Self Incrimination - 5th Amendment

United States v. Patane (2004) Facts: Defendant was arrested for violating a restraining order by harassing his ex-girlfriend. Defendant was arrested and the officer began to give the Miranda warnings. Defendant claimed he knew his rights and cut the officer off. The officer then asked about the gun and the defendant allowed the officer to seize it.

"Fruit of the Poisonous Tree" Holding: The gun is admissible. Rules: 1. Physical evidence found on the basis of a suspect's voluntary but unwarned statements is admissible at trial. Miranda warnings are required to protect a suspect's rights under the Self-Incrimination Clause, but admission of physical evidence found on the basis of a suspect's voluntary but unwarned statement does not violate the clause. • Miranda's general presumption that unwarned statements are coerced serves only to protect a suspect's privilege against self-incrimination with respect to TESTIMONIAL evidence, and therefore does not extend to physical evidence found as a result of voluntary, unwarned statements.

Overview of Self-Incrimination 5th Amendment - What is Interrogation

- Express questioning and words or actions that are reasonably likely to elicit an incriminating statement

Overview of Self-Incrimination 5th Amendment - What is a Custodial Setting

- Whether a reasonable person would feel free to leave and believes interrogation occurred - Factors: location, duration, statements, physical restraints, release at end, age

Brown v. Mississippi (1936) Facts: Defendant was beaten until a confession for murder was obtained.

Violation Based on Due Process Rule: Confessions obtained by torture are involuntary and are not admissible as a violation of Due Process. It is unconstitutional to obtain a confession by torture.

Spano v. New York (1959) Facts: Defendant shot someone and turned himself in. He got a lawyer and spoke to a friend who was a police officer. The attorney told him not to answer questions but attorney was not present at the police station. The questioning lasted 8 hours. The friend played on sympathy in order to obtain confession from the defendant (trickery).

Violation Based on Due Process Rule: A confession obtained as a result of fatigue and playing on sympathy is a violation of 14th Amendment Due Process and is inadmissible. • Here there was also violation of a right to counsel because there had been an indictment.

Ashcroft v. Tennessee (1944) Facts: Defendant was questioned for more than 36 hours without a break for sleep by a chain of experienced officers, resulting in a confession and conviction of murder and accessory before the fact.

Violation Based on Due Process Aftermath of Brown v. Mississippi Rule: A confession obtained after interrogating a subject for 36 hours straight without rest will be held to have been made involuntarily and thus a denial of Due Process of law under the Fourteenth Amendment.

JDB v. North Carolina (2011) Facts: Police suspected 13-year-old defendant of involvement in house break-ins. The police pulled him out of school and questioned him about the break-ins without giving him Miranda warnings. Defendant confessed to the break-ins during this questioning.

Age Rule: The age of a child subjected to police questioning is relevant to whether the child is in custody under Miranda. • Children may not understand fully like an adult would and might feel more pressure.

Application of Fifth and Sixth Amendments

Custody: Fifth Amendment Miranda (Yes), Sixth Amendment (No - Massiah) Indictment: Fifth Amendment Miranda (No), Sixth Amendment (Yes) Interrogation: Fifth Amendment Miranda (yes), Sixth Amendment (No, but must be action by police designed or reasonably likely to elicit statement)

Overview of Self-Incrimination 5th Amendment - Violation of Due Process

Requirements: - A statement must be made voluntarily and without coercion otherwise violation of Due Process - Silence if given Miranda cannot be used, if not no violation

Andresen v. Maryland (1976) Facts: Documents were seized from defendant's home office pursuant to a search warrant that was deemed to be lawful. The documents obtained were seen to incriminate defendant.

Business Records Exception Rule: BUSINESS records seized lawfully do not violate 4th Amendment and are admissible even if they contain self-incriminating testimonial evidence. EXCEPTION: If the act of producing documents through subpoena can constitute a violation of 5th Amendment, the act of producing could not be permitted.

Counselman v. Hitchcock (1892) Facts: Defendant was asked at a grand jury questions involving whether he was given any kickbacks while in office. He refused to answer and was then granted immunity. Immunity was given by the government and could not be used against him later.

Immunity Rule: As long as evidence arising from compelled testimony could incriminate the individual in any way, the 5th Amendment guarantee against self-incrimination was not satisfied.

