The following facts were established during a hearing in a criminal case:
- The police arrested John for suspicion of robbery.
- He was arrested on Fifth Street as he was walking past the Shop-N-Save Mart.
- The victim identified John from a book of mug shots collected by the police.
- Immediately upon arrest John was advised of his Miranda rights-the right to remain silent and the right to an attorney.
- At the police station, John was placed in an interrogation room.
- A police officer interviewed John.
- John confirmed certain information, including his name, home address, work address, and a fifteen-year-old conviction for theft.
- All interrogation was stopped on John’s request.
- The police started interrogating John again one hour later without John’s attorney.
- John then confessed to the robbery.
The right to remain silent provides that all interrogation must stop if the suspect invokes the right to remain silent. The right to counsel provides that, if assistance of counsel is requested by a suspect, all interrogation must stop and cannot be reinitiated unless counsel is present. If John later claimed the confession violated his Miranda rights, what other fact or facts must John prove?
Explanation
Answer: D - That, before the interrogation was stopped, John requested the assistance of counsel. When the police reinitiated interrogation of John, his attorney was not present. Under the right to counsel, John’s Miranda right would have been violated if he had requested counsel and the interrogation was reinitiated without presence of his attorney. Under the right to counsel, interrogation cannot start again without presence of counsel. The key to the correct answer is recognizing that difference compared to the right to remain silent. Answer A is not correct because whether John committed the robbery is not at issue (his Miranda rights are at issue). Answer B is not correct because coercion is usually treated as a due process violation. Answer C is not correct because, even if John did invoke the right to remain silent, he did not reassert the right to remain silent when the questioning started again.
