5) S+C: 5A Gen + Miranda

Question 1

5A PASI: const lang

Answer 1

5A “no person shall be compelled in a crim case to be a wit against himself”

Question 2

5A PASI: rule

Answer 2

any person called to testify in any proceeding has an absolute privilege to testify when:

1) has “real and substantial fear” that testimony will result in self-incrim or contribute to crim conviction in US AND
2) asserts priv by refusing to testify

Question 3

5A PASI: “proceedign”

Answer 3

trial, grand jury, admin hg, leg hg, etc

Question 4

5A PASI: crim conviction in US:

Answer 4

no protection from foreign prosecution

Question 5

5A PASI: scope

Answer 5

testimonial evidence only

NOT: blood/dna/lineup/handwriting samples/put on glove

Question 6

5A PASI: waiver

Answer 6

if you answer the qs you waived

warning + express waiver ONLY required when Miranda (custody)

Question 7

5A PASI: immunity: kinds

Answer 7

1) use/testimonial

2) transactional

Question 8

5A PASI: immunity: Result

Answer 8

gvt can compel you to testify if grants you immunity (even just use)

Question 9

use/testimonial immunity: def

Answer 9

can’t use wit’s testimony, or any evidence derived from that tmony, against the wit (but subsequent prosecution ok if evidence has no conneciton to tmony)

Question 10

transactional immunity: def

Answer 10

broader – prohibits any future prosecution of the wit for the transaction that is the subject of the testimony (regardless fo source of evidence)

Question 11

Miranda: rule

Answer 11

1) custodial interrogation
2) prosecution can’t use sts obtained in the case-in-chief (result)
UNLESS
3) police comply w Miranda warning + waiver requirement

rationale: custodial interrogation is inherently coercive

Question 12

Miranda: warning

Answer 12

must advise of right:

1) remain silent
2) anything say can be usd against in court
3) right to atty
4) if can’t afford atty, will be provided

Question 13

Miranda: custodial interrogation: def

Answer 13

custody AND interrogation

Question 14

custody: def

Answer 14

formal arrest OR
functional equivalent of formal arrest:
RP in suspect’s position would believe that freedom deprived to degree analogous w formal arrest

often: going tot he station

Question 15

custody: perspective

Answer 15

OBJECTIVE
from perspective of suspect

police’s subjective intentions don’t control

Question 16

Terry stop: custody?

Answer 16

no

but could escalate

Question 17

stop: when becomes custody?

Answer 17

when seems suspect likely to end up at stationfor booking

Question 18

interrogation: def

Answer 18

direct questioning OR

functional equivalent

Question 19

functional equivalent of direct questioning: def

Answer 19

words or actions a reasonable OFFICER would anticipate were likely to result in eliciting incriminating response

Question 20

functional equivalent of direct questioning: focus is on (+ quasi exception)

Answer 20

focuses on officer, not suspect

but, if police are aware of and exploit a particular vulnerability of the suspect, that is imputed to the “RO”

Question 21

interrogation: result

Answer 21

spontaneous/volunteered sts don’t implicate Miranda

Question 22

Miranda limits/exceptions

Answer 22

1) not poisonous tree
2) public safety
3) impeachment

Question 23

Miranda limit/exception: not poisonous tree: rule

Answer 23

Miranda violation does not result in exclusion of other evidence derived from the inadmissible st, bc Miranda violation does not trigger fruit of the poisonous tree

Question 24

Miranda limit/exception: public safety: def

Answer 24

if PRIMARY PURPOSE of police questioning is protecting police/public from imminent danger of serious harm:

then, answers admissible even w/o Miranda waiver

Question 25

Miranda limit/exception: impeachment: def

Answer 25

sts obtained from D in violation of Miranda right are admissible to impeach D's testimony at trial

Question 26

Miranda: waiver

Answer 26

must be knowing + voluntary

Question 27

Miranda waiver: requirements

Answer 27

dnn be in writing but must prove ack'd understanding of rights (silence not enough)

Question 28

Miranda waiver: silence?

Answer 28

silence is not a waiver, but is also not an invocation so police can keep asking you to waive

Question 29

Miranda waiver: "voluntary" vs voluntary DPC

Answer 29

valid Miranda waiver is strong evidence that the subsequent confession is voluntary BUT it is possible to comply w Miranda and still violate the due process voluntariness test

Question 30

Miranda: need to repeat

Answer 30

not bc of short break in interrogation not bc new police agent starts questioning yes if significant break in irog (or sometimes if invocation as below)

Question 31

Miranda: invocing: def

Answer 31

suspect must make UNEQUIVOCAL request for atty or to remain silent can do any time in irog

Question 32

Miranda: invocation: result

Answer 32

depends on if invoked right to silence or right to counsel

Question 33

Miranda: invocation: of right to silence: result

Answer 33

police must "scrupulously honor"

Question 34

Miranda: invocation: of right to silence: scrupulously honor: factors

Answer 34

``` factors: significant amount of time different location different officers different subject ```

Question 35

Miranda: invocation: of right to silence: reinitiate when?

Answer 35

olice can only resume questioning after: 1) significant pd of time AND 2) new Miranda waiver

Question 36

Miranda: invocation of right to counsel: result

Answer 36

questioning must cease immediately

Question 37

Miranda: invocation of right to counsel: reinitiate when?

Answer 37

1) L present OR 2) D reinitiates contact w police AND new M waiver OR 3) 2 weeks after suspect returned to normal envt police can reinitiate questioning but first must get fresh Miranda waiver

Question 38

Miranda: offense specific?

Answer 38

no! dnn to tell D what charged with but also means if invoked can't reinitiate AOBUT ANYTHING until circs met

Question 39

Miranda: effect on subsequent confessions

Answer 39

- -does not trigger fruit of poisonous tree doctrine | - -so normally does not taint subsequent confession even if same topic

Question 40

Miranda: effect on subsequent confessions: exception

Answer 40

police can't deliberately do "question first, warn later" tactic to bypass waiver will be considered invalid, both confessions will be inadmissible in prosecution case in chief (treated as one ongoing confession)

Question 41

things you CAN use Miranda violating sts for

Answer 41

``` (just not in prosecution's case in chief, but any of these are ok): to get a warrant for impeachment in cross-exam to find other evidence ```