11. Fifth Amendment

Question 1

Miranda Rights:

Answer 1

♣ 1. SILENT: Right to remain silent

♣ 2. SAID: Anything said can be used against him

♣ 3. ATTORNEY: He has a right to the presence of an attorney

♣ 4. One will be appointed if he cannot afford one

Question 2

5th Amendment Privilege Against Self-Incrimination, exceptions:

Answer 2

♣ Privilege does not apply if:
• 1. Grant of immunity
• 2. Incrimination is not possible
• 3. Extinguished by waiver

Question 3

5th Amendment Privilege Against Self-Incrimination

Answer 3

Any person in any proceeding (civil/criminal) may refuse to answer question if response might incriminate herself.

Privilege only available for compelled testimonial or communicative evidence.

♣ TESTIMONIAL: verbal or otherwise communicative evidence
• Lineups and physical evidence not testimonial

♣ COMPELLED: elicited or induced
• Evidence produced from D’s free will is not compelled
• Lie detector tests, custodial interrogations are compelled and 5th amendment privilege will apply

Question 4

MIRANDA RIGHTS: Custodial interrogation required

Answer 4

♣ Custody: accused is not free to leave

♣ Interrogation: statements by police likely to elicit incriminating responses

• Unsolicited statements are not protected
• Routine questioning is not considered interrogation (e.g. during booking or probation interview)
• Public safety exception: police may interrogate suspects without Miranda warning if necessary for public safety

Question 5

Invoking Miranda Rights:

Answer 5

An accused may terminate an interrogation at any time by invoking his right to remain silent or by requesting counsel

o Invoking right to silence
♣ Police must cease all questions
• Only the accused can re-initiate dialogue
• Police may resume questions after a significant period concerning unrelated crimes, but D must be re-warned of Miranda rights

Question 6

Waiving Miranda Rights

Answer 6

♣ Waiver must be:
• 1. Knowing
• 2. Voluntary (must be a clear verbal waiver)
• 3. Intelligently made

♣ Burden is on prosecution to prove waiver was valid

Question 7

Invoking 5th Amendment Right to Counsel

Answer 7

♣ Police must cease all question regarding any topic

♣ If accused initiates communication, interrogation is allowed

Question 8

Double Jeopardy

Answer 8

D cannot be retried for the same offense once jeopardy has attached

SAME OFFENSE:
♣ Offenses are different if conviction for one offense requires proof of an element not included in the other offense
• Lesser included offense: once jeopardy attached for the greater offense, D cannot be charged for a lesser-included defense
♣ Exception:
• New evidence for greater offense becomes available
• D can be tried for battery and subsequently tried for homicide if the victim later dies from the battery.

o When jeopardy attaches
♣ Jury trial: once jury is impaneled and sworn in
♣ Bench trial: once first witness is sworn

Question 9

Double Jeopardy Exceptions:

Answer 9

♣ 1. Hung trial
♣ 2. Mistrial due to manifest necessity
♣ 3. Retrial after a successful appeal by D
♣ 4. D breaches a plea bargain agreement
♣ 5. Separate sovereign