5th A Privilige Against Self-Incrimination Flashcards
5th Amendment Privilege Against Self-Incrimination & Miranda Rights
• Under the 5th Amendment Privilege Against Self- Incrimination, a person has a right to not incriminate oneself and MUST be given Miranda warnings during a custodial interrogation.
Miranda rights attach when there is a custodial interrogation of a suspect. If a person is not subject to a custodial interrogation, no Miranda warnings need to be given.
o A person is in custody when they reasonably believe they are not free to leave.
o A person is subject to interrogation when the police knew or should have known that their conduct was likely to elicit an incriminating response.
Miranda rights only protect statements or acts that are communicative or testimonial in nature. In order to be testimonial, an accused’s communication must (explicitly or implicitly) relate to a factual assertion or disclose information. Crying is NOT considered a testimonial communication. Additionally, Miranda rights DO NOT apply to any spontaneous statements made by a person.
A defendant/suspect’s statements made in violation of his Miranda rights are subject to the Exclusionary Rule.
List the Actual Miranda Warnings
Miranda warnings inform suspects that: (1) they have the right to remain silent; (2) anything they say can be used against them in court; (3) they have the right to talk to an attorney and have one present when they are questioned; AND (4) if they cannot afford an attorney, an attorney will be provided to them.
Miranda Warnings–Public Safety Exception
Under the Public Safety Exception, limited interrogation without Miranda warnings IS ALLOWED when police officers ask questions reasonably prompted by a concern for public safety OR the safety of the officer (i.e. to secure a weapon).
Invoking a Miranda Right
When invoking a Miranda right, it MUST be clear and unambiguous. For example, merely stating “I think I need a lawyer” or “maybe I should talk to a lawyer” is insufficient. The police have no obligation to stop questioning a suspect if the request is not clear and unambiguous.
Miranda–Effect of Invoking the Right to Remain Silent
Once the right to remain silent is invoked, the police may later question the suspect if they first scrupulously honor his right to remain silent. Additionally, if the right is invoked, the defendant’s silence CANNOT be commented on by the prosecution or be used to incriminate him at trial.
Miranda–Effect of Invoking the Right to Counsel
Once the right to counsel is invoked, the police must stop questioning the suspect on ANY crime until the suspect has spoken with an attorney. However, a custodial interrogation may be reinitiated if:
(1) the suspect has been re-advised of his Miranda rights;
(2) has provided a knowing and voluntary waiver; AND
(3) either (a) counsel is present, (b) the suspect initiates the communication, or (c) at least 14 days have passed since the suspect was released from custody.
A suspect’s statement that clearly indicates a willingness to speak about matters relating to the investigation is treated as an initiation of communication, but questions or comments relating to routine incidents of being in custody do not.
Waiver of Miranda Rights
A suspect may waive his Miranda rights. A valid waiver must be made: (1) voluntarily (it is the product of the defendant’s free will); AND (2) knowingly and intelligently (the defendant must understand the nature of the right being waived and the consequences for waiving it).
