5th Amendment Flashcards
5th Amendment
Self-Incrimination Clause
“The Great Privilege”
No person shall be compelled to be a witness against himself
3 parts of a valid 5th Amendment Claim
- Compulsion
- Communication
- Self-incrimination
Compulsion
The antithesis of free choice to admit, deny, or refuse to answer. The state cannot condition defendants to exercise their constitutional privilege by exaction of a price.
In Garrity the court defined as:
-Forfeit your livelihood or incriminate yourself
Communication
explicitly or implicitly relates to a factual assertion or disclosures of information.
Only applies to verbal communication and does not apply to the physical manner being used as evidence.
Self-incrimination
Gov’t seeking to punish an individual uses the simple expedience of compelling it from the individual’s own mouth. Demands the gov’t use its own labors to produce evidence.
The Cruel Trilemma
1) Self-Accusation: You can speak (incriminating yourself) or
2) Perjury: You can lie, or
3) Contempt: Say nothing (inviting inference of guilt)
Interrogation
When a compelled response requires a suspect to disclose the then-existing contents of his mind, he is being required to communicate an express or implied assertion of fact or belief.
The result is testimonial or communicative in nature
Custody
Deprivation of his freedom of action in any significant way.
Custodial Interrogation
Inherently coercive due to the interplay of two mutually reinforcing pressures: Custody + Interrogation
Police-dominated atmosphere subjugates defendants to the will of his examiner, insolation, trading on defendants insecurities, deception, antagonism, cjolery.
Routine Booking Questions
Q&A necessary to secure biographical data to complete booking or administrative record keeping fall outside protections of Miranda v. Arizona.
Waiver
The intentional abandonment or relinquishment of a known right or privilege
Immunity
Supplements the privilege by eliminating the danger that the privilege is designed to protect you against.
2 Kinds:
- Use/Derivative Use Immunity
- Transactional Immunity
Use/Derivative Use Immunity
(Equal to the 5th Amend. Shield AKA Co-extensive)
- Will not use any incrimination statement or the fruit of, later in prosecution
- Will not use any evidence derived from your compelled testimony in later prosecution.
- If you perjure yourself, all bets are off
Transactional Immunity
(Bigger Shield)
- Anything that is the subject of your testimony, can’t be prosecuted for. (Like amnesty or a pardon)
- If you perjure yourself, all bets are off.
- Provides greater protections than does the 5th amendment privilege. It’s broader than necessary to supplant the privilege.
Right to Counsel attaches…
Once defendant has been formally charged.
Escobedo Rule
Individuals have the right to an attorney when an investigation goes beyond general inquiry and focuses on a particular suspect.
“Investigation which has focused on the accused”
Happens when the process shifts from investigatory to accusatory, once the focus is on the defendant and the purpose to elicit a confession from him.
Miranda Warnings
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney and to have them represent you while being questioned. If you cannot afford an attorney once will be appointed to you. You may exercise these rights at any time.
Miranda Warnings are required…
prior to any questioning or its functional equivalent.
-giving these rights is so fundamental that we will not pause to inquire whether defendant was aware of them without a warning being given.
Public Safety Exception to Miranda
Need for answers to questions in a situation posing a threat to public safety outweighs the need of prophylactic safeguards.
Routine Traffic Stops Exception to Miranda
Miranda does fnot apply to roadside questioning of motorists detained pursuant to routine traffic stops.
Are suppression of statements from evidence a license to commit perjury?
No.
Voluntary but Unwarned Statements
inadmissible, except for impeachment purposes.
Impeachment
may use inadmissible statements if contradictory to testimony at trial.
Involuntary statements
Even in warned, are inadmissible, whether for impeachment or for any other purpose.
Post-Arrest Silence
Insolubly ambiguous. May be nothing more than the arrestee’s exercise of his Miranda Rights.
In Doyle, the defendant testified to a version of events and claims to have told police the same version upon arrest, the government may use defendants post-arrest silence to contradict him.
Miranda and Wong Sun
Unlike the 4th amendment, due process, or self-incrimination clause “with respect to mere failures to warn, nothing to deter. There is no reason to apply the “fruit of the poisonous tree” doctrine of Wong Sun”
Voluntary-in-fact
spoke of own will
Involuntary-in-fact
where there is coercion
Voluntary-in-law
statements given after miranda rights
involuntary-in-law
statements given w/o miranda rights, unwarned.
