Fifth Amendment Right To Not Be A Witness Against Yourself

Question 1

What does the Fifth Amendment recite?

Answer 1

No person shall be compelled in any criminal case to be a witness against himself.

NOTE: The privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.

Question 2

How did Counselman v. Hitchcock (U.S. 1892) impact the 5th Amendment?

P. 606

Answer 2

Counselman made the privilege available to criminal defendants and to witnesses called before formal bodies such as grand juries, congressional committees, or commissions.

Question 3

How did Bram v. U.S. (U.S. 1897) impact the 5th Amendment privilege?

Answer 3

Five years after Counselman, Bram made the 5th Amendment privilege the source of protection against compelled confessions in federal prosecutions.

NOTE: Brown v. Mississippi, p. 12, located in the DP clause a protection against coerced or involuntary confessions when the issue first arose in state courts. These protections differ in two ways. First, as to scope, the privilege offers a broader protection. It sometimes protects against subpoenas directed at documents and other tangible evidence while the DP clause protection in the confession context is limited to interrogation by state agents.

Question 4

If a defendant is compelled to give up his blood for a blood test after objecting to it, is that defendant’s 5th Amendment right violated? I.e., is he being a “witness against himself?”

See Schmerber v. California (U.S. 1966) p. 607

Answer 4

NO. Schmerber held that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a TESTIMONIAL or COMMUNICATIVE nature.

NOTE: Compelling a defendant to take a polygraph test violates defendant’s 5th right. However, requiring a suspect to stand in a line-up, provide a writings sample, or speak certain words DOES NOT implicate the suspect’s right not to be compelled to be a witness against himself.

Question 5

Is a witness being compelled to be a witness against himself if the compelled testimony is never used in a criminal case against him?

See Kastigar v. U.S. p. 608, 911

Answer 5

NO — In Kastigar, SCOTUS held that the witnesses called to testify before grand juries can be compelled to testify if they are given “use-and-derivative-use immunity.” This doctrine forbids use of the compelled testimony, and everything derived from it, in a criminal case against the person providing the testimony. It applies to state and federal courts, regardless of which sovereign obtains the testimony by granting immunity.

NOTE: Implicit in Kastigar is the premise that the 5th privilege violation occurs only when the compelled testimony is used in a criminal case.

Question 6

What is the basic principle of Miranda v. Arizona?

P. 613

Answer 6

The prosecution CANNOT use statements—whether exculpatory or inculpatory—stemming from custodial interrogation of the defendant UNLESS it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

Question 7

At what point does the adversary system of criminal proceedings commence? See Miranda v. Arizona

P. 624

Answer 7

When the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way.

Question 8

What was the holding in Miranda v. Arizona?

P. 624

Answer 8

When an individual is taken into custody or otherwise subjected to questioning, the privilege against self-incrimination jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right to silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required:

He must be warned prior to any questioning that he has the RIGHT TO REMAIN SILENT, that ANYTHING HE SAYS CAN BE USED AGAINST HIM in a court of law, that he has THE RIGHT TO THE PRESENCE OF AN ATTORNEY, and that IF HE CANNOT AFFORD AN ATTORNEY ONE WILL BE APPOINTED FOR HIM PRIOR TO ANY QUESTIONING if he so desires. Opportunity to exercise these rights MUST BE AFFORDED TO HIM THROUGHOUT INTERROGATION. After such warnings have been given, and such opportunities afforded him, the individual MAY KNOWINGLY & INTELLIGENTLY WAIVE THESE RIGHTS and agree to answer questions of make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.

Question 9

Do conversations between suspects and undercover agents implicate the concerns underlying Miranda?

See Illinois v. Perkins (U.S. 1990) P. 630

Answer 9

NO. The essential ingredients of a “police dominated atmosphere” and compulsion are NOT PRESENT when an incarcerated person speaks freely to someone he believes to be a fellow inmate. Coercion is determined from the perspective of the suspect. When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking.

Question 10

Miranda issue spotting checklist.

P. 631

Answer 10

1. Whether there was a custodial interrogation.
2. Whether the suspect waived their Miranda rights.
3. Whether there are any “fruits” of the Miranda violation.
4. Whether any exceptions apply to the Miranda rule.

Question 11

What is the PUBLIC SAFETY EXCEPTION to the Miranda rule outlined in NY v. Quarles (U.S. 1984) on p. 640?

Answer 11

The motivation of individual officers is irrelevant where police officers ask questions (w/o giving Miranda warnings) REASONABLY PROMPTED BY A CONCERN FOR THE PUBLIC SAFETY.

NOTE: Here, had Miranda warnings deterred Quarles from responding to Officer Kraft’s question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting Quarles. Officer Kraft needed an answer to his question not simply to make his case against Quarles but to INSURE THAT FURTHER DANGER TO THE PUBLIC DID NOT RESULT from the concealment of the gun in a public area. We conclude that the need for answers in a situation posing a threat to the public safety outweighs the need for prophylactic rule protecting the 5th Amendment’s privilege against self-incrimination.

