Fifth Amendment Rights and Privileges

Question 1

What is the rule relating to the privilege against compulsory self-incrimination?

Answer 1

No person shall be compelled in criminal cases to testify against himself; applies to states through the 14th Amendment

Question 2

What does “persons” include and not include under the 5th Amendment?

Answer 2

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.

Question 3

What kind of evidence does the rule relating to the privilege against compulsory self-incrimination cover and not cover?

Answer 3

Covers testimonial evidence only.

Non-testimonial physical evidence (blood, urine, breathalyzer, etc.) is not protected.

Question 4

Which proceedings does the privilege against compulsory self-incrimination cover?

Answer 4

Applies to
-> civil and criminal
AND
-> formal and informal
proceedings if answers provide reasonable possibility of incriminating D in future CRIMINAL proceeding (not civil proceedings).

Question 5

Can a D waive the privilege against compulsory self-incrimination? How?

How about a witness?

Answer 5

Yes.
-> D waives by taking the stand and answering prosecution’s questions

Yes
-> witness waives it by disclosing self-incriminating information in response to a specific question

Question 6

How can the prosecution compel a party for incriminating testimony?

Answer 6

Prosecution may compel incriminating testimony if it grants immunity.

Question 7

What is transactional immunity?

Answer 7

The immunity can be a blanket or total immunity, which fully protects a witness from future prosecution for crimes related to testimony.

Question 8

What is “use and derivative use” immunity?

Answer 8

Only precludes the use of witness’s own testimony or any derivative evidence to the witness’s testimony against the witness.

Question 9

Can a party that gets immunity be prosecuted by another U.S. jurisdiction?

Answer 9

No, immunity precludes use by antlers U.S. jurisdiction to prosecute the defendant.

Question 10

How does the 5th Amendment work in a police interrogation context?

Answer 10

Any incriminating statement obtained as a result of custodial interrogation may not be used against suspect at subsequent trial unless police inform subject of Miranda rights.

Question 11

What is a custodial interrogation?

Answer 11

Custodial interrogation is questioning initiated by a known (as opposed to undercover) law enforcement officer after a person is in custody.

Question 12

How is “custodial” defined under a custodial interrogation?

Answer 12

Substantial seizure (i.e. formal arrest or restraint of freedom equivalent to arrest).

Would reasonable person believe he could leave?

Question 13

Is questioning at a police station automatically considered “custodial”?

Answer 13

No.

Question 14

How is “interrogation” defined in custodial interrogation?

Are voluntary statements protected during an interrogation?

Answer 14

Questioning and also words/actions reasonably likely to elicit incriminating response

Voluntary statements not protected

Question 15

When is a confession considered involuntary?

Answer 15

When it has been corner by police
-> look at the totality of circumstances

Question 16

What must be said in an interrogation and when must It be said in order for the custodial interrogation to be in compliance?

Answer 16

Warning must be given before interrogation OR given again if stoppedd for long time then resumed (e.g. couple of hours is enough for it to be considered “long time”)

Which states (need not be verbatim)

that informs the suspect of their Miranda rights
-> right to remain silent
-> any statement can be used in court against them
-> right to an attorney (or one will be appointed)

Question 17

How does the right to counsel work under compliance of a custodial interrogation?

How much time needs to pass before officers can re-interrogate the person after the person has asserted their right to counsel, but what must they do?

Answer 17

Suspect must make a specific, unambiguous statement asserting his desire to have counsel present, and once involved, all interrogation must stop until counsel is present, UNLESS suspect voluntarily initiates communication with police (including spontaneous statements).

If there is a 14-day or more break in custody then police can re-interrogate the person (even if counsel not present) BUT fresh Miranda warnings must be given again.

Question 18

How does the right to silence work under compliance of a custodial interrogation?

Answer 18

Suspect must make a specific, unambiguous statement asserting his desire to remain silent (mere silence is not enough).

Interrogation must scrupulously honor right if invoked, but if suspect indicates desire to speak, subsequent interrogation lawful if suspect not coerced, and Miranda warnings must be given again.

Question 19

What is the police required to do if a person makes an ambiguous statement asserting their right to counsel?

Answer 19

Nothing.

If a suspect makes an ambiguous statement regarding the right to counsel, the police are not required to end the interrogation or to clarify whether the suspect wants to invoke the right.

Question 20

What are the exceptions to the Miranda requirement?

Answer 20

Public safety
Routine booking questions
Undercover police asking the questions

Question 21

Can a person waive their Miranda rights? Who has the burden of proof that waiver was done?

Answer 21

Suspect may waive right, burden is on government to prove by a preponderance of evidence that waiver was made knowingly and voluntarily (silence insufficient).

Question 22

Can the police use statements said by a party when there has been no Miranda warning given to this party?

Answer 22

When, the police fail to provide Miranda warnings, an incriminating statement made as the result of the custodial interrogation can be suppressed at a subsequent trial, as it cannot be used directly against a criminal defendant in deciding ultimate issues of guilt or innocence.

Question 23

Can statements said before the police read a person’s Miranda warning be used for any purpose?

Answer 23

Such statements can be used for the limited purpose of impeaching a criminal defendant’s inconsistent testimony if the statements were voluntary and trustworthy.

Question 24

What happens if there was a reading of the Miranda rights, but there has been a passage of time between the first interrogation and the second.

Answer 24

A second confession may be suppressed when the circumstances indicate that the substance of Miranda has been drained away AND (objective test from majority of Supreme Court) a reasonable person in D’s shoes would not still realize they have a choice under the Miranda rights to stay silent.
OR
The alternative subjective test is that a second confession is inadmissible if circumstances make it clear police approach was intentional attempt to circumvent Miranda.

Question 25

Is physical evidence obtained by police via someone’s statement while in their custody but without being read their Miranda rights admissible?

Answer 25

In United States v. Patane, the U.S. Supreme Court held that physical evidence obtained as a result of a non-Mirandized statement is admissible so long as that statement was voluntary (i.e., not coerced).

Question 26

Is an incriminating statement following an unlawful arrest admissible or is it a violation of D’s 5th Amendment rights?

Answer 26

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.