FIFTH AMENDMENT RIGHTS AND PRIVILEGES Flashcards
The Privilege Against Compulsory Self-Incrimination
The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. It is applicable to the states through the Fourteenth Amendment.
Persons
A person means an individual. Artificial entities such as corporations, partnerships, and labor unions may not assert the privilege, but a sole proprietorship may. The privilege does not extend to the custodian of corporate records, even if production would incriminate the custodian individually.
Testimonial Evidence
The privilege protects only testimonial evidence. Nontestimonial physical evidence (such as a blood or urine sample, Breathalyzer test result, handwriting exemplar, voice sample, or other evidence of physical characteristics) is not protected.
Compulsory Disclosure
The privilege generally does not apply to an individual’s voluntarily prepared business papers or to records required by law to be kept, such as tax returns. Fisher v. United States, 425 U.S. 391 (1976). However, a person can refuse to comply with a requirement to register or pay a tax where the requirement is directed at a select group “inherently suspect of criminal activities.” Marchetti v. United States, 390 U.S. 39, 52 (1968) (occupational tax on bookies); Leary v. United States, 395 U.S. 6 (1969) (registration and tax based on transfer of marijuana).
a. Subpoena
A person who is served with a subpoena requiring the production of possibly incriminating documents may invoke the privilege if the act of turning over the documents constitutes self-incriminating testimony. United States v. Hubbell, 530 U.S. 27 (2000).
b. Warrant for seizure of documents
The Fifth Amendment does not prevent law-enforcement officials, pursuant to a valid warrant, from searching for and seizing documents that would incriminate a person. Andresen v. Maryland, 427 U.S. 463 (1976).
1) Diaries
Generally, the government may not compel production of a diary. The contents of a diary are similar to oral testimony, and as such are considered testimonial in nature. Because one cannot be compelled to testify against himself, the government may not compel production of documents that are similarly testimonial in nature. See, e.g., Schmerber v. California, 384 U.S. 757 (1966).
Note, however, that if the diary’s production is not compelled, e.g., it is found incident to a lawful arrest, its contents likely are admissible (assuming the entries were made voluntarily).
Nature of Proceedings
The privilege extends to a witness in any proceeding, whether civil or criminal, formal or informal, if the answers provide some reasonable possibility of incriminating the witness in future criminal proceedings. McCarthy v. Arndstein, 266 U.S. 34 (1924). However, the privilege cannot be invoked when the government requires civil records to be maintained and reported on for administrative purposes, because they are public records, unless those records fulfill a registration requirement of a select group of inherently suspect criminal activities and compliance would require self-incrimination. The privilege does not extend to identification requests at Terry stops. A violation occurs the moment the compelled statements are used against a person.
Invoking the Privilege
a. Defendant’s privilege
A defendant who wishes to invoke the privilege simply invokes it by not taking the stand. Included in this right is the state’s inability to compel the defendant to testify. The prosecution cannot bring the defendant’s failure to take the stand to the jury’s attention.
b. Witness’s privilege
A witness, on the other hand, may be compelled to take the stand and can invoke the privilege only in response to a specific question when there is some reasonable possibility that answering the question will incriminate the witness. However, such an invocation after testimony has already been made may violate a defendant’s right to confrontation, guaranteed by the Sixth and Fourteenth Amendments, if it prevents adequate cross-examination. Douglas v. Alabama, 380 U.S. 415 (1965).
Counseling Clients to Invoke the Privilege
Attorneys may counsel their clients to invoke the privilege and will not be held in contempt of court. Otherwise, the person invoking the privilege would be denied his Fifth Amendment protection.
Invocation of Privilege Should Not Impose a Burden
The state cannot penalize a defendant for invoking his right against self-incrimination by not testifying or cooperating with authorities. The prosecution cannot comment to the jury on the defendant’s refusal to speak in accordance with his Miranda rights. A violation in this regard by the state triggers the harmless-error test. However, if during trial the defendant claims that he was not allowed to explain his story, then the prosecution may comment on the defendant’s failure to take the stand.
Waiving the Privilege
A defendant waives the privilege by taking the witness stand; a witness waives the privilege by disclosing self-incriminating information in response to a specific question. Having taken the stand, the defendant cannot assert the privilege in response to the prosecution’s proper cross-examination of his testimony, including impeachment questions.
