Confessions & Self Incrimination - Elements

Question 1

What are the five rights of the Fifth Amendment

Answer 1

The Fifth Amendment:
1. protects against self-incrimination;
2. guarantees the right to a grand jury indictment for federal crimes;
3. prohibits double jeopardy;
4. protects against government takings of property without just compensation; AND
5. requires that due process of law be part of any proceeding that denies a citizen “life, liberty, or property.”

More info: Self-Incrimination

Question 2

What are the three requirements for invoking one’s privilege against self-incrimination?

Answer 2

A person may invoke the right against self-incrimination (i.e., “plead the Fifth”) when the elicited statement:

1. is testimonial in nature;
2. might be incriminating; AND
3. ** it can be used against you** (i.e., they do not have immunity).

Question 3

The 5^th Amendment privilege against self-incrimination only applies to what type of statements?

Answer 3

Compelled, testimonial statements.

Question 4

Under the 5^th Amendment, what is considered a compelled statement?

Answer 4

One that is elicited, coerced, or otherwise induced by a goverment actor (e.g. interrogations, polygraphs, things obtained pursuant to a subpoena).

Question 5

When is evidence considered testimonial?

Answer 5

• Testimonial evidence is considered any activity that is intended to assert or disclose information
• If the activity (e.g., speaking, writing, etc.) could be a substitute for in-court testimony, it is usually thought to be “testimonial” in nature

Remember: Whether evidence is considered “testimonial” is an issue that often arises in Confrontation Clause questions

Davis v. Washington

Question 6

Under the 5^th Amendment, what type of evidence is not considered testimonial?

Answer 6

• Observational evidence (e.g. lineups); and
• Physical evidence (urine samples, hair samples, handwriting samples)

Question 7

HYPO: If an accused asserts their right to remain silent after being issued Miranda warnings, may the prosecution use it against them at trial?

Answer 7

No. The prosecution may not use a defendant’s silence against them when the privilege was invoked AFTER being given Miranda warnings.

Remember: If a prosecutor makes such a comment, the court must determine if it should be disregarded as “harmless error”

Question 8

HYPO: If an accused assets their right to remain silent BEFORE being issued Miranda warnings, may the prosecution muse it against them at trial?

Answer 8

Yes. The prosecutor may comment on the defendant’s choice to remain silent prior to being given Miranda warnings while in custody.

Remember: The prosecutor may NOT comment on a defendant’s choice to remain silent AFTER having been issued Miranda warnings.

Question 9

Is testimonial evidence found pursuant to a lawful search admissible?

Answer 9

Yes.

Question 10

Can the government compel production of testimonial documents (e.g. journals)?

Answer 10

No

Question 11

How can D invoke their 5^th Amendment right against self-incrimination?

Answer 11

By refusing to take the stand

Question 12

How can a witness invoke their 5^th Amendment right on the stand?

Answer 12

By refusing to answer specific questions on the stand

Question 13

Can the prosecution bring D’s invocation of his 5^th Amendment right to the jury’s attention?

Answer 13

No, cannot comment on D’s refusal to take the stand.

⚠️ Note: Adverse inferences are not prohibited in civil cases.

Question 14

When does the 5^th Amendment privilege not apply?

Answer 14

1. Witness/D was granted immunity;
2. Privilege is waived; or
3. Incrimination is impossible (e.g. the statute of limitations has run)

Question 15

May a prosecutor comment on a defendant’s choice not to testify at trial?

Answer 15

No. The prosecution may not comment on a defendant’s decision not to testify at trial

Remember: The defendant may also request a jury instruction that jurors should not draw any adverse inferences from the choice not to testify

Question 16

May testimony be compelled from someone who has a grant of immunity?

Answer 16

Yes. Immunity extinguishes the privilege against self-incrimination and the wintness may be compelled to testify.

Question 17

Can the 5^th Amendment privilege against self-incrimination be waived?

Answer 17

Yes, D can waive his 5^th Amendment privilege by taking the stand. A witness can waive the privilege by answering questions.
⚠️ Note: Once D has taken the stand, he can not assert the privilege in response to specific questions.