Kastigar v. United States (1972) Facts: Defendants were subpoenaed to go to grand jury. The district court granted the defendants immunity under 18USC Section 6002 and 6003 and ordered the defendants to testify. The defendants argued that the immunity granted was not as broad as the privilege against self-incrimination and could not justify compulsion. The district court ordered them to testify and when they refused they were found in contempt.

Immunity Rule: So long as immunity grant provides a level of protection to a defendant that is commensurate with the scope of 5th Amendment privilege, it is constitutional for the government to compel an individual to testify. • Do not need transactional immunity which would go much further and immunize the witness from prosecution for any crime that the testimony pertains to and such a result is not required by the Fifth Amendment.

Murphy v. Waterfront Commission (1964) Facts: Defendant had immunity from commission under NY and NJ law and refused to testify fearing he would be prosecuted under federal law.

Immunity Rules: 1. commission could compel testimony, but reason to compel is because government is barred from using the testimony. 2. If someone gives termony under grant of immunity from state, that testimony cannot be used in the state or in another state or federal case (transactional immunity - immunity from anything being used in that particular transaction or case)

Harris v. New York (1971) Facts: Defendant was arrested for selling drugs to an undercover police officer. He made incriminating statements before Miranda warnings were given. At trial the prosecution attempted to impeach defendant's earlier testimony by asking questions about Mirandized statements that defendant made following arrest. The jury was instructed that the statements could only be used to assess defendant's credibility.

Impeachment Rule: Voluntary statements made by a suspect who has not received Miranda warnings may be admitted at trial for impeachment purposes. (An involuntary statement is NEVER admissible for any purpose against the accused, including impeachment purposes).

Rhode Island v. Innis (1980) Facts: Defendant was arrested of kidnapping, robbery and murder. Defendant was read his rights and said that he understood and wanted a lawyer. In the police car, the two officers began speaking to each other, expressing their concern that a student from the nearby school for handicapped children would find the weapon and hurt himself. Defendant then told the police to turn around and he would show them where the gun was. Before pointing out the gun's location the defendant was again read his rights and he said he understood but did not want any children to get hurt. He then pointed out where the gun was.

Interrogation, Custodial Setting, In Custody Under 5th Amendment Rule: "Interrogation" refers to express questioning or any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. • Here there is nothing in the record to suggest that the officers were trying to elicit a response from defendant or that they should have known their comments would elicit a response.

Howes v. Fields (2012) Facts: Defendant was arrested and convicted for an undisclosed crime. While in jail defendant was escorted from his cell to a conference room by an officer. Defendant was questioned by sheriffs about criminal conduct before his conviction. No Miranda warnings were given. Defendant was told multiple times that he was free to return to his cell. Defendant remained free of restrains and the door to the room was open at times. At one point defendant stated he no longer wanted to answer questions. He never asked to return to his cell. He was questioned between 5-7 hours. He confessed to third-degree sexual conduct.

Interrogation, Custodial Setting, In Custody Under 5th Amendment Rule: Just because you are in a police station compared to home doesn't mean you are within a custodial setting. Factors to look at to determine if the person is "in custody": • Location, duration, statements made during interview, physical restrains during questioning, release of interviewee at end.

Oregon v. Mathiason Facts: Defendant was suspected of burglary. The officer left a note at defendant's home asking him to call. Defendant called and the officer asked him to meet at the state patrol office. They went into an office there and defendant was told he was not under arrest but was suspected of the burglary. The officer told defendant that his truthfulness may be considered by the judge and DA and then falsely told defendant that his fingerprints were found at the crime scene. Defendant then confessed to the burglary. The officer then gave him his Miranda warnings and taped the confession. Defendant left at the end.

Interrogation, Custodial Setting, In Custody Under 5th Amendment Rule: Miranda warnings must be given when there has been such a restriction on a person's freedom as to render him "in custody." Here, there was no custodial setting because he was free to leave at the end and the statement came voluntarily.

Colorado v. Connelly (1986) Facts: Defendant openly confessed to police that he killed someone in Colorado. The psychiatrist testified that he was schizophrenic and that mental condition motivated confessions but not his cognitive ability.

Mental State of Confession Rule: A statement made by a mentally ill person is not involuntary for purposes of the Due Process Clause if there is no coercive behavior by police. In this case the defendant's statements might be unreliable and therefore inadmissible under the state rules of evidence, but there was no violation of the Due Process Clause.