The Fifth Amendment in a Police Interrogation Context
In the seminal case of Miranda v. Arizona, the U.S. Supreme Court held that a suspect has a constitutional right not to be compelled to make incriminating statements in the police interrogation process. Miranda v. Arizona, 384 U.S. 436 (1966). Miranda once was considered to be necessary in nearly every encounter with police. However, the Supreme Court has been gradually narrowing the scope and limiting the use of Miranda.
Any incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to secure the privilege against self-incrimination (i.e., informed the suspect of his Miranda rights). An incriminating statement includes not only a confession, but other inculpatory statements, and is subject to suppression even though the defendant intended the statement to be exculpatory.
Custodial Interrogation
Custodial interrogation is questioning initiated by a known (as opposed to undercover) law-enforcement officer after a person is in custody.
a. “Custodial”
Custody is a substantial seizure and is defined for Miranda purposes as either a formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest. New York v. Quarles, 467 U.S. 649, 655 (1984).
If there has been no formal arrest, the question is whether a reasonable person would have believed he could leave, given the totality of the circumstances. Thompson v. Keohane, 516 U.S. 99 (1995). A child’s age is a relevant factor in determining whether a reasonable child would have believed he was in custody. J.D.B. v. North Carolina, 564 U.S. 261 (2011).
1) Police station
While police questioning an individual at a police station typically constitutes a custodial interrogation, the fact that the questioning takes place at a police station does not automatically make the encounter custodial.
2) Crime scene
The questioning of a person at the scene of a crime or pursuant to a field investigation does not constitute custody for Miranda purposes as long as the person questioned is not under restraint equivalent to that of formal arrest and has the right to leave the presence of the questioning officer.
3) Traffic stop
Traffic stops generally are not considered custodial because they generally are brief and temporary. Berkemer v. McCarty, 468 U.S. 420 (1984).
4) Prison
Imprisonment alone does not necessarily create a custodial situation within the meaning of Miranda. The questioning of a prisoner, who is removed from the general prison population, about events that took place outside the prison is not categorically “custodial” for Miranda purposes. A standard, objective “totality of circumstances” analysis applies when an inmate is interviewed, including consideration of the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted. Howes v. Fields, 565 U.S. 499 (2012) (holding that defendant was not in custody for purposes of Miranda during seven-hour interrogation that lasted well into the night, because he was told at the outset of interrogation, and was reminded again thereafter, that he could terminate the interrogation and go back to his cell whenever he wanted).
5) Continuation of custody
The failure of a police agency to provide Miranda warnings to a suspect can render inadmissible a statement given to a second policy agency that continues the interrogation of the suspect in the same location immediately after the termination of the interrogation of the suspect by the first police agency, even though the second police agency gave the suspect Miranda warnings and questioned the suspect about an unrelated crime. Miranda v. Arizona, 384 U.S. 436, 494-497 (1966) (addressing Westover v. United States).
b. “Interrogation”
Interrogation refers not only to express questioning, but also to any words or actions that the police know or should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291 (1980).
1) Voluntariness of statement
Volunteered statements are not protected by Miranda, as they are, by definition, not the product of interrogation.
A confession is involuntary only if the police coerced the defendant into making the confession. Whether a statement is voluntary or coerced is determined based on the totality of the circumstances (including facts such as the conduct of the police, the characteristics of the defendant, and the time of the statement). A claim that a confession should be excluded because it is involuntary must be decided by the trial judge as a preliminary question of fact, and not by the jury.
a) Trickery
Trickery by the police or false promises made to the accused by the police may render a confession involuntary. However, deceit or fraud by the interrogators (i.e., lying about a co-conspirator’s confession) does not itself make the confession involuntary.
b) Character of the defendant
The defendant’s age, state of health, education, or intoxication are all factors in determining the coercive nature of the confession. Although a potentially significant factor, the defendant’s mental condition alone cannot violate the voluntariness standard. There must be coercive police activity for the confession to be found involuntary. Colorado v. Connelly, 479 U.S. 157 (1986).
