistake here is to conflate invocation and waiver. These are two separate concepts.  Just because a defendant does not invoke, does not mean he waives his Miranda rights.  It is not true that a suspect either invokes or waives (if that were true, these would be one concept, not two – and it would be on or off for invocation).  If a suspect does not invoke, questioning can continue, but if he remains silent, that silence cannot be used against him because he has not waived his rights.  So, there are several options:  (1) you can invoke, and questions must cease for a bit.  (2) You can not invoke AND not waive, and there your silence can’t be used against you, because you have not waived.  Or, (3) you can not invoke and then waive, and your statements can be used against you.  Here, however, there was both a lack of invocation and a waiver through speaking.
        1. The requirement of assertion is for general Fifth Amendment rights, not the Miranda context, where the government must show waiver. In the Miranda context, the default is a lack of waiver, but outside of a custodial interrogation, the defendant must affirmatively assert.
     2. There is a complicating factor with the valid waiver, however. Police used the earlier confession to elicit information from John, calling the ability to enjoy his Miranda rights into question.
        1. That said, this case is distinguishable from a case like Seibert where a prior unMirandized confession is used to secure a later confession, as a tactic to circumvent Miranda. Here, the prior confession was not the product of a Miranda violation. The Court in Seibert was concerned with police purposely using an un-Mirandized confession to negate the Miranda rights later afforded to defendants, but here, the first confession didn’t need to be Mirandized, so a good case can be made that police are permitted to use voluntary statements a defendant made prior once Miranda rights have been read and understood.
        2. On the other hand, a court might hold that, because the police used the first statement, which happened so recently, to secure the confession, that the Miranda warnings were infective in allowing John to make a meaningful choice.

• The Dodge Viper can come in.
  1. Even if there was a Miranda violation (which there likely isn’t), the fruit of the poisonous tree doctrine does not apply to Miranda under Patane. The Dodge Viper is physical evidence produced from a confession, not the confession itself.
  2. Note: the inevitable discovery doctrine is probably inapplicable here because police may not have known where the car was without John’s statement.  More importantly, this doctrine is irrelevant, as FOPT does not apply to Miranda violations.  Note- FOPT does apply to general Fifth Amendment violations, just not Miranda
  3. Also note: The fact that the car is not testimonial doesn’t matter.  Production of the car isn’t itself a Fifth Amendment violation, but it is the fruit of a Miranda violation—and it therefore would be excluded except that the fruit of the poisonous tree doctrine does not apply to Miranda.

• The handwriting sample can also come in.
  1. Even if there was a Miranda violation (which there likely isn’t), the handwriting is not testimonial. For there to be a Fifth A issue, a statement must be compelled, incriminating, and testimonial.
  2. The handwriting is offered for the physical characteristics of the defendant’s handwriting, not for the purpose of invading the sanctity of defendant’s mind. Handwriting does not put the defendant in the cruel trilemma that implicates Fifth Amendment protections. (Gilbert v. California)  Of course, if the contents of the handwriting revealed something about John’s mind, that would be testimonial, but just what the handwriting looks like is considered a physical attribute of John’s.
  3. Note: the handwriting is absolutely incriminating; it is just non-testimonial. These are separate elements.  Diaries are also testimonial; they are just not compelled at the time they are written.  Make sure to keep the elements separate.