5th Amendment

Question 1

5A Analysis

Answer 1

Miranda test + voluntariness test (determines scope of exclusion)

Question 2

Miranda Analysis:

(1) Custody + Interrogation

Answer 2

(a) Custody = 4A arrest (stops not privileged) objectively reas person test (free to leave or not)
(i) JDB: officer must account for age if age known to officer or obj’ly apparent to reas officer

(b) Interrogation = express questioning or functional equivalent [words/actions that police should know are reasonably likely to elicit an incriminating response] (Innis: special needs school/buried gun)
(i) Perkins: undercover agent can ask questions in order to obtain incriminating ev w/o warnings as long as statements are voluntary (false friend doctrine)
(ii) Muniz: routine booking/administrative purpose exception (asking name, address doesn’t count)

Question 3

Miranda Analysis:

2) Warnings given (content analysisaccurate, fair, deceptive?

Answer 3

(a) right to remain silent
(b) anything said can/will be used against in court;
(c) right to consult with attorney and have attorney present during questioning
(d) if unable to retain, one will be appointed

Question 4

Miranda Analysis:

(3) Invocation

Answer 4

(a) Davis: must use unequivocal language for right to counsel/silence (see Thompkins implied waiver)

(b) Right to Counsel?
(i) Edwards: Q’ing must cease! [unless suspect re-initatiates] (Shatzer: expires 14 days out of custody)

(c) Right to Silence?
(i) Mosley: invocation of silence rightq’ing must cease, but can begin again as long as invocation was scrupulously honored:
1. passage of time?
2. privacy?
3. dif topic?
4. fresh warnings?

Question 5

Miranda Analysis:

(4) Waiver

Answer 5

(At trial, burden is on government to show suspect waived rights)

(i) Voluntary? product of free/deliberate choice rather than intimidation, coercion, or deception
(ii) Knowing/intelligent?full awareness of both the right being abandoned and consequences/gravity
1. Burbine: misinforming counsel about interrogation and not telling suspectdoesn’t taint “knowing/intelligent” prong (state of mind of police = irrelevant waiver inquiry)
(b) Thompkins: silence =/= invocationsilence invocation must be unequivocallack of invocation = can question until implied waiver by talking

Question 6

Miranda Analysis:

(5) Scope of Exclusion

Answer 6

(i) Public emergency exception?

Question 7

Miranda Analysis:

(6) Miranda violation?

Answer 7

(i) Patene: doesn’t require exclusion of physical fruits (5A only protects testimony)

Question 8

Voluntariness test

Answer 8

(if not coerced (even w/o warnings)subsequent statements not excluded)

(i) Elstad: No FOPT excluded for mere Miranda violation (only unwarned statement excluded)

(ii) Seibert: 2d stage q’ing only valid if warnings, when given, were fully protective of 5A privilege:
1. completeness/details of Qs in pre-warning round of Qs
2. overlapping content of rounds
3. timing/setting of both rounds
4. continuity of police personnel
5. degree to which 2d round was treated as a continuation of the 1st