Compliance
Once a custodial interrogation begins, anything the defendant says is inadmissible until the defendant is informed of the Miranda rights and the defendant waives those rights.
a. Content
The warnings, which must be given before interrogation begins, need not be a verbatim repetition of the language used in the Miranda decision.
Law-enforcement officials must inform suspects:
i) Of their right to remain silent;
ii) That any statement uttered may be used in court;
iii) Of their right to consult an attorney and to have the attorney present during an interrogation; and
iv) That an attorney will be appointed to represent indigent defendants.
b. Timing
The Miranda warning must be given before interrogation begins. If interrogation is stopped for a long duration, the warning must be given again.
c. Right to counsel invoked
The right to counsel under the Fifth Amendment is not the same as the constitutional requirement of the right to counsel under the Sixth Amendment. The right to counsel under the Fifth Amendment is not automatic. To invoke the right to counsel under the Fifth Amendment, a suspect must make a specific, unambiguous statement asserting his desire to have counsel present. If a suspect makes an ambiguous statement regarding the right to counsel, the police are not required to end the interrogation or to ask questions or clarify whether the suspect wants to invoke the right. Davis v. United States, 512 U.S. 452 (1994). However, once that right to counsel is invoked, all interrogation must stop until counsel is present. Edwards v. Arizona, 451 U.S. 477, 484 (1981). If the suspect voluntarily initiates communication with the police after invoking his right to counsel, a statement made by the suspect, such as a statement that the suspect spontaneously blurts out, can be admissible because it is not made in response to interrogation. In addition, police may re-open interrogation of a suspect who has asserted his Fifth Amendment right to counsel if there has been a 14-day or more break in custody (such as the release back into the general prison population of a suspect who has been incarcerated for another crime). In such circumstances, the officers must give fresh Miranda warnings and get a valid waiver before beginning questioning. Maryland v. Shatzer, 559 U.S. 98 (2010).
d. Right to silence invoked
As with the Fifth Amendment right to counsel, the defendant must make a specific, unambiguous statement asserting his desire to remain silent. Merely remaining silent in response to police questioning does not invoke the privilege. Salinas v. Texas, 570 U.S. 178 (2013); Berghuis v. Thompkins, 560 U.S. 370 (2010). If a defendant invokes his Miranda right to remain silent, the interrogator(s) must “scrupulously honor” that request (e.g., immediately cease interrogation, allow for a significant passage of time, give a second set of warnings). However, if after the defendant is released from custody, the defendant indicates a desire to speak to police, then a subsequent interrogation would be lawful, as long as the defendant was not coerced. The defendant must again receive fresh Miranda warnings.
e. Grand jury
There is no requirement to give Miranda warnings to a witness testifying for the grand jury. The witness may, however, consult with an attorney outside the grand jury room.
Exceptions to the Miranda Requirement
a. Public safety
When the public’s safety is at risk, the police are not required to give Miranda warnings before questioning a suspect.
b. Routine booking
The “routine booking question” exception allows police to ask a suspected drunken driver routine biographical questions and to videotape the driver’s responses without first giving the driver Miranda warnings.
c. Undercover police
Miranda warnings are not required if the suspect being questioned is not aware that the interrogator is a police officer. Illinois v. Perkins, 496 U.S. 292, 294 (1990).
Waiver
A defendant may knowingly and voluntarily waive his Miranda rights. The burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowingly and voluntarily. (Keep in mind that a defendant’s mental illness does not necessarily negate the voluntariness requirement; there must be coercive police activity for a confession to be involuntary. Colorado v. Connelly, supra.)
There can be no effective waiver, however, until the Miranda warnings are properly given. Silence on the part of the suspect is not sufficient to waive his Miranda rights. However, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Berghuis v. Thompkins, 560 U.S. 370 (2010). The police are not required to inform the suspect of the defense counsel’s efforts to reach the defendant by telephone and need not inform counsel that the defendant is being questioned.
Use of Statements Taken in Violation of Miranda
The failure to give Miranda warnings is not a violation until a statement obtained without the use of warnings is used at trial. Chavez v. Martinez, 538 U.S. 760 (2003).
a. Impeachment purposes
Statements taken in violation of Miranda may be used to impeach the credibility of the criminal defendant if he takes the witness stand and gives testimony at variance with his previous admissions. Harris v. New York, 401 U.S. 222, 224 (1971). To be admissible for impeachment, the statement must be voluntary and trustworthy. The impeaching admissions may not be used directly in deciding ultimate issues of guilt or innocence; they may only be used in determining the defendant’s veracity.
