Pg 23

Question 1

What is the fifth amendment?

Answer 1

No one will be compelled in any criminal case to be a witness against himself. This protects against compulsory incrimination

Question 2

What is the rationale behind the fifth amendment?

Answer 2

It protects people from compulsory incrimination through their own testimony or personal records.

Question 3

How does the fifth amendment apply to each state?

Answer 3

Through the 14th amendment.

Question 4

The fifth amendment gives a person an absolute right not to answer if the defendant has what?

Answer 4

Any real or substantial fear that the answer would lead to self-incrimination

Question 5

What is qualified immunity under the fifth amendment?

Answer 5

If a defendant is never prosecuted for a crime, he never witnessed against himself in a criminal case because there is no initiation of a legal proceeding. The fifth amendment is a trial right. If the witness insists on an immunity agreement before giving incriminating testimony, that preserves his core 5th amendment rights. There is no fifth amendment right if a witness is testifying in a congressional hearing

Question 6

If a person confesses, that is a waiver of what?

Answer 6

The right to require the state to meet the burden of proof at trial

Question 7

Why are coerced confessions not allowed?

Answer 7

Because they are unlikely to be true and the methods to get them offend the law

Question 8

What are the different ways to challenge the admissibility of a confession?

Answer 8

• through the 14th amendment due process voluntariness test
  – Miranda rules
  – prompt appearance requirement

Question 9

What is involved in challenging the admissibility of a confession through the 14th amendment due process voluntariness test?

Answer 9

This considers the totality of the circumstances to see if the constitution requires exclusion.

It includes things like: intelligence, lack of education, health, emotional characteristics, age, prior record, sleep deprivation, show of sympathy from police, lies from the police, lack of advice about constitutional rights, duration of questioning, repeated or prolonged questioning, use of physical punishment like no food or sleep, previous experience with criminal judicial system, request for a lawyer, if the police were sympathetic, trickery, etc.

Question 10

Is it possible for police to use actual or threatened force, or psychological pressure to get a confession?

Answer 10

No, because that violates the 14th amendment due process voluntariness test

Question 11

What are examples of using actual force to get a confession that would not be allowed?

Answer 11

• putting a gun to the suspect’s head and demanding a statement
• a prison inmate offering to protect the defendant from violence if he confesses [so long as there was state action and a suggestion the violence would continue if the confession wasn’t forthcoming]

Question 12

If a police officer threatens force to someone if they do not tell the truth or make a confession, is that confession admissible?

Answer 12

No. Ie: if the police tell the suspect to tell the truth while they put their hand on their gun holster

Question 13

What are things that the police cannot do to encourage a confession?

Answer 13

• use actual force
• use threatened force
• use psychological pressure
• make promises
• use deception

Question 14

What are examples of psychological pressure that the police cannot use to get a confession?

Answer 14

They cannot have unusually long detentions or interrogations, keep the suspect incommunicado, interrogate him during the night to deprive him of sleep, play on his own susceptibilities, tell the suspect’s wife to threaten to leave him if he doesn’t confess, etc.

Question 15

If a suspect is detained for 38 hours during which time he is constantly interrogated incommunicado without sleep, is that OK?

Answer 15

No, that is against the 14th amendment due process voluntariness test

Question 16

What are the things that police cannot promise in order to get a confession out of someone?

Answer 16

• leniency
  – non-prosecution
  – medical treatment
  – that the suspect’s pain will be alleviated if he cooperates

But they can promise to bring the suspect’s cooperation to the attention of the prosecutor and possibly get the charges reduced

Question 17

If the police lie and say that an eyewitness has identified the defendant, but the defendant tells him he doesn’t believe it and wants to confess anyway, is that considered to be involuntary under the 14th amendment due process test?

Answer 17

No, because the deception was probably not sufficient to overcome the will of the suspect

Question 18

Is it proper to interrogate a suspect by lynching them?