Missouri v. Seibert (2004) Facts: Was questioned without Miranda warnings about murdering a boy in a fire. They obtained a statement and then gave Miranda warnings and obtained another statement.

Miranda Given After Statement Made Holding: The post-Miranda confession (second confession) is not admissible when a prior confession has been given UNLESS the Miranda warning and accompanying break are sufficient to give the defendant the reasonable belief that he can decide not to speak with police. (Distinguished from Elstad) • Here, the second statement was not admitted by the court. The police had a strategy in their manual that deliberately tried to undermine Miranda to get an incriminating statement. • An intermediary warning is likely to confuse the suspect and you should look at: o 1. Completeness and detail of questioning o 2. Overlapping content of both statements o 3. Timing of first and second statement o 4. Continuity of police personnel; and o 5. If questioning was continuous

Oregon v. Elstad (1985) Facts: After obtaining an arrest warrant, the officers went to defendant's home. Officer said that he believed defendant was involved in the robbery and he replied that he in fact was. Once they arrived at the police station they read defendant his Miranda warnings which he then waived. Defendant made a full statement implicating himself in the burglary.

Miranda Given After Statement Made Rule: A suspect can make a statement that is admissible in court after being read his Miranda warnings, even when he previously made an unwarned statement, because the initial failure to read a suspect his Miranda warnings does not taint later voluntary statements. • Miranda is not a constitutional rule.

Garrity v. New Jersey (1967) Facts: Defendants were officers who were being investigated for fixing traffic tickets. Before being questioned they were told statements made could be used in criminal proceeding but if they refused to answer they would be terminated from employment.

Pleading 5th When Fired Rule: The 14th Amendment prohibits the use in criminal proceedings of incriminating statements made by public employees under threat of termination and it would be a violation of defendant's Due Process rights. • The employees cannot be said to have been free to choose silence and their confessions cannot be regarded as voluntary.

Gardner v. Broderick (1968) Facts: Plaintiff was a police officer subpoenaed to testify before a grand jury investigating allegations of corruption. Plaintiff was asked to sign a waiver of his constitutional privilege against self-incrimination and was informed that he would be terminated if he refused to sign the waiver. He refused to sign and was fired. He filed suit seeking reinstatement to his position as a police officer.

Pleading 5th When Fired Rule: A public employee may not be terminated from employment for refusing to waive the constitutional privilege against self-incrimination. • A police officer may appropriately be subjected to termination for refusal to provide testimony related to the exercise of his public duty, however the officer must also be granted immunity from incrimination by his own statements in any subsequent criminal proceedings. Here, the plaintiff was not fired for refusing to testify about his conduct under employment, but was fired for refusing to waive the constitutional privilege against self-incrimination. That right cannot be involuntarily waived under coercive circumstances.

New York v. Quarles (1984) Facts: A woman identified a man as her rapist to a police officer in a supermarket. The officer frisked the respondent and found an empty shoulder holster and asked him where the gun was. The defendant said "the gun is over there," and the officer retrieved it and then gave the defendant his Miranda warnings.

Public Safety Rule: There is a public safety exception to the requirement that Miranda warnings be given before a suspect's answers can be admitted into evidence. • Here, there are strong public safety concerns justifying the court creating an exception to the requirement that officers provide Miranda warnings before asking questions. The officer's trying to retrieve a weapon he knew was somewhere nearby so that no accomplice would pick it up and start shooting protected the public, and this type of action should not be discouraged.

Overview of Self-Incrimination 5th Amendment - Violation of Fifth Amendment (Miranda)

Requirements: - Application: (1) in custody (2) custodial interrogation (3) must make a clear and unambiguous request for lawyer and for waiver, and (4) only applies testimonial evidence - Miranda is a prophylactic rule - Where Applied: unaware speaking with police and make incriminating statement, impeachment if the statement was voluntary, withholding warnings, evidence from body, immunity, business records, public safety, being fired, plea bargaining, age, mental state - Not Extended To: fruits doctrine, not a constitutional rule

Overview of Self-Incrimination 5th Amendment - Violation of Sixth Amendment

Requirements: - Statement made after indictment or judicial proceeding began without counsel - Undercover informant does not ask questions, only listens no violation - Can be used for impeachment

Salinas v. Texas (2013) Facts: Two brothers were shot and killed in their home. Defendant agreed to hand over his shotgun for ballistics testing and to go to the police station for questioning. The interview lasted one hour and both parties agree it was non custodial and Miranda warnings were NOT given. Defendant answered the officer's questions for most of the interview but went silent when asked if the shotgun would match the shells recovered at the murder scene. After a few moments of silence, the officer asked additional questions which defendant answered. The prosecution used his silence in response to the officer's question as evidence of his guilt.

