Crim Pro-Fifth Amendment Flashcards
What are the basic fifth amendment rights?
Privilege against self-incrimination – protects the D’s right to not make statements that may be used against him or to testify against himself; grand jury process and, if appropriate, and indictment; right against double jeopardy; not to be convicted or punished without due process of law.
What is the fifth amendment right of self incrimination?
It protects against compelled testimonial evidence. Once a person is in custody, he must be read his Miranda rights prior to any interrogation. If a D is entitled to Miranda warnings and none are given, then any subsequent confession will be inadmissible. Applicable to states via 14th amendment. Corporations don’t have self incrimination rights. Applies only to testimonial evidence, not to physical evidence such as fingerprints, blood samples, handwriting samples, etc.
When does the right against self incrimination attach?
When the D is in custody.
What does in custody mean?
Does not necessarily mean that the person is under arrest. Whether a person is in custody depends on wether a person’s freedom of actions is denied in a significant way. A routine traffic stop does not constitute “in custody.” If a suspect comes voluntarily to police station, not in custody. Could be in custody even at home, but virtually all interrogation which does not take place in a police station or jail is considered non custodial. Just because suspect is interrogated, doesn’t mean he is in custody.
What is interrogation?
Interrogation means any words or conduct by police that they should know would likely elicit an incriminating response from the defendant. Things like what’s your name, a request for license and registration, not interrogation. These latter are examples of “harmless inquiry.” Good phrase to use!
What is the standard for waiver of miranda rights?
Waiver must be voluntary, knowing and intelligent. Often obtained in writing. Silence is essence of 5th amendment right and, hence, not a waiver. PO have no obligation to inform suspect that lawyer waiting outside. Suspect must invoke miranda and request lawyer.
What happens if D asserts miranda rights?
Police must not initiate questioning or, if rights had been previously waived, police must cease questioning once suspect request lawyer. (Not true if suspect requests to see probation officer, for example) Once asserted, police may not “renew” or ask again whether suspect wishes to waive, unless suspect broaches topic. However, police may ask suspect about another crime, unless asserts miranda rights.
What is practical import of a successful motion to suppress statements or a confession in violation of the 5th amendment? Or if D invokes Miranda rights.
Any suppressed statements cannot come into evidence in G’s case in chief. G cannot use the D’s silence against him in any way. G cannot say that D invoked miranda. However, statements suppressed may be used to impeach the defendant as a prior inconsistent statement if he testifies differently from what he said before.
How does Miranda apply in the post indictment context?
Fifth amendment rights follow the D throughout the proceedings against him. In other words, police may not elicit incriminating statements from D without his lawyer after formal charges have been filed, just like they can’t when the suspect is merely in custody. Further, Gov’t may not attempt to elicit statements indirectly, e.g. via a paid informant, once D has asserted rights and is represented by counsel (which is also consistent with ethical rules). But if Gov’t comes across statements that are fortuitous, can use – like said to a jail house snitch.
What is the 5th amendment right against double jeopardy?
No person shall be subject for the ams offense or be twice put in jeopardy.
When does jeopardy attach?
Jury trial – when jury is empaneled; bench trial – when first witness is sworn. Where there is a plea, when ct accepts the plea. Basically, G can do what wants until jeopardy attaches. Dismissals are often without prejudice to allow G bring same charges again.
What is the same or separate offenses rule?
Double jeopardy only an issue for the same offense. Even if two or more crimes arise out of same proceeding, no requirement to try all at once. Basically, if elements of crime are the same, jeopardy attaches. If not, jeopardy doesn’t attach.
What is the lesser included offenses rule?
Generally, every crime contains lesser included offenses. If jury charged on lesser included offenses, may not be tried again for greater offenses and visa versa. NOT SURE HAVE THIS RIGHT.
What is the same or separate sovereigns rule?
Double jeopardy prohibits multiple triels of the same defendant for the same offense before the same authority. Hence, defendant can be tried before a federal and a state court for the same offense.
What is the effect of a mistrial on double jeopardy?
Happens after jeopardy has attached. Depends on reason for mistrial. No DJ if a) reason for mistrial caused by D; b) caused by necessity like death of judge or lawyer; c) hung jury. But if caused by prosecutorial misbehavior or misconduct, up to judge.
