5th Amendment Flashcards
Fifth Amendment Privilege Against Self-Incrimination (Under Miranda)
The Fifth Amendment privilege against self incrimination protects a person from being compelled to be a witness against himself. The Supreme Court is Miranda v. Arizona extended this privilege to custodial interrogations by the police.
Miranda Warnings
Miranda warnings are required whenever a person is in custody and subject to interrogation by the police. The purpose of Miranda warnings is to offset the coercive atmosphere of a police dominated interrogation.
Miranda Warnings - Custody
CUSTODY
A person is in custody when his freedom of action is deprived in any significant way. In other words, the person is NOT free to leave. It is an objective standard. The most common example of custody is when the person is being held at the police station following his arrest.
Miranda Warnings - Interrogation
INTERROGATION
Interrogation refers to express questioning as well as any words or actions that the police should know are reasonably likely to elicit an incriminating response e.g. routine booking questions are exempt from Miranda’s coverage because they are NOT intended to elicit information for investigative purposes.
1) However, Miranda warnings are NOT required if the person questions is unaware that the interrogator is working for the police. The reason is because the warnings are intended to offset the coercive nature of police dominated interrogation. If the person doesn’t know that he is speaking to the police, there is no coercion to protect against.
2) Moreover, Miranda warnings are NOT required for routine traffic stops or Terry stops.
Statement Obtained in Violation of Miranda Can be Used to Impeach
Statements obtained in violation Miranda cannot be used in the prosecution’s case in chief but can be used to impeach the defendant at trial. The rationale is based on the need to prevent perjury and to assure the integrity of the trial.
1) Any statement NOT made in response to police questioning is considered spontaneous and admissible.
Physical Evidence is Admissible
The failure to give a suspect Miranda warnings does NOT require the suppression of physical evidence. Miranda itself made clear that its focus was the admissibility of statements. The admission of physical evidence (a weapon, drugs, the victims body) presents no risk that a ’s “statements” will be used against her at trial. Therefore, physical evidence discovered from a failure to provide Miranda warnings is admissible. The justification for this rule is that physical evidence is more probative and reliable than an unwarned confession.
Right to Remain Silent
If the D indicates, at any time, that he wishes to remain silent, the interrogation must cease. The assertion of this right must be clear and unequivocal and the police must “scrupulously honor” this request.
5th Amendment RIght to Counsel (Under Miranda)
If a D invokes his right to counsel, all questioning must cease unless the D initiates further questioning. Once counsel is requested, the police cannot badger a D into changing his mind. However, the police may re-open questioning if there has been a 14 day break in custody. The Fifth Amendment right to counsel is not offense specific.
Public Safety Exception
Under the public safety exception, an officer may question a suspect without Miranda warnings if the question is prompted by a concern for public safety. The rationale is that a concern for public safety must be paramount to adherence to the literal language of Miranda.
5th Amendment Privilege Against Self Incrimination (Testimonial Privilege)
The Fifth Amendment privilege against self-incrimination protects against forced confessions. However, this right only applies to testimonial evidence and not physical evidence. For instance a suspect may be compelled to make a recording of her voice, to put on a shirt, to provide a blood sample, to submit to fingerprinting, to write or speak for identification, to appear in court, or to make a particular gesture.
1) The privilege applies to a witness in any proceeding who is being compelled to give testimony that might incriminate her. A witness may refuse to answer any questions that might furnish a link in the chain of evidence needed to prosecute her.
2) Furthermore, a criminal D may NOT be called by the prosecution to take the stand. However, any other witness must take the stand assert the privilege as to each question asked.
The Difference between 5th and 6th
A criminal D has a right to counsel under both the Fifth and Sixth Amendment. The Fifth Amendment right to counsel under Miranda requires the to be in custody and subject to interrogation.
1) The Sixth Amendment right to counsel applies to all “critical stages” and attaches when formal charges are filed e.g. indictment or arraignment. The Sixth Amendment right to counsel is offense specific, meaning it only attaches to the crimes for which the D has been charged.
Act of Producing
A witness may be required to produce specific documents even though they contain incriminating information because the creation of those documents was NOT “compelled” within the meaning of the Fifth Amendment.
1) However, the “act of producing” documents in response to a subpoena may have a compelled testimonial aspect if the witness would have to admit that the papers existed, were in her possession, and were authentic.
2) Thus, the Fifth Amendment protects a witness from being compelled to disclose the existence of incriminating documents that the government is unable to describe with reasonable particularity.