Question 12

What is a counter argument to the public safety exception (J. O’Connor concurrence/dissent in NY v. Quarles)

P. 642-43

Answer 12

Whether society would be better off if the police warned suspects of their rights before beginning an interrogation or whether the advantages of giving such warnings would outweigh their costs DID NOT inform the Miranda decision. On the contrary, the Miranda court was concerned with the proscriptions of the 5th Amendment, and in particular: whether the self-incrimination clause permits the government to prosecute individuals based on statements made in the course of custodial interrogations.

Question 13

Do courts apply the traditional fruit of the poisonous tree doctrine to the Miranda exclusionary rule?

Compare Oregon v. Elstad (U.S. 1985) on p. 651 with Missouri v. Seibert (U.S. 2004) on p. 664, 667

Answer 13

Where the interrogation is NEARLY CONTINUOUS and the second statement is CLEARLY THE PRODUCT OF THE INVALID FIRST STATEMENT, the second statement should also be suppressed.

In Elstad, it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home since a reasonable person in the suspect’s shoes could have seen the station house questioning as a NEW & DISTINCT experience, the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.

In Seibert, the unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill… The warned phase of questioning proceeded after a pause of only 15-20 minutes, the same place as the unwarned segment. When the same officer who had conducted the first phase recited the Miranda warnings, he did NOT advise that her prior statement could not be used.

Question 14

What factors do courts generally consider to find a Seibert violation?

P. 672

Answer 14

(1) The completeness and detail of the questioning and answers in the first round of interrogation; (2) the overlapping content of the two statements; (3) the timing and setting of the first and second; (4) the continuity of police personnel; and (5) the degree to which the interrogator’s questions treated the second round as continuous with the first.

Question 15

Does a Terry STOP, by itself, render a suspect “in custody”? See Berkemer v. McCarty (U.S. 1984) on p. 681

Answer 15

NO. In Berkemer, only a short period of time elapsed between the stop and the arrest. At no point during that interval was the respondent informed that his detention would not be temporary. Although Trooper Williams apparently decided as soon as respondent stepped out of the car that respondent would be taken into custody and charged with a traffic offense, Williams never communicated his intention to respondent. A policeman’s unarticulated plan has NO BEARING on whether a suspect is in custody; THE ONLY RELEVANT INQUIRY IS HOW A REASONABLE MAN IN THE SUSPECT’S POSITION WOULD HAVE UNDERSTOOD THE SITUATION (whether there is a formal restraint of freedom of movement of the degree associated with a formal arrest).

Further, a single police officer asked respondent a modest amount of questions and requested him to perform a simple balancing test at a location visible to passing motorists. Treatment of this sort cannot fairly be characterized as a the functional equivalent of a formal arrest.

Question 16

Can the Miranda exclusionary rule be overruled by an Act of Congress? See Dickerson v. U.S. (U.S. 2000) on p. 655

Answer 16

NO. Miranda, being a constitutional decision of SCOTUS, CANNOT be in effect overruled by an Act of Congress.

See also Marbury v. Madison (U.S. 1803) which held that an Act of Congress WILL NOT BE ENFORCED by the courts if what it proscribes violates the U.S. Constitution.

NOTE: At issue in Dickerson, in the wake of the Miranda decision, Congress enacted 18 U.S.C. § 3501, which essentially laid down a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made. Given § 3501’s express designation of voluntariness as the touchstone of admissibility, its omission of any warning requirement, and the instruction for trial courts to consider a nonexclusive list of factors relevant to the circumstances of a confession, Congress intended by its enactment to overrule Miranda.

Question 17

Is a prisoner still in custody when he is INCARCERATED? See Maryland v. Shatzer (U.S. 2010) on p. 683

Answer 17

NO. The inherently compelling pressures of custodial interrogation end when the prisoner returned to his normal life.

Question 18

Does “subtle compulsion” (e.g., “it would be too bad if a little girl found your gun and hurt herself”) equate to interrogation? See Rhode Island v. Innis (U.S. 1980) on p. 689

Answer 18

NO. In Innis, the officers’ comments about children finding the suspect’s gun struck a responsive chord, thus the suspect was subjected to “subtle compulsion” after he invoked his Miranda right to be silent. However, that is not the end of the inquiry. The defendant/suspect must also establish that his incriminating response WAS THE PRODUCT OF WORDS OR ACTIONS by police that they SHOULD HAVE KNOWN WERE REASONABLY LIKELY to elicit an incriminating response. Innis did not establish this.

NOTE: J. Marshall’s dissent stated that he agreed with the objective standard, but he could not see how the standard, applied to these facts, could rationally lead to the conclusion that there was no interrogation.

Question 19

Is providing one’s name to the police (or other routine questions) incriminating?

Answer 19

NO. Under the “routine booking question” exception to Miranda, routine questions—such as asking a suspect’s name, address, height, weight, eye color, birthday, and current age—do NOT seek incriminating answers.