Question 18

Define: testimonial/use immunity

Answer 18

Protects witnesses from their testimony being used against them in a future proceeding

⚠️ Exception: Does not apply if future prosecution is for perjury, giving a false statement, or otherwise failing to comply with the order

Question 19

Define: derivative use immunity

Answer 19

Prohibits police from using evidence derived from the witness’s testimony against him in a criminal proceeding. For the evidence to be admissible in a future trial, the police must prove it was derived from a source wholly independent of the testimony.

⚠️ Exception: Does not apply if future prosecution is for perjury, giving a false statement, or otherwise failing to comply with the order

Question 20

Define: transactional immunity

Answer 20

Also called “blanket immunity,” protects the witness from future prosecution for all crimes related to his or her testimony

Question 21

What are Miranda rights?

Answer 21

Holds that statements obtained while in custody as the result of direct questioning are inadmissible unless:
1. The police advise the suspect of their rights; and
2. The suspect freely waives those rights

⚠️ Remember: Custody + Questioning *REQUIRES* Warning + Waiver

Question 22

What is the purpose of Miranda warnings?

Answer 22

The requirement of issuing Miranda warnings is to ensure that anyone in a coercive police environment is given clear warnings of their rights so that any statement they choose to make is more likely to be voluntary
Remember: The Miranda warnings most commonly tested on the bar exam are the right to remain silent and the right to an attorney

Question 23

What is the purpose of the “voluntariness” requirement for confessions?

Answer 23

For a confession to be admissible in court, due process rquires that it was “voluntary” when made by the accused

Question 24

What does voluntary mean in the context of waiving one’s Miranda rights?

Answer 24

A waiver of Miranda rights is “voluntary” if it was given free from intimidation, coercion, or deception.

Question 25

What does knowing mean in the context of waiving one’s Miranda rights?

Answer 25

Knowing means that the defendant has full awareness of the nature of the rights and consequences of abandoning them.

Remember: Events occurring outside of the presence of a suspect have no bearing on their capacity to comprehend and knowingly relinquish their Miranda rights

Question 26

What is the legal standard for determining the “voluntariness” of a confession?

Answer 26

A court will examine the totality of the circumstances to determine whether “the confesson [was] the product of an essentially free and unconstrained choice.”

Remember: This analsys is subjective, meaning it looks to whether the defendant was speaking freely, based on factors such as age, level of education, and familiarity with the cirminal justice system. The cour twill also consider the conduct of the police, whether threats or coercive conduct was used.

Question 27

Which three options are available to a detainee after they have been given Miranda warnings?

Answer 27

1. take no action
2. voluntarily waive their Miranda rights; OR
3. assert one or more of their constitutional rights

Question 28

What are the two requirements for when Miranda warnings must be given?

Answer 28

Miranda warnings must be issued before the accused is subjected to “custodial interrogation” by police

1. Custody: A person is in custody when they reasonably believe they are not free to leave or terminate the encounter.
2. Interrogation: A person is subject to interrogation when the police knew or should have known their conduct was likely to elicit an incriminating response

Question 29

When is a suspect considered in “custody” for Miranda purposes?

Answer 29

When the an objectively reasonable person in that situation would not feel like they were free to terminate the encounter and leave.

Question 30

What factors help determine if a suspect is in custody for Miranda purposes?

Answer 30

Based on the totality of the circumstances. Courts look at:
1. The location of the interrogation
2. The length of the interrogation,
3. The circumstances of the interrogation (e.g. is the suspect locked in a room? Can the suspect come and go?)
4. Whether the suspect had a reasonable belief that he was in custody
5. The age of the suspect (a younger suspect is more likely to be considered in Miranda custody)

⚠️ Note: Incarceration is NOT categorically considered being in Miranda custody.

Question 31

What constitutes an interrogation under Miranda?

Answer 31

• Direct questioning; or
• Words or actions that a reasonable officer knows or should know will elicit an incriminating response

Question 32

What factors are weighed to assess whether a statement was coerced?

