Fifth amendment Flashcards
What is the privilege against self-incrimination, and to what evidence and proceedings does it apply?
No person shall be compelled in a criminal case to testify against himself. It protects only testimonial evidence, and applies in any proceeding if the answers provide some reasonable possibility of incriminating the witness in future criminal proceedings.
How is the right to remain silent invoked under the Fifth Amendment, and what is the effect of invoking this right?
The defendant must make a specific, unambiguous statement asserting his desire to remain silent. If a defendant does so, the interrogator(s) must “scrupulously honor” that request.
Note: Merely remaining silent in response to police questioning does not invoke the privilege. However, post-arrest silence by a defendant who has received Miranda warnings generally may not be used by the prosecution as either impeachment or substantive evidence without violating the defendant’s right to due
What are three exceptions to the Miranda requirements?
(1) Public safety;
(2) Routine booking questions; and
(3) Undercover police.
When and how may statements obtained in violation of Miranda be used at trial?
Voluntary and trustworthy statements may be used as impeachment evidence.
When are the fruits of a non-Mirandized confession admissible?
Derivative physical evidence obtained as a result of a non-Mirandized confession is admissible, so long as that confession was not coerced.
What are the three protections provided by the Fifth Amendment Double Jeopardy Clause?
The correct answer is
(i) Protection against a second prosecution for the same offense after acquittal;
(ii) Protection against a second prosecution for the same offense after conviction; and
(iii) Protection against multiple punishments for the same offense.
What does the Fifth Amendment privilege protect suspects against? What does it not protect against?
The Fifth Amendment privilege against self-incrimination protects suspects in criminal proceedings from being compelled to provide self-incriminating evidence that is testimonial in nature—e.g., via a grand jury subpoena (as seen here). However, this privilege does not apply to evidence that might subject a person to civil liability. Therefore, the court should deny the COO’s motion to quash as to the emails that would subject the COO to civil liability for defamation (Choices C & D).
Additionally, the privilege against self-incrimination applies only to individuals—not corporations. This means that when a corporation is the target of an investigation (as seen here), the custodian of corporate records (or other corporate officer) cannot refuse to produce subpoenaed documents by citing this privilege. This is true even if the documents would incriminate the custodian (or officer) personally.
Does the 5th amendment prohibit a second prosecution of a “greater offense” after a guilty plea for the “lesser” offense?
The Fifth Amendment double jeopardy clause generally prohibits a second prosecution after a prior conviction for the same offense. Offenses are considered the same for double jeopardy purposes if one is a lesser included offense of the other. That is because every element of the lesser offense is included in the greater offense. Therefore, when a conviction of a lesser included offense stems from a guilty plea, the double jeopardy clause bars a subsequent prosecution for the greater offense unless:
an event necessary to establish the greater offense occurred after the plea was entered or
the greater offense was charged before the plea was entered.
When is evidence suppressed after an unlawful arrest?
Under the exclusionary rule, an unlawful arrest generally requires suppression of evidence obtained as a result of that arrest. However, an incriminating statement made after an unlawful arrest is admissible if the connection between the arrest and the statement is so attenuated that the statement is considered voluntary. To make this determination, the court will examine the totality of the circumstances, including:
the length of time between the arrest and the statement
the flagrancy of the police misconduct and
the existence of intervening events between the arrest and the statement.
Miranda warnings are not, by themselves, a sufficient intervening event to break the connection between an illegal arrest and a subsequent statement. And a statement that is too closely connected to an unlawful arrest should be suppressed.
