Fifth Amendment

Question 1

Who has the 5th Amendment privilege against self-incrimination?

Answer 1

Persons, not corporations.

• Only testimonial evidence.
• Does not apply to voluntary prepared business papers (tax returns).
• Diaries cannot be compelled.

Question 2

How can the self-incrimination privilege be waived?

Answer 2

By taking witness stand - defendant.

Disclosing by answering questions - witness.

Question 3

Does the 5th Amendment self-incrimination apply to lawful resident aliens?

Answer 3

Yes.

Question 4

How does self-incrimination apply to police interrogation context?

Answer 4

Miranda v. Arizona

Any incriminating statement as the result of a custodial interrogation may not be used at trial unless police provide warnings.

Question 5

What are the fruits of a tainted confession?

Answer 5

Physical evidence - obtained without Miranda - admissible as long as not coerced.

Question 6

Can statements taken in violation of Miranda be used at trial?

Answer 6

No. Unless;

Impeachment: if defendant takes stand and gives testimony: post-arrest silence may not be used however.

Involuntary Confessions - not allowed. Harmless error applies if admitted.

Question 7

Can a defendant waive Miranda rights?

Answer 7

Yes.

• Must be knowingly and voluntarily.
• No waiver until given. (no pre-Miranda waivers)
• Police not required to inform of attorney efforts to reach defendant

Question 8

What are the exceptions to Miranda?

Answer 8

Public safety

Routine booking: allowed to ask drunk driver rotutine biographic questions.

Undercover police if suspect is not aware.

Question 9

How can compliance of Miranda be made?

Answer 9

Right to remain silent (Right to silence must also be invoked)

Any statement offered may be used in court

Right to consult attorney

Attorney appointed if indigent.
Note: If interrogation stopped for a long time, must be given again.

Right to counsel under 5th Amendment: must be invoked (not automatic)