5A: Miranda

Question 1

Fifth Amendment privilege

Answer 1

The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself.

But if someone is given immunity from prosecution for their statements, they cannot continue to refuse to answer on Fifth Amendment grounds.

Question 2

Fifth Amendment privilege: scope

Answer 2

Fifth Amendment privilege applies to natural persons.

it covers two categories of testimony:

(1) Testimonial evidence, which does not include physical evidence such as blood tests, fingerprints, or handwriting exemplars;
(2) Testimony that reasonably could be believed to be a link in the chain leading to prosecution or conviction.

Question 3

Custody

Answer 3

A person is in custody when she has been arrested or is not otherwise free to leave—e.g., when in the back of a police cruiser.

By contrast, traffic stops generally are not custodial.

Question 4

Interrogation

Answer 4

There is an interrogation for Miranda purposes if an official:

(1) asks questions she knows or should know will elicit a response; or
(2) or engages in other words or conduct that she knows or should know will elicit a response.

Interrogation, however, does not include:

• Volunteered statements; or
• Routine booking questions.

Question 5

Interrogation: voluntary statements

Answer 5

If a suspect makes a confession in response to officer conduct that is not likely to elicit an incriminating response, the confession is treated as a voluntarily made statement.

Question 6

Miranda warning

Answer 6

Before conducting custodial interrogations, the police must inform the suspect of her Miranda rights.

Interrogators must ask whether the suspect understands her rights:

• Although there is no magic words requirement, as what matters is that the substance of the warnings is communicated,
• The suspect must:(a) Understand the language in which the warning was given;
  (b) Be able to hear if the warning was given orally; and
  (c) Actually hear what was said.

Question 7

Invoking the right to remain silent

Answer 7

A suspect must affirmatively invoke the right—it is not enough to remain silent.

But once a suspect properly invokes the right, the interrogation must stop.

After a substantial period of time, the police can go back to the suspect, give warnings again, and seek to talk to her again.

Question 8

Invoking the right to counsel

Answer 8

A suspect must affirmatively invoke the right—e.g., “I want a lawyer.”

Upon proper invocation of the right, all question must stop until either:

(a) The lawyer is present; or
(b) The suspect affirmatively initiates contact with the police, as police generally cannot go back to the defendant.

The police, however, need not tell the suspect that a lawyer is trying to reach her.

Question 9

Public safety exception

Answer 9

When the public safety is at risk—e.g., if the subject is suspected of planting a ticking time bomb—the police do not have give Miranda warnings before questioning people.

Question 10

Fifth Amendment privilege: corporations

Answer 10

The privilege against self-incrimination only applies to individuals, not corporations.

Nor does the privilege extend to the custodian of corporate records, even if the records would incriminate the custodian personally.

In addition, voluntarily prepared business papers are not testimonial evidence protected by the privilege.

Question 11

Fifth Amendment privilege: waiver

Answer 11

The prosecution bears the burden of establishing that a defendant has waived his Miranda rights by a preponderance of the evidence.

A defendant’s waiver of her Miranda rights must be:

• knowing,
• voluntary, and
• intelligent.

There is no requirement that the waiver be in writing.

Question 12

Documents

Answer 12

Generally, the Fifth Amendment privilege against self-incrimination does not prevent law-enforcement officials, pursuant to a valid warrant, from searching for and seizing documents that would incriminate a person—even when those documents were prepared by the person.

The privilege may apply, however, if the act of producing the records constitutes self-incriminating testimony.

Question 13

Documents: self-incriminating act of production

Answer 13

Fifth Amendment privilege may apply, if the act of producing records constitutes self-incriminating testimony.

Question 14

Fifth Amendment privilege: sole proprietorships

Answer 14

Fifth Amendment privileges protect individuals even when their criminal conduct stems from operation of business as a sole proprietorship.

Question 15

Invoking the right to counsel: release from custody

Answer 15

The obligation for the police to honor the invocation of the Miranda right to counsel terminates 14 days after the suspect is released from custody.