Crim L - 5A

Question 1

5A Generally

Answer 1

Privilege against self-incrimination protects against government-coerced confessions

Question 2

5A: When may D refuse to answer a question

Answer 2

Whenever his response might result in self-incrimination or reasonable possibility of contributing to his criminal conviction

Question 3

5A: What must D do for questioning to stop

Answer 3

D must assert right to silence or right to counsel

Question 4

What type of evidence is governed by 5A

Answer 4

Compelled testimonial evidence

Physical evidence not protected e.g. body, voice sample, line up, handwriting

Question 5

What types of voluntary statements after Miranda warning may be admissible as fruit

Answer 5

Independent source
Inevitable discovery
Intervening act by D
Impeachment

Question 6

Ways to eliminate privilege against self-incrimination and compel answers

Answer 6

Use and derivative immunity: testimony and derived evidence can’t be used against D
Transactional immunity: complete protection from prosecution on related crimes for self-incriminating testimony
Extinguish by waiver: D waives and takes the stand
No possibility of incrimination - e.g. statute of limitation runs out

Question 7

For a self-incriminating statement to be admissible under 14 A DPC, it must be

Answer 7

Free and voluntary as determined by TOTC (not motivated by police coercion or official pressure)

Question 8

When must Miranda warning be given to enable D’s statement to be admissible under 5A privilege against self-incrimination (in P’s case or to establish PC)

Answer 8

Before any custodial interrogation.

No exceptions even for minor crimes

Question 9

What does it mean to be in custody

Answer 9

Reasonable person in PO’s presence feels he is not free to leave. Generally formal arrest or restraint

Traffic detention to office drop are non-custodial. Guns drawn are.

Question 10

What does it mean to be under interrogation

Answer 10

Reasonable PO knows/should know he is reasonably likely to elicit incriminating response

Routine question (booking, probation interview) is not considered interrogation

Question 11

Even if no interrogation, what must D’s statement still satisfy to be admissible under 5A privilege against self-incrimination

Answer 11

14A DPC voluntariness

Question 12

Does Miranda forbid strategic deception?

Answer 12

No. Miranda forbids coercion, not strategic deception.
Warning not required when suspect is unaware he is speaking to a police informant (or non-PO) who relays statement and gives voluntary stmt

Question 13

What is the only result of Miranda violation

Answer 13

Admissibility in P’s case in chief

Ok to use to impeach credibility of D’s testimony, x-exam etc.

Question 14

What does right to silence forbid

Answer 14

P’s negative comments on D’s silence or failure to testify.

Drawing adverse inference subjects any conviction to “harmless error test” (conviction not overturned if other overwhelming evidence)