5th Amendment

Question 1

5th Amendment Privilege Against Compelled Self-Incrimination

Answer 1

Any person in any proceeding (civil or criminal) may refuse to answer a question if her response might incriminate herself

Privilege only available for compelled testimonial or communicative evidence:
* Testimonial: verbal or otherwise communicative evidence
-Lineups and physical evidence are not testimonial
* Compelled: elicited or induced
-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 5A privilege will apply

Does not apply to companies: a legal entity (e.g. corporation, partnership, LLC) has no 5A privilege against self-incrimination

Note: at trial, prosecution cannot comment on D’s silence or failure to testify

Question 2

5th Amendment Privilege Exceptions

Answer 2

Privilege does NOT apply if:
1) Grant of immunity: govt. can grant immunity from prosecution for self-incrimination testimony
2) Incrimination is not possible: e.g. statute of limitations has run
3) Extinguished by waive: D waives the privilege

Question 3

Miranda rights

Answer 3

-Those in custody must be informed of Miranda rights PRIOR to interrogation; otherwise subsequent statements are inadmissible
-An accused may terminate an interrogation at any time by invoking his right to remain silent or by requesting counsel

Question 4

Miranda rights-custodial interrogation

Answer 4

Custodial interrogation required: Miranda ONLY applies when accused is in custody and interrogated

• Custody: accused is not free to leave
• Interrogation: 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
  -Public safety exception: 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 5

Miranda warnings

Answer 5

Police must inform accused that he has:
1) A right to remain silent
2) Anything said can be used against him
3) He has a right to the presence of an attorney; and
4) One will be appointed if he cannot afford one

-Substantial compliance in reading warnings is sufficient
-Failure to give warnings implicates 5A NOT 6A

Question 6

5A-Invoking right to silence

Answer 6

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 rewarned of Miranda rights

Question 7

5A-Invoking right to counsel

Answer 7

Once accused requests counsel unambiguously, police must cease all questions on any topic
-Note: different than 6A right to counsel, which is offense-specific and only attaches once charges are filed
-If accused initiates communication, interrogation is allowed

Question 8

Waiving Miranda rights

Answer 8

Valid Miranda waiver must be
1) Knowingly and
2) Voluntarily made
-Burden is on prosecuation to prove this by preponderance of evidence

Question 9

14A and confessions

Answer 9

To be admissible, the 14A Due Process Clause requires that confessions be voluntary
-Voluntariness is assessed based on totality of circumstances, including suspect’s age, mental/physical condition, education, and the duration, manner, and setting of the interrogation

Question 10

Double jeopardy

Answer 10

A 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 11

Double jeopardy-Same offense

Answer 11

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

• Lesser included offense: once jeopardy attaches for the greater offense, D cannot be charged for a lesser included offense
• Examples:
  -Same offense: e.g. first offense requires proof of A B C; second offense requires proof of A B; second offense is barred
  -Different offense: e.g. first offense requires proff of A B; second offense requires proof of A C D
• Exceptions:
  -New evidence for greater offense becomes available
  -D can be tried for battery and subsequently tried for homicide if the victim later dies from the battery

Question 12

When jeopardy attaches

Answer 12

Start of trial generally required
* E.g. does not attach for charges or grand jury proceedings alone
* Jury trial: attaches once jury is impanelled and sworn in
* Bench trial: attaches once first witness is sworn in
* Pleas: attaches once court accepts a plea agreement

Question 13

Double jeopardy: exceptions permitting retrial

Answer 13

Once jeopardy has attached, retrial is still allowed if either:

a) Hung jury
b) 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
c) Retrial after a successful appeal by D
-D can be retried unless the basis for reversal was insufficient evidence to support a guilty verdict
d) D breaches a plea bargain agreement
e) Separate sovereigns:
-D can be tried for the same crime in different states
-D can be tried for the same crime in fed and state court