5th Amendment Flashcards
Scope of the Fifth Amendment
No person shall be compelled in any criminal case to be a witness against himself and shall not be deprived of life, liberty, or property without due process of the law
Requirements
Individuals only
- Testimonials: Only testimonial evidence is protected by the 5th amendment. (Shmerber / Wade). Generally does not include: fingerprints, photos, DNA, line-up, hair
Compelled
- The testimony must be compelled including adverse inferences at trial (Griffin) or at sentencing (Mitchell).
- Hard choices do not rise to compulsion. Loss of a benefit does not equal compulsion. Torture or adverse inferences do equal compulsion.
Possibility of criminal incrimination
- Only applies to criminal liability
Does the 5th A protect forms of ID?
There must be a real and appreciable fear that the information could be used against a person, providing your ID does not violate 5th A. (Hiibel)
Does the 5th A protect documents?
There is no 5th A right to documents themselves, limited to the person it will incriminate. However, transactional immunity and use immunity can override 5th A right. (Fisher)
- Transactional immunity: protection against future prosecution (Kastigar)
- Use immunity: protection against use of evidence or evidence derived from it in prosecution. (Kastigar)
Prosecution has affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony
Due Process - Voluntariness - Totality of the circumstances approach - Physical Force
Confessions need to be voluntary and cannot be coerced through physical force (Brown)
Due Process - Voluntariness - Totality of the circumstances approach - Threats of Violence
A threat of violence is enough to make a confession involuntary. (Arizona v. Fulminante)
Due Process - Voluntariness - Totality of the circumstances approach - Psychological Coercion
A person can be overborne by pressures of fatigue and false sympathy. (Spano) Factors this court considered: Long questioning (overnight), young and uneducated person being questioned, police knew of attorney and denied access
Due Process - Voluntariness - Totality of the circumstances approach - Deception
A confession is coerced if the police use deception to make a person believe something bad will happen to them. (Lynumn)
Due Process - Voluntariness - Totality of the circumstances approach - Mental Condition
Mental condition alone is not enough to make a confession involuntary. (Connelly)
Miranda Rights
Miranda rights in general: Miranda warnings are an absolute prerequisite that a person has the right to remain silent, anything a person says can be used against them, a person has the right to counsel during an interrogation, and if they cannot afford counsel, one will be appointed.
Miranda Rights - When do the rights attach
Applies to people in custody and being interrogated, however there is no temporal requirement. Meaning, the police do not need to read Miranda rights right at detention. But they do have to read Miranda rights before an interrogation. Voluntary* statements are admissible. (Dickerson)
* The legislature cannot overturn this because SCOTUS interprets the constitution and Miranda is a constitutional question.
Miranda Rights - Custodial Interrogations
Custodial interrogation is determined by an objective standard of the circumstances, not the subjective view of the suspect or police, and typically will be an interrogation when there is a restriction on a person’s freedom as to render the person “in custody.” (Mathaison) Thus, a court will consider things like the location of the questioning (was it at home or at a police station?), whether the police officer had their guns drawn, length of questioning, the suspect’s apparent youth, and whether the suspect was told they could not leave.
- An interview with an IRS agent is not an interrogation (Beckwith)
- Probation: Meeting with a probation officer is not custodial (Murphy)
- Age of suspect is relevant to decide whether D is in custody for Miranda purposes (JDB v. NC)
- Traffic stops are not custodial: During a seizure like a terry stop no Miranda rights are required. But they must be given prior to an interrogation. (Berkemer)
Miranda Rights - What is an interrogation?
An interrogation can be found by either (1) express questioning or (2) the functional equivalent of express questioning, which means any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response (Innis). However, Miranda does not apply to spontaneous statements not mad in response to an interrogation or routine booking questions.
- Ex of “functional equivalent”: Police officers are looking for someone who was a suspect of a burglary at gunpoint, patrolman sees the suspect that meets the description. By the time the suspect is taken into custody he is Mirandized three times and during the transport the police talk with each other (while suspect in back seat) about how the kids in the area might get hurt with gun. Suspect takes the police to find gun on own will after hearing that but had told the police he wanted to speak to counsel earlier in the night, so it is a little sus that the police started this convo. Was this an interrogation?
- The police can use tactics and ploys to get people to speak without creating an interrogation or functional equivalent. Letting a person talk to their spouse while the police watch on is not an interrogation – spontaneous statement. (Mauro)
- If a suspect is not aware he is speaking to a police officer and the suspect voluntarily (spontaneous statement) gives up information the police do not have to read Miranda rights. (Perkins)
- Can ask: Is this a police dominated environment?
Miranda Rights - What is required?
Before there is a custodial interrogation the person must be warned of their Miranda rights, however there are no magic words and exact language is not required. (Duckworth) Failure to advise a suspect of his right to appointed counsel may be found to be a harmless error. (Tucker)
Miranda Rights - Suppression of Evidence
- If the police obtain a confession from a detainee without giving him Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the “question first, warn later” nature of the questioning was intentional. However, the subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure was inadvertent. (Seibert and Elstad)
- Physical evidence will always be admitted even if there is a Miranda violation. (Patane)
Miranda Rights - Waivers
A suspect can waive their Miranda rights through a written waiver, a verbal waiver, or an implicit waiver such as if you start speaking (need to explicitly say I want to stay silent).
- An implied waiver is allowed if the suspect voluntarily makes the statement in a knowingly and intelligent way. (Butler) To determine if a waiver is knowing, intelligent, and voluntary the court can look to age, experience, education, intelligence, and background. (Fare v. Michael)
- A person only needs to know the rights provided in Miranda warnings. (Burbine)
- Waivers are valid when you don’t know what the investigation is about. (Spring v. Colorado)
- To use Miranda rights a suspect must state that they want to remain silent. (Berghuis)
- Pre-custodial silence can be used as evidence of a guilt in subsequent prosecution. (Salinas v. Texas)
- The police can question about a different topic without violating Miranda rights if they give a fresh warning and it is a different subject – if the police “scrupulously honored” the Miranda right. (Mosely)
Passage of time, questioning about a different crime, questioning by different officers, different locations of questioning.