Question 20

If a suspect is in custody, is given Miranda warnings, and invokes the right to remain silent AND requests an attorney to be present, and the interrogation continues without the presence of an attorney and a statement is taken, what must the government prove?

Answer 20

If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant VOLUNTARILY, KNOWINGLY, and INTELLIGENTLY waived his privilege against self-incrimination and his right to retained or appointed counsel, a matter which depends in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and knowledge of the accused.

NOTE 1: An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver WILL NOT BE PRESUMED SIMPLY FROM SILENCE of the accused after warnings are given or simply from the fact that a confession was eventually obtained.

NOTE 2: When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right CANNOT be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.

NOTE 3: An accused, such as the defendant in Edwards v. Arizona (U.S. 1981) on p. 717, having expressed his desire to deal with the police only through counsel, is NOT subject to further interrogation by the authorities until counsel has been made available to him, UNLESS the accused himself INITIATES further communication, exchanges, or conversations with the police. Initiation occurs only when an inquiry from the suspect can BE FAIRLY SAID TO REPRESENT A DESIRE on the part of the accused to OPEN UP A MORE GENERALIZED DISCUSSION RELATING DIRECTLY OR INDIRECTLY to the investigation. Asking for a drink of water or to use the phone would NOT constitute initiation because they are routine incidents of the custodial relationship.

NOTE 4: The suspect who requests her right to silence is protected differently from the one who demands her right to counsel. See Michigan v. Mosley (U.S. 1975) on p. 720: under the facts of the case, the previous request not to talk to a robbery bureau detective for a robbery crime did not extend to the second interrogation by a homicide detective that was questioning Mosley about a homicide. So the right does not extend to different questioning about a different crime for the right to remain silent.

Question 21

Is an express statement to waive Miranda rights indispensable to a finding of waiver? See North Carolina v. Butler (U.S. 1979) on p. 696

Answer 21

NO. The Miranda court held that an express statement can constitute a waiver, and silence alone after such warnings cannot do so. But the court did NOT hold that such an express statement is indispensable to a finding of waiver.

NOTE: In Butler, the responded replied to the FBI that he understood his Miranda rights but he refused to sign the waiver form. The FBI told respondent that he need neither speak nor sign the form, but that the agents would like him to talk to them. Respondent replied “I will talk to you but I am not signing any form.” He then made inculpatory statements. Respondent said nothing when advised of his right to the assistance of a lawyer. At no time did the respondent request counsel or attempt to terminate the agents’ questioning. SCOTUS held that despite not signing the waiver, respondent had waived his Miranda rights voluntarily, knowingly, and intelligently.

Question 22

Does a custodial suspect’s invocation of the right to counsel require police to stop their interrogation?

Answer 22

YES. However, “I think I want a lawyer” is not sufficient invocation of the right. The suspect must UNAMBIGUOUSLY request counsel. He must articulate his desire to have counsel present sufficiently clearly that a REASONABLE police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, the officers do NOT need to stop questioning the suspect.

NOTE 1: A person in custody who has once asked for counsel CANNOT thereafter be approached by the police UNLESS counsel is present. This is the case even if the person in custody has had a chance to speak with their lawyer (even multiple times) before the police approach the person custody. Counsel must be present during the interrogation or else the confession will be inadmissible. See Minnick v. Mississippi (U.S. 1990) on p. 721 (systematic assurance rationale).

NOTE 2: Suspects who invoke their right to counsel and then are released from custody can, AFTER AT LEAST 2 WEEKS, be asked again if they wish to waive their right. The rationale is that the 2-week “cleansing period” provides “plenty of time for the suspect to get reacclimated to his non custodial normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.” See Maryland v. Shatzer (U.S. 2010) on p. 722.

Question 23

What must the prosecution demonstrate to prove that a suspect waived his right to remain silent? See Berghuis v. Thompkins (U.S. 2010) at 704–05.

Answer 23

An accused who wants to invoke his right to remain silent must do so UNAMBIGUOUSLY. The waiver inquiry has 2 distinct dimensions: (1) waiver must be VOLUNTARY in the sense that it was the product of FREE and DELIBERATE choice rather than intimidation, coercion, or deception, and (2) made with a FULL AWARENESS of both the nature of the right being abandoned and the consequences of the decision to abandon it.

NOTE: The government’s “heavy burden” is NOT MORE than the burden to establish waiver by a PREPONDERANCE of the evidence.

Question 24

Must the prosecution show that a waiver of Miranda rights was express? See Berghuis v. Thompkins (U.S. 2010) at 706

Answer 24

NO. An IMPLICIT waiver of the right to remain silent is sufficient to admit a suspect’s statement into evidence. Butler made clear that a waiver of Miranda rights may be implied through the defendant’s SILENCE, coupled with AN UNDERSTANDING of his rights and a COURSE OF CONDUCT indicating waiver.

NOTE: Simply stated, where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.