5th Amendment

Question 1

5th Amendment

Self-Incrimination Clause

Answer 1

“The Great Privilege”

No person shall be compelled to be a witness against himself

Question 2

3 parts of a valid 5th Amendment Claim

Answer 2

1. Compulsion
2. Communication
3. Self-incrimination

Question 3

Compulsion

Answer 3

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

Question 4

Communication

Answer 4

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.

Question 5

Self-incrimination

Answer 5

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.

Question 6

The Cruel Trilemma

Answer 6

1) Self-Accusation: You can speak (incriminating yourself) or
2) Perjury: You can lie, or
3) Contempt: Say nothing (inviting inference of guilt)

Question 7

Interrogation

Answer 7

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

Question 8

Custody

Answer 8

Deprivation of his freedom of action in any significant way.

Question 9

Custodial Interrogation

Answer 9

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.

Question 10

Routine Booking Questions

Answer 10

Q&A necessary to secure biographical data to complete booking or administrative record keeping fall outside protections of Miranda v. Arizona.

Question 11

Waiver

Answer 11

The intentional abandonment or relinquishment of a known right or privilege

Question 12

Immunity

Answer 12

Supplements the privilege by eliminating the danger that the privilege is designed to protect you against.

2 Kinds:

• Use/Derivative Use Immunity
• Transactional Immunity

Question 13

Use/Derivative Use Immunity

Answer 13

(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

Question 14

Transactional Immunity

Answer 14

(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.

Question 15

Right to Counsel attaches…

Answer 15

Once defendant has been formally charged.

Question 16

Escobedo Rule

Answer 16

Individuals have the right to an attorney when an investigation goes beyond general inquiry and focuses on a particular suspect.

Question 17

“Investigation which has focused on the accused”

Answer 17

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.

Question 18

Miranda Warnings

Answer 18

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.

Question 19

Miranda Warnings are required…

Answer 19

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.

Question 20

Public Safety Exception to Miranda

Answer 20

Need for answers to questions in a situation posing a threat to public safety outweighs the need of prophylactic safeguards.

Question 21

Routine Traffic Stops Exception to Miranda

Answer 21

Miranda does fnot apply to roadside questioning of motorists detained pursuant to routine traffic stops.

Question 22

Are suppression of statements from evidence a license to commit perjury?

Answer 22

No.

Question 23

Voluntary but Unwarned Statements

Answer 23

inadmissible, except for impeachment purposes.

Question 24

Impeachment

Answer 24

may use inadmissible statements if contradictory to testimony at trial.

Question 25

Involuntary statements

Answer 25

Even in warned, are inadmissible, whether for impeachment or for any other purpose.

Question 26

Post-Arrest Silence

Answer 26

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.

Question 27

Miranda and Wong Sun

Answer 27

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”

Question 28

Voluntary-in-fact

Answer 28

spoke of own will

Question 29

Involuntary-in-fact

Answer 29

where there is coercion

Question 30

Voluntary-in-law

Answer 30

statements given after miranda rights

Question 31

involuntary-in-law

Answer 31

statements given w/o miranda rights, unwarned.