Fifth Amendment Rights and Privileges Flashcards
The Fifth Amendment privilege against self-incrimination applies to whom?
Only persons, as in individuals. Artificial entities such as corporations, partnerships, and labor unions may not assert the privilege, but a sole proprietorship may.
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.
The Fifth Amendment privilege against self-incrimination applies to what type of evidence?
The privilege protects only testimonial evidence, including documents that are testimonial in nature (e.g. a diary).
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.
Applies to testimony that would be a link in the chain leading to prosecution or conviction. As long as there is reason to believe the testimony might lead to future criminal prosecution, an individual is entitled to invoke the Fifth Amendment.
The Fifth Amendment privilege against self-incrimination applies to what type of disclosure?
Only 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.
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.
How does a defendant invoke the Fifth Amendment privilege against self-incrimination? How does a witness invoke it?
Defendant: By not taking the stand. (The prosecution cannot bring the defendant’s failure to take the stand to the jury’s attention.)
Witness: 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.
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 what test?
the harmless-error test
How does a defendant waive the Fifth Amendment privilege against self-incrimination? How does a witness waive it?
Defendant: By taking the witness stand.
Witness: By disclosing self-incriminating information in response to a specific question.
How does immunity affect the Fifth Amendment privilege against self-incrimination? What are the types of immunity?
The prosecution may compel incriminating testimony (at trial or before a grand jury) if it grants immunity to the individual. The testimony cannot be used against the individual, directly or indirectly, in a subsequent prosecution.
- -“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. Minimum level of immunity that can be used to compel testimony.
- -Transactional (or “blanket” or “total”) immunity: Fully protects a witness from future prosecution for crimes related to her testimony.
What is the Miranda rule?
Statements made as a result of custodial interrogation are inadmissible unless they are accompanied by procedural safeguards (i.e., the Miranda warnings).
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. However, failure to give a suspect the Miranda warnings does not require suppression of PHYSICAL fruits of the suspect’s “unwarned but voluntary statements.”
If interrogation is stopped for a long duration, and then resumed, the warning must be given again.
What does “custodial” mean for Miranda purposes?
Custody 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.
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.
Note: Someone who is already imprisoned is not necessarily treated as “in custody”; a standard, objective “totality of circumstances” analysis applies. The prisoner is not “in custody” if he is free to be taken back to his cell.
Traffic stops generally are not considered custodial because they generally are brief and temporary.
What is an “interrogation” for Miranda purposes?
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.
Volunteered statements are not the product of investigation, so only coerced statements are protected by Miranda.
Whether a statement is voluntary or coerced is determined based on the totality of the circumstances. 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.
What are the Miranda warnings?
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.
How does a suspect invoke the right to counsel under the Fifth Amendment?
A suspect must make a specific, unambiguous statement asserting his desire to have counsel present. At that point, all interrogation must stop until counsel is present.
How does a suspect invoke the right to remain silent under the Fifth Amendment?
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.
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).
What are the exceptions to the Miranda requirement?
a. Public safety is at risk
b. Routine booking 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 is not aware that the interrogator is a police officer.
