Interrogations

Question 1

5A - General

Answer 1

Provides that no person shall be compelled in any crinimal case to be a witness against himself

Question 2

5A - Scope of the Privilege

Answer 2

Persons - applies to natural persons, not corporations or unions

Ex: corporation’s records custodian cannot claim privilege on behlf of the corp

Testimonial - applies to testimonial evidence, not physical evidence

Ex: does not apply to blood tests or handwriting tests or voice tests

Incrimination - applies to testimony that would be incriminating (which includes links in the chain, i.e., evidece that is liekly to lead to prosecution and conviction)

Invocable When? - in any proceeding as long as there is reason to believe that testimony might lead to future criminal prosecution

Immunitiy - if immunity given, then cannot invoke right

Question 3

5A - Statements Made by an Individual

Answer 3

• must be made by the individual to the government
• key starting point for privilege against self incrim is miranda v arizona

Rule - statements made as a result of custodial interrogation are inadmissible unless accompanied by procedural safeguards

Custodial - person being questioned has been arrested or is otherwise not free to leave

• if not in custody then no warning is required;
• any statement or failure to respond to questions can be used against them
• must be removed from normal surroundings and not free to return them; someone already imprisoned is not necessarily treated as being in custody when questioned about another crime

Interrogation - invovlves either the official asking questions or engaging in another conversation or conduct that police know or should know will elicit a response

• does not include volunteered statements but does include induced statements
• does not include routine booking question

Question 4

5A - Miranda Warnings

Answer 4

General - before conducting custodial interrogations, the police must inform the suspect

• he has the right to remain silent
• any statement she makes may be used against her in court
• she has the right to consult an attorney and to have the attorney present during questioning
• she has the right to have an attorney appointed if she cannot afford one

Understood - interrogators must ask whether the D understood the rights (i.e., D understands english, can hear and actually heard what was said)

Must Cease Questioning if:

1. Invoking Right to Remain Silent - if D affirmateively invokes the right to remain silent and does not want to talk, then interrogation must terminate immediately;

• not enough to remain silent
• after a substantial period of time (24 hours), police can go back to suspect, give warning again, and seek to talk to her
• no magic words, as long as substance of miranda warning is communicated, it will be sufficent

2. Invoking Right to Counsel - if D affirmatively invokes right, all questioning must stop until i) the lawyer is present or ii) the D reinitiates contact with the police

• must say “i want my lawyer”; “i think i should talk to somebody” or “i want to talk to my parent/doctor/etc” is not enough
• police cannot generally go back to the D
• Exception - if there is a break of more than two weeks between the first and second attempts at interrogation, the second statements can be used as long as the D waives her miranda rights the second time around
• police do not have to tell D that a lawyer is trying to reach her if the D does not ask for the lawyer

Question 5

5A - Public Safety Exception

Answer 5

Rule - when public safety isa t risk, police do not have to give miranda warning before questioning

Ex: ticking time bom

Question 6

5A - Interrogation Tactics

Answer 6

Confession - confession must be voluntary

• statements obtained by threat, even after warnings, are inadmissible
• ex: we will prosecute you =/ threat; we will beat you up, or, we will go and arrest your children = threats

Deceit - confffesions can be the product of deceit and still be voluntary and admissible

• can use colander and copy machine “lie detector”

Question 7

Conseq of 5A Violation - List

Answer 7

Statements obtained involuntarily

Statments obtained in violation of miranda

Question 8

Conseq of 5A Violation - Involuntarily Obtained Statements

Answer 8

Obtained via threat or beating or some other cooercive means

Effect - never admissible against a D

Ex: gun to head and “confess or die”

Turnover Conviction - prosecution must show admitted statements were harmless (harmless error standard)

Evidence - evidence obtained via involuntary statements is fruit of the poisonous tree and is inadmissible

Question 9

Conseq of 5A Violation - Miranda Violation Statements

Answer 9

Effect - statement obtained in violation of miranda is inadmissible in the prosection’s case in chief but can be admitted for hearsay purposes to challenge the credibility of the D

Evidence - evidence obatined as a result of a volutary statement take in violation of miranda is admissible