Answer 18

No, when the government uses coercion, it violates due process and the confession is not admissible

Question 19

What is the major question to ask when considering the 14th amendment due process voluntariness test?

Answer 19

If the inducement overbore the defendant’s will and critically impaired his capacity for self determination.

Question 20

If the suspect was at the scene of a crime and was asked what he was doing and he stayed silent after getting his Miranda warnings, then he gave an explanation at trial, can the prosecution use his silence to impeach him?

Answer 20

No, that would be a violation of due process

Question 21

What are the three important values that allow an admission or confession to be barred under the due process voluntariness test?

Answer 21

• if the confession has doubtful reliability because of the METHODS used to get it
  – if the confession was gotten by 0FFENSIVE methods even if reliability wasn’t a problem
  – if the confession was gotten under circumstances where the defendant’s FREE WILL was significantly impaired by police but they didn’t use offensive practices.

Question 22

What are different factors that are considered to determine if a confession was voluntary under due process?

Answer 22

– the characteristics of the defendant: low education level, low IQ, poor emotional stability
- details of the interrogation: deprivation of food or water, not getting to use the bathroom, number of police, police demeanor, etc.

Question 23

In order for a confession to be deemed voluntary, what is required?

Answer 23

It must be the product of the suspect’s free will based on the totality of the circumstances

Question 24

If a suspect was interrogated all night by the police and then the police had his friend who is also a cop tell him that he will be fired if he didn’t confess, is that voluntary?

Answer 24

No, because the police wore down his free will

Question 25

What are examples of things that would require suppression of a confession?

Answer 25

Inherently coercive cop conduct, actual or threatened violence, deprivation, whipping, slapping, withholding food/water/sleep, keeping the suspect naked, holding a gun to his head, threatening mob violence, extended period of incommunicado interrogation, moving him from place to place, questioning by different people until he is disoriented, solitary confinement, turning his friends and family away, if S is a foreign national - denying him consular notification, confession made in response to a promise to drop the charges/not prosecute/allow medical treatment/reduce punishment, psychological pressure, misrepresentation of the law

Question 26

What does it mean if there was incommunicado interrogation by the police?

Answer 26

Uninterrupted interrogation where the person is kept in confinement for a long time, preventing the prisoner from communicating with counsel, not informing the outside world of the defendant’s whereabouts, denying his friends/relatives/lawyers access to him

Question 27

What does the Vienna convention say?

Answer 27

If a foreign national is detained in another country and he requests it, authorities must properly inform the consulate of his detention and advise the detainee of this rights. Violation of this doesn’t suppress the defendant’s statements.

Question 28

If there are characteristics of the defendant that show that he has a less than average ability to resist, and this is accompanied by a police officer overreaching, is his statement considered to be voluntary under the due process voluntariness test?

Answer 28

Generally no. It depends on what the police knew or should’ve known

Question 29

What are things that are included in characteristics that would show the defendant had less than an average ability to resist police interrogation?

Answer 29

Age, sex, race, physical injury, illness, fatigue, mental illness, mental deficiency, emotional distress, abnormality from drugs or alcohol, education level, prior experience with the police

Question 30

What is the critical component that is needed for there to be a 14th amendment due process voluntariness challenge?

Answer 30

State action. There must be coercion from the government. Outrageous behaviour by private parties that produces confessions doesn’t make evidence in admissible

Question 31

If a snitch in jail got the full story of a defendant molesting a little girl in exchange for protection, does that violate due process?

Answer 31

Yes, because the snitch was acting for the FBI as an agent and his contact was coercive because of a threat of violence

Question 32

If someone makes a confession because of mental illness, is that considered to be involuntary?

Answer 32

No, because there is no government coercion. For example - if the voice of God told the guy to confess

Question 33

If someone that wasn’t the police threatened violence and made someone else confess, would that be suppressed under the due process?

Answer 33

No there was no state action

Question 34

If a confession violates due process so that it is inadmissible, does that mean is that it can’t be used for any purpose, even impeachment?

Answer 34

Yes