5th Amendment

Question 1

When is the 5th Amend Priv against Self-Incrimination

Answer 1

Only available for compelled testimonial or communicative evidence

Question 2

5th Amendment Privilege Against Self-Incrimination - Testimonial Definition

Answer 2

Verbal or otherwise communicative evidence

Lineups and physical evidence is NOT testimonial

Question 3

5th Amendment Privilege Against Self-Incrimination - Compelled Definition

Answer 3

Elicited or iduced

Evidence produced from D’s free will is not compelled (e.g. D’s diary is not compelled)

Lie detector tests, custodial interrogations, etc. are compelled and 5th Amend privilege will apply

Question 4

5th Amendment Privilege Against Self-Incrimination - Companies

Answer 4

Does not apply to companies

A legal entity (e.g. corporation, partnership, LLC) has no 5th Amend priv against self incrim

Question 5

5th Amendment Privilege Against Self-Incrimination - Exceptions (3)

Answer 5

Does not apply if:

1) Grant of Immunity: Govt. can grant immunity from prosecution for self-incriminating testimony

2) Incriminatrion is Not Possible: e.g. statute of limitations has run

3) Extinguished by Waiver: D waives the privilege

Question 6

Miranda Rights - General

Answer 6

Those in custody must be informed of Miranda rights prior to interrogation; otherwise subsequent statements are inadmissible

Failure to give implicates the 5th Amend, not the 6th

Question 7

Miranda Rights - Requirement

Answer 7

Only applies when accused is in custody and interrogated

Question 8

Miranda Rights - Custody Definition

Answer 8

Accused reasonably believes they are not free to leave

Question 9

Miranda Rights - Interrogation Definition

Answer 9

Statements by police likely to elicit incriminating responses

• Unsolicited statements are not protected

Note: routine questioning (e.g. during booking or a probation interview) is not considered interrogation

Question 10

Miranda Rights - Public Safety Exception

Answer 10

Police may interrogate suspects without giving Miranda warnings if necessary for public safety (e.g., D has info about a bomb that could go off in public)

Question 11

Invoking & Waiving Miranda Rights - General

Answer 11

An accused may terminate an interrogation at any time by invoking his right to remain silent or by requesting counsel

Question 12

Invoking & Waiving Miranda Rights - Invoking Right to Silence

Answer 12

Police must cease all questions

• Only the accused can re-initate dialogue
• Police may resume questions after a significant period concerning unrelated crimes, but D must be re-warned of Miranda rights

Question 13

Invoking & Waiving Miranda Rights - Invoking 5th Amend, Right to Counsel

Answer 13

Once accused requests counsel unambiguously, police must cease all questions on any topic

• Note: Different than 6th Amend right to counsel, which is offense-specific and only attaches once charges are filed
• If accused initiates communication, interrogation is allowed

Question 14

Invoking & Waiving Miranda Rights - Waiving Miranda Rights (2 Requirements)

Answer 14

Valid waiver must be:

1) knowingly and
2) voluntarily made

Burden is on prosecution to prove this by preponderance of the evidence

Question 15

Invoking & Waiving Miranda Rights - 14th Amend & Confessions

Answer 15

To be admissible, the 14th Amend. Due Process Clause requires that confessions be voluntary

Voluntariness is assessed based on totality of circumstances, including suspect’s age, mental/physcial condition, education, and the duration, manner, and setting of the interrogation

Question 16

Double Jeopardy - General Rule

Answer 16

D cannot be retried for the same offense once jeopardy has attached

• Arises when D is prosecuted with one crime and tried, then charged again based on the same offense

Question 17

Double Jeopardy - Same Offense

Answer 17

Offenses are different if convictions for one offense requires proof of an element not included in the other offense

Question 18

Double Jeopardy - Lesser Included Offense

Answer 18

Once jeopardy attaches for the greater offense, D cannot be charged for a lesser included offense

Question 19

Double Jeopardy - Same Offense Exceptions (2)

Answer 19

1) New evidence for greater offense becomes available

2) D can be tried for battery and subsequently tried for homicide if the victim later dies from the battery

Question 20

When Does Jeopardy Attach? - Jury Trial

Answer 20

Attaches once jury is impanelled and sworn in

Question 21

When Does Jeopardy Attach? - Bench Trial

Answer 21

Attaches once first witness is sworn in

Question 22

When Does Jeopardy Attach? - Pleas

Answer 22

Attaches once court accepts a plea agreement

Question 23

When doesn’t jeopardy attach?

Answer 23

Charges or grand jury proceedings

Question 24

Double Jeopardy: Exceptions Permitting Retrial - 5 Situations Where Retrial is Allowed

Answer 24

1) Hung Jury

2) Mistrial Due to Manifest Necessity: D may be retried when there is a manifest necessity to abort the original trial (e.g. D is too ill to continue) or if it is discontinued at D’s request on grounds not constituting an acquittal

3) Retrial after a successful appeal by D: D can be retried unless the basis for reversal was insufficient evidence to support a guilty verdict

4) D breaches a plea bargain agreement, or

5) Separate sovereigns: D can be tried for the same crime in different states or in fed and state court