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 process. Doyle v. Ohio, 426 U.S. 610 (1976); United States v. Hale, 422 U.S. 171 (1975). The Supreme Court has never applied the waiver doctrine to allow post-arrest silence to be admitted for impeachment purposes if the silence occurred after the defendant waived his right to remain silent. However, some states require a defendant to re-invoke his right to remain silent after a waiver to prevent the admission of his subsequent silence as impeachment evidence. Compare Bass v. Nix, 909 F.2d 297 (8th Cir. 1990), with Schragin v. State, 378 S.W.3d 510 (Tex. App. 2012).
b. Involuntary confessions
Involuntary confessions (e.g., those produced by coercion) cannot be used either substantively or for impeachment purposes. If a coerced confession is admitted into evidence, however, reversal is not automatic; the harmless-error test is applied, and the conviction will stand if the prosecution can show other overwhelming evidence of guilt.
Fruits of a Tainted Confession
- Physical Evidence
Derivative physical evidence (e.g., a gun) obtained as a result of a non-Mirandized confession (i.e., a confession that is inadmissible due to the police’s failure to give Miranda warnings) is admissible, so long as that confession was not coerced. United States v. Patane, 542 U.S. 630 (2004).
- Second Confession
A Miranda violation does not automatically require the suppression of incriminating statements made by the defendant after receiving Miranda warnings. Oregon v. Elstad, 470 U.S. 298 (1985). However, a second confession may be suppressed when the circumstances indicate that the substance of Miranda has been drained away. For a plurality of the court, the test is an objective one—a reasonable person in the suspect’s position would not have understood the Miranda warnings to convey a message that the suspect retained a choice about whether to remain silent. For the justice who cast the deciding vote (Justice Kennedy), the test is a subjective one—did the police act with an intent to circumvent the purpose of the Miranda warnings. Miranda; Missouri v. Seibert, 542 U.S. 600, 611 (2004).
Fifth Amendment in the Trial Context
- Scope of Privilege
A defendant may refuse to testify at a criminal trial. He may also refuse to answer questions in other proceedings (i.e., civil depositions) when the answers might incriminate him in future criminal proceedings.
The privilege does not prevent the prosecutor from using prior conflicting statements to impeach the defendant once the defendant takes the stand. This is called “opening the door” by the defendant.
- Voluntariness
Admissions of incriminating statements made during a court-ordered psychiatric examination are generally deemed involuntary and not admissible at trial unless the defendant is given Miranda warnings before the interview and waives his rights.
Business papers voluntarily prepared by an individual, or required records, such as tax returns, are not protected.
- Immunity
The prosecution may compel incriminating testimony (at trial or before a grand jury) if it grants immunity to the individual and the individual must testify. The testimony cannot be used against the individual, directly or indirectly, in a subsequent prosecution.
a. Transactional immunity
Often called “blanket” or “total” immunity, “transactional immunity” fully protects a witness from future prosecution for crimes related to her testimony.
b. Use and derivative-use immunity
“Use and derivative-use” immunity only precludes the prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness. The Supreme Court has held that the grant of “use and derivative-use” immunity is all that is constitutionally required to compel the testimony of a witness. Kastigar v. United States, 406 U.S. 441, 452–453 (1972). Testimony encouraged by a promise of immunity, however, is considered coerced and involuntary.
c. Federal and state immunity
Testimony under a grant of immunity may not be used by another U.S. jurisdiction to prosecute the defendant. See United States v. Balsys, 524 U.S. 666 (1998); Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964). Thus, a state grant of immunity will preclude admission of the testimony in a federal proceeding.
- Prosecutorial Comment
The prosecutor may not comment on the defendant’s exercise of the privilege against self-incrimination at trial. It is per se reversible error unless the judge immediately instructs the jury that the prosecutor’s comment was improper and that the defendant had a constitutional right not to testify. This constitutional violation is subject to the harmless error rule. U.S. v. Hastings, 461 U.S. 499 (1983).