Answer 32

Depends based on the totality of the circumstances. Courts weigh:
1. Extent of deprivation of needs;
2. Location, duration, and physical conditions of the interrogation;
3. Use of force, or threat of force
4. Psychological pressure of the interrogation;
5. Use of deception or trickery;
6. D’s age, health, education, intelligence, gender, and cultural background; and
7. D’s experience with the criminal justice system

Question 33

What are the elements of a Miranda warning?

Answer 33

Police must inform D that he has:
1. A right to remain silent;
2. Anything said can be used against him in court;
3. A right to the presence of an attorney; and
4. If he cannot afford an attorney, one will be provided for him

Question 34

When must Miranda warnings be given?

Answer 34

Before the interrogation begins

Question 35

What are the two requirements for a detainee to properly invoke their right to SILENCE?

Answer 35

The detainee must
1. indicate a desire to remain silent at any time before or during interrogation; AND
2. the indication must be explicit, unambiguous, and unequivocal

See “Give me a lawyer, dawg” (or did he want a “lawyer dog”?) as an example of an ambigous request for an attorney which did not properly invoke the right.

Question 36

Does silence constitute invoking the right to remain silent?

Answer 36

No, D must make an unambiguous statement that he is asserting his right to remain silent

Question 37

What are the two requirements of an effective waiver of one’s Miranda rights?

Answer 37

An effective waiver must be:
1. knowing; AND
2. voluntary
Remember: In determining whether the waiver was effective courts look to the totality of the circumstances

Question 38

If a suspect makes an unequivocal request for an attorney and to remain silent, can the officers proceed with their interrogation?

Answer 38

No. All interrogation must stop until:
1. An attorney is present during the interrogation;
2. D re-initiates the contact with police; or
3. Two weeks have elapsed and the suspect is given a new Miranda warning

Question 39

What is the public safety exception to Miranda warnings?

Answer 39

An officer can question a suspect without violating Miranda for public safety concerns (e.g. to determine the location of a weapon, find accomplices, etc)

Question 40

Are Miranda warnings required if the suspect is speaking to an undercover officer or confidential informant?

Answer 40

No, deliberate elicitation (deliberately and intentionally obtaining incriminating information) is allowed without Miranda warnings in the context of confidential informants

Question 41

What is the effect of a failure to give Miranda warnings prior to obtaining a confession?

Answer 41

If the police fail to give warnings, usually any statement obtained will be inadmissible as evidence of the defendant’s guilt
Remember: Miranda warnings implicate the FIFTH Amendment, not the SIXTH Amendment

Question 42

Are statements taken in violation of Miranda rights admissible?

Answer 42

Yes, the statements can be used to impeach Defendant if he takes the stand. Involuntary statements, however, are inadmissible.

⚠️ Note: Statements cannot be used as direct evidence.

Question 43

Is physical evidence obtained in violation of Miranda admissible?

Answer 43

Yes, as long as the statement was not coerced.

Question 44

HYPO: If a defendant is not given Miranda warnings and confesses, but the police subsequently give the warnings and the defendant makes another confession, will the second confession be admissible?

Answer 44

It depends.
A subsequent confession made after Miranda warnings are provided is admissible if the original unwarned questioning seemed unplanned and the failure to provide Miranda warnings was inadvertent.

BUT the second confession will be inadmissible IF the facts indicate that the police were attempting to dilute the effect of the Miranda warnings (i.e., “question first, warn later.”)

Question 45

What is the evidentiary value of an involuntary confession?

Answer 45

An involuntary confession will be suppressed as a violation of the Due Process Clause of the Fourteenth Amendment

Remember: If an involuntary confession was erroneously admitted into evidence the harmless error test will be used to determine if the conviction should be overturned

Question 46

What is the evidentiary value of statements obtained during custodial interrogation in violation of Miranda?

Answer 46

Statements obtained during custodial interrogation in violation of Miranda are excluded from the prosecutor’s case-in-chief but may be used to impeach the defendant’s trial testimony

Question 47

Do Miranda rights need to be verbatim?

Answer 47

No, they just have to reasonably convey to suspect his rights