Silence as Admission of Guilt Rule: Fifth Amendment's privilege against self-incrimination does not extend to defendants who simply decide to remain mute during questioning; they must explicitly claim that protection. Exceptions to this principle: • That a criminal defendant does not need to take the stand at trial in order to explicitly claim this privilege; and • That failure to claim this privilege must be excused when that failure was due to government coercion.

Doyle v. Ohio (1976) Facts: Defendant did not speak to police when he was questioned, but at trial he claimed that he was framed for a crime.

Silence as Admission of Guilt Rule: A criminal defendant's Due Process rights are violated when the trial court allows the prosecution to cross-examine the defendant about an exculpatory version of events that the defendant did not reveal to police after receiving Miranda warnings. • The Miranda warnings carry an implicit assurance that no penalty will attach to the exercise of the right to remain silent. • Use of the defendant's silence for impeachment purposes, when the government has given the defendant reason to believe that his silence will not be used against him, violates the defendant's rights under the Due Process Clause of the 14th Amendment.

Pennsylvania v. Muniz (1990) Facts: Defendant was taken in for drunk driving and was asked questions such as when his sixth birthday was and other basic questions. Much of this was filmed.

Testimonial Evidence Rules: 5th Amendment ONLY applies to testimonial evidence, when a person is asked to speak that evidence is admissible for showing physical aspects of speech, not for content of speech. EXCEPTION: Answers to questions can be admissible if they were part of police routine booking. • Testimonial: whenever a suspect is asked for a response requiring him to communicate an express or implied assertion of fact or belief, establishing content • Admissibility: asking someone to hear the sound of a voice may be used for the truth of the matter asserted

Watts v. Indiana (1949) Facts: Defendant was interrogated for four straight days during the day and two of the days were spent in solitary confinement. He ended up making incriminating statements resulting in his conviction for murder.

Violation Based on Due Process aftermath of Brown v. Mississippi Rule: Use of a confession obtained by relentless police interrogation is deemed involuntary and thus a violation of the Due Process Clause of the Fourteenth Amendment.

Massiah v. United States (1964) Facts: After defendant was released from jail, police placed a listening device in conspirator's car and conspirator elicited incriminating statements that were then sent to an agent.

Violation Based on Sixth Amendment Rule: Incriminating statements made after indictment in the absence of counsel is inadmissible under the 6th Amendment, but may be used against alleged co-conspirators or accomplices. • Note: If no indictment had occurred, evidence would have been admissible.

Brewer v. Williams (1977) Facts: Defendant kidnapped a child and was arraigned in Davenport but had an attorney in Des Moines. The attorney advised him not to speak without counsel present. When only the officer and defendant were in the car, the defendant was convinced by the officer to give directions to the body of the girl.

Violation Based on Sixth Amendment Holding: The statement was NOT admissible because it violated the right to counsel. Once the right to counsel attaches, police cannot deliberately elicit any incriminating statements. Rule: After judicial proceedings commence against a defendant, no incriminating statements can be used against him without intentional relinquishment of right to counsel, even when formal questioning did not take place.

Illinois v. Perkins (1990) Facts: Defendant was in jail for battery but it was suspected that he committed murder. Police placed an undercover agent in the cell. Defendant confessed to the murder to the undercover agent.

Violation Based on Sixth Amendment Rule: Do not need to give Miranda warnings when suspect is in custody and unaware that he is speaking to a law enforcement officer and then gives a voluntary statement. Confession will be admissible. (Otherwise all undercover agents would not be able to use the incriminating statements). • Miranda does not prohibit undercover activities that fall short of coercion, and voluntary confessions obtained through those activities are admissible in court.

Kuhlman v. Wilson (1986) Facts: Government informant was in a cell with the defendant. The informant only listened and did not ask questions and the defendant made incriminating statements.

