5th Amendment

Question 1

Fifth Amendment

Answer 1

Guarantees freedom against compelled self-incrimination
* Applicable to states through 14ADP

Requires that Miranda warnings be given to suspects prior to custodial interrogation by police
* Statements obtained in violation of this rule are generally inadmissible as substantive evidence

Question 2

Miranda Warnings

Answer 2

• Right to remain silent
• Anything D says can be used against them in court
• Right to an attorney
• If D cannot afford attorney, one can be appointed for him

Waiver: Can waive Fifth Amendment but waiver must be knowing and voluntary

Question 3

Custody

Answer 3

A person is in custody if:
(a) a reasonable person under the circumstances would feel free to leave
(b) whether environment contains the same inherently coercive pressures as a police stationhouse

The more constrained D is, the more likely he’s in “custody.”

Incarceration: interrogation of incarcerated individual doesn’t automatically mean he’s “in custody”
* Apply above test

Traffic Stops: Miranda warnings NOT needed for routine traffic stop
* Even though driver’s freedom is curtailed, he knows it’s (presumptively) temporary and brief so there is no coercion

Question 4

Interrogation

Answer 4

Any express questioning by police or any words/acts reasonably likely to elicit incriminating response

Exception: Spontaneous Statements
* If statement is spontaneous and NOT in response to interrogation, Miranda doesn’t apply

Question 5

Invocation: Right to Remain Silent and Right to an Attorney

Answer 5

If suspect invokes right to remain silent:
* Police must stop questioning but if they scrupulously honor the right, police can reinitiate questioning later

If suspect unambiguously invokes right to attorney:
* Police must STOP all questioning until 14 days after a “break in custody”
* If D’s statement is in violation of Fifth Amendment right to counsel, it can be used to impeach him IF he gave knowing and voluntary waiver

Fifth Amendment is not offense-specific.

Question 6

Informants- 5th Amendment

Answer 6

Miranda does NOT apply to interrogation by informant who D doesn’t know if working for police because there is no coercive environment.

Question 7

Double Jeopardy

(usually just criminal)

Answer 7

A person cannot be retried for the same offense (not the same offense when each crime requires proof of additional element that other doesn’t require)
* Jury trial: attaches when jury is empaneled
* Bench trial: attached when first witness sworn in

Exceptions:
* hung jury
* manifest necessity to abort original trial (ex. D has heart attack)
* successful appeal that reverses conviction unless the appeal was based on lack of evidence (bars subsequent trial for same or lesser included offense as well)
* breach of plea bargain
* D could be tried for two offenses in one trial but D elects to try them separately
* doesn’t apply to separate sovereigns