Fifth Amendment

Question 1

Miranda-Custodial Interrogations

Answer 1

When a suspect is taken into custody by the police and is under interrogation, his confession will be admissible against him only if he has received the requisite Miranda warnings, informing him that he has the right to remain silent, that anything he says can be used against him, that he has the right to have an attorney present, and if he cannot afford an attorney, one will be appointed for him.

Question 2

Custodial

Answer 2

A suspect is in custody when a reasonable person would believe that he is not free to leave.

Question 3

Interrogation

Answer 3

Interrogation includes words or actions by the police that they should know are reasonably likely to elicit an incriminating response from the suspect.
Suspect must be aware: A custodial interrogation does not occur when a suspect speaks to an undercover agent or government informant and the suspect does not know that he is speaking to a law enforcement officer, even if the suspect is in jail.

Question 4

Public safety exception (Miranda)

Answer 4

Miranda warnings do not apply to questioning that is reasonably prompted by a concern for public safety.

Question 5

Re-Mirandize

Answer 5

Once the suspect has unambiguously invoked his rights under Miranda, the police cannot re-Mirandize the suspect in an attempt to get the suspect to speak unless there has been a sufficient break in custody (14 days deemed sufficient).

Question 6

Waiver of Miranda

Answer 6

A suspect may waive his Miranda rights, expressly or impliedly, but such a waiver is only admissible if it is voluntarily, knowingly, and intelligently made. Mere silence is insufficient to demonstrate a waiver.

Question 7

Confession-Voluntariness

Answer 7

For confessions to be admissible, due process requires that they be voluntary. D’s confession must be voluntary in light of the totality of the circumstances.

Question 8

Governmental Conduct (Miranda)

Answer 8

Miranda only applies to interrogation by the publicly paid police or a government agent. It doesn’t apply where interrogation is by an informant who the D doesn’t know is working for the police.

Question 9

Right to terminate Interrogation

Answer 9

The accused may terminate police interrogation by invoking either the right to remain silent or the right to counsel.

Question 10

Right to remain silent (5th)

Answer 10

If suspect invokes the right to remain silent, all questioning related to the particular crime must stop, and the police must scrupulously honor that right.

Question 11

Right to Counsel (5th)

Answer 11

If the suspect invokes the right to counsel, ALL questioning must stop until counsel is present, OR until the suspect initiates further questioning himself. The request for counsel must be unambiguous so that a reasonable police officer would understand it. Once the right to counsel has been invoked, the police may not even question about a totally unrelated crime.

Question 12

Fifth Amendment right against self-incrimination

Answer 12

This right protects a criminal defendant from compulsion to give testimony or communicative evidence that could expose him to criminal liability.

Question 13

Fifth Amendment double jeopardy

Answer 13

This protects an individual from being tried for the same offense twice after jeopardy attaches. Jeopardy attaches when the jury has been impaneled and sworn for a jury trial, or when the first witness has been sworn for a bench trial.

Question 14

Fifth Amendment due process

Answer 14

which is applicable to the states through the Fourteenth Amendment, requires that:

1. Confessions be made voluntarily, and
2. Identifications are not unnecessarily suggestive and so conducive to mistaken identification that it is unfair to the defendant.