Violation Based on Sixth Amendment Rule: The 6th Amendment does not require suppression of statements made by a prisoner to a covert police informant if the informant only listened passively and did not deliberately elicit those statements. There must be some deliberate action on the part of police for a violation of the Sixth Amendment to occur.

Texas v. Cobb (2001) Facts: Defendant was indicted and charged with burglary. He was given counsel and was out on bail. The defendant later confessed to murder for which he was not indicted and without counsel. The burglary and murder arose out of the same occurrence.

Violation Based on Sixth Amendment Rule: The 6th Amendment right to counsel once triggered by the initiation of formal criminal proceedings, does not attach to the investigation of unrelated offenses arising from the same set of facts that led to the original charge.

Escobedo v. Illinois (1964) Facts: After being arrested and taken into police custody as a suspect in the murder of his brother-in-law, the defendant asked to speak to his attorney. He was not allowed to speak to his attorney as the officers said they had not completed questioning. Defendant was also not warned of his right to remain silent before the interrogation. He was convicted of murder.

Violation Based on Sixth Amendment Rule: When the inquiry is not a general inquiry and, • 1. Focus is on a particular suspect, • 2. Suspect is in police custody, • 3. Interrogation leads to incriminating statements, • 4. The suspect has requested and has been denied right to counsel. • 5. Not told right to remain silent, that denial is a violation of 6th Amendment and no statement elicited by police during interrogation may be used against defendant in a criminal trial. • Note: Escobedo extended to pre-indictment context when defendant is arrested.

Miranda v. Arizona (1966) Facts: Defendants were arrested and taken to the police station. They were not told they have the right to remain silent or the right to an attorney.

Violation Under 5th Amendment Rules: Factors to be told to the defendant: after arrest Miranda states • 1. Defendant must be warned prior to questioning that he has the right to remain silent • 2. Anything could be used in a court of law • 3. Right to an attorney • 4. If cannot afford an attorney, one will be appointed Elements: when Miranda applies • Defendant is in custody • Defendant must be aware of the right to counsel and right to remain silent • Statement cannot be used unless waived knowingly and intelligently • Unless legislature uses other effective means than warnings to produce the same goal, these rules should be used. Note: This only applies to a custodial interrogation and is a prophylactic rule (a rule judicially crafted that overprotects a constitutional right), not a constitutional right.

Dickerson v. United States (2000) Facts: Defendant made a statement to the FBI concerning a bank robbery where he was a suspect. The government agents did not notify the defendant of his rights outlined in Miranda. The state relied on federal law 18 USC Section 3501 that allowed the admission of statements as long as the suspect was making them voluntarily.

Violation Under 5th Amendment Rule: Congress cannot overrule Miranda because it was a decision based on the Constitution rather than simply court-made law.

Moran v. Burbine (1986) Facts: Petitioner was questioned but did not waive Miranda rights. Unknown to petitioner, sister was trying to get an attorney for the petitioner. Petitioner was not told an attorney was obtained and he eventually waived Miranda right.

Violation Under 5th Amendment Rule: Once determined the defendant waived Miranda rights voluntarily, any incriminating statement made by him pre-indictment may be used against him even if the defendant's attorney was misinformed by police as to interrogation or the suspect was not informed of attorney's rights to reach him. • Note: Escobedo overruled because right to counsel attaches at initiation of proceeding, not arrest; wasn't yet indicted.

Berghuis v. Thompkins (2010) Facts: Defendant didn't answer questions for the majority of the investigation and defendant eventually gave an incriminating statement. Defendant made a motion to suppress his statements, claiming that he had invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his statements were involuntary.

Violation Under 5th Amendment Rule: Unless and until the suspect actually stated that he was relying on the right to remain silent, his subsequent voluntary statements could be used in court and police could continue to question him. • The mere act of remaining silent on its own is insufficient to imply the suspect has invoked his rights.

Davis v. United States (1994) Facts: Defendant was brought into police station for questioning and waived Miranda rights. Later on he stated he may want a lawyer. He was hesitant again and then later said he did not want a lawyer.

Violation Under 5th Amendment Rules: 1. A suspect must make a clear and unambiguous request for a lawyer and if he doesn't then law enforcement officers can keep asking questions. 2. Edwards v. Arizona - if defendant gets Miranda warnings and waives his rights and then during questioning he changes his mind and refuses to answer, then police have to stop.