5th Amendment

Question 1

5A Privilege Agaisnt 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

Question 2

Privilege only available for compelled testimoney

Answer 2

• Testimonial = verbal or otherwise communicative evidence
  
  • Lineups and physical evidence – not testmonial
• Compelled= elicited or induced
  
  • Evidence produced from D’s free will is not compelled e.g. D’s diary is not compelled
  • Lie dectors tests, custodial interrogations, etc. ae compelled and 5A privilege attaches.

Question 3

Privilege does not apply if:

Answer 3

1. Grant of immunity – govt. can grant immunity from prosecution for self-incriminating testimony
2. Incrimination is not possible– SOL
3. Extingusihed by waiver – D waives the privilege

Question 4

Miranda Rights

Answer 4

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

Question 5

Miranda

Custoial Interrogation Required

Answer 5

Miranda only applies when assued is in custody and interrogated:

1. Custody– assued is not free to leave
2. Interrogation – statements by police likely to elicit incriminating responses
   
   1. Unsolicited statements are not protected
   2. Routine questioning during booking is not considered interrogation
   3. Public Safey Exception
      
      1. Police may interrogate suspects without Miranda if necessary for public safety
         
         1. D knows where a bomb is about to go off.

Question 6

Miranda

Miranda Rights

Answer 6

Police must inform accused that he has

1. A right to remain silent
2. Anything said can be used agaisnt him
3. He has a right to the presence of an attorney, and
4. One will be appointed if he cannot afford one.

Substianital complicance is suffcient

Failure to give Miranda implicates 5th not 6th!

Question 7

Invoking and Waiving Miranda Rights

Answer 7

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

Question 8

Invoking right to silence

Answer 8

Police must cease all questions

• Only the accused an re-initiate dialogue
• Police may later question accused about unrelated crimes.

Question 9

Invoking 5A Right to Counsel

Answer 9

Police must cease all questions on any topic until counsel is provided and present.

• This is different than the 6A right to counsel, which is offense-specific and does not attach until charges have been filed.
• If accused initiates communication, interrogation is allowed.

Question 10

Waiving Miranda Rights

Answer 10

Waiver must be:

1. Knowing
2. Voluntary – must be clear verbal waiver
3. Intelligently made

Burden is on the prosecution to prove waiver was valid.

Question 11

Double Jeopardy

Answer 11

A D cannot be retried for the same offense once double jeopardy has attached; arises when a D charged with one crime is charged with another crime based on the same offense.

Question 12

Double Jeopardy

Same Offense

Answer 12

• Offenses are different if conviction for one offense requires proof of an element not included in the other offense.
• Different offense– first offense requires proof for A&B; second offense rquires proof of A,C, &D
• Same Offense – first offense requires proof of A,B,&C; second offense require proof of A&B
  
  • e.g. D cannt be charged for larceny after his trial begins for robbery from the same incident.

Question 13

Double Jeopardy

Same Offense

Exceptions

Answer 13

• 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 14

When jeopardy attaches

Answer 14

• Jury Trial – once jusy impannelled and sworn in
• Bench Trial– once first witness is sworn in
• Civil Trial– jeopardy not applicable

Question 15

Double Jeopardy Exceptions Permitting Retrial

Answer 15

Once jeopardy has attached, retrial is still allowed if:

1. Hung jury
2. Mistrial due to manifest necessary
   
   1. Occurs when D’s origional trial is aborted for some reason (D is too ill)
3. Retrial after a successful appeal by D
   
   1. D can be retried unless the basis for reversal as insufficent evidence to support a guility plea
4. D breaches a plea bargain agreement
5. Separate socvereigns
   
   1. D can be tried for the same crime in different states
   2. D can be tried for the same crime in federal and state court.