Criminal Procedure 5th amendment

5th amendment in the trial context - immunity - use and derivative-use immunity

"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. The Supreme Court has held that the grant of "use and derivative-use" immunity is all that is constitutionally required to compel the testimony of a witness. Testimony encouraged by a promise of immunity, however, is considered coerced and involuntary.

Fruits of a tainted confession - second confession

A Miranda violation does not automatically require the suppression of incriminating statements made by the defendant after receiving Miranda warnings. The giving of Miranda warnings generally removes the "taint" of the prior Miranda violation. However, a second confession may be suppressed when the circumstances indicate that the substance of Miranda has been drained away. For a plurality of the court, the test is an objective one—a reasonable person in the suspect's position would not have understood the Miranda warnings to convey a message that the suspect retained a choice about whether to remain silent. For the justice who cast the deciding vote (Justice Kennedy), the test is a subjective one—did the police act with an intent to circumvent the purpose of the Miranda warnings

Waiver

A defendant may knowingly and voluntarily waive his Miranda rights. The burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowingly and voluntarily. (Keep in mind that a defendant's mental illness does not necessarily negate the voluntariness requirement; there must be coercive police activity for a confession to be involuntary. There can be no effective waiver, however, until the Miranda warnings are properly given. Silence on the part of the suspect is not sufficient to waive his Miranda rights. However, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Once effectively waived, the police are not required to inform the suspect of the defense counsel's efforts to reach the defendant by telephone and need not inform counsel that the defendant is being questioned.

5th amendment in the trial context - scope of privilege

A defendant may refuse to testify at a criminal trial. He may also refuse to answer questions in other proceedings (i.e., civil depositions) when the answers might incriminate him in future criminal proceedings. The privilege does not prevent the prosecutor from using prior conflicting statements to impeach the defendant once the defendant takes the stand. This is called "opening the door" by the defendant.

Waiving the privilege

A defendant waives the privilege by taking the witness stand; a witness waives the privilege by disclosing self-incriminating information in response to a specific question. Having taken the stand, the defendant cannot assert the privilege in response to the prosecution's proper cross-examination of his testimony, including impeachment questions.

Invoking the privilege - Defendant

A defendant who wishes to invoke the privilege simply invokes it by not taking the stand. Included in this right is the state's inability to compel the defendant to testify. The prosecution cannot bring the defendant's failure to take the stand to the jury's attention.

Persons

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.

Compulsory Disclosure - Subpoena

A person who is served with a subpoena requiring the production of possibly incriminating documents may invoke the privilege if the act of turning over the documents constitutes self-incriminating testimony

Invoking the privilege - Witness

A witness, on the other hand, may be compelled to take the stand and can invoke the privilege only in response to a specific question.

5th amendment in the trial context - voluntariness

Admissions of incriminating statements made during a court-ordered psychiatric examination are generally deemed involuntary and not admissible at trial unless the defendant is given Miranda warnings before the interview and waives his rights. Business papers voluntarily prepared by an individual, or required records, such as tax returns, are not protected.

Compliance - right to silence invoked

As with the Fifth Amendment right to counsel, 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. However, if after the defendant is released from custody, the defendant indicates a desire to speak to police, then a subsequent interrogation would be lawful, as long as the defendant was not coerced. The defendant must again receive fresh Miranda warnings

Counseling clients to invoke the privilege

Attorneys may counsel their clients to invoke the privilege and will not be held in contempt of court. Otherwise, the person invoking the privilege would be denied his Fifth Amendment protection.

Custodial interrogation

Custodial interrogation is questioning initiated by law-enforcement officers after a person has been taken into custody.

Custodial interrogation - Custodial

Custody is a substantial seizure and is defined as either a formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest. A person is in custody when he is not free to leave or is otherwise deprived of his freedom in any significant way. The test is whether a reasonable person would believe that he is not free to leave. A child's age is a relevant factor to consider when determining whether the child is in custody for the purposes of Miranda. Interrogating a person at the scene of a crime or during a field investigation does not constitute custody.

Fruits of a tainted confession - physical evidence

Derivative physical evidence (e.g., a gun) obtained as a result of a non-Mirandized confession (i.e., a confession that is inadmissible due to the police's failure to give Miranda warnings) is admissible, so long as that confession was not coerced.

Compulsory Disclosure - Warrant for seizure documents - Diaries

Generally, the government may not compel production of a diary. The contents of a diary are similar to oral testimony, and as such are considered testimonial in nature. Because one cannot be compelled to testify against himself, the government may not compel production of documents that are similarly testimonial in nature. Note, however, that if the diary's production is not compelled, e.g., it is found incident to a lawful arrest, its contents likely are admissible (assuming the entries were made voluntarily).

Custodial interrogation - Custodial - effect of imprisonment

Imprisonment alone does not necessarily create a custodial situation within the meaning of Miranda. The questioning of a prisoner, who is removed from the general prison population, about events that took place outside the prison is not categorically "custodial" for Miranda purposes. A standard, objective "totality of circumstances" analysis applies when an inmate is interviewed, including consideration of the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted. Howes v. Fields, 565 U.S. ____, 132 S. Ct. 1181 (2012) (holding that defendant was not in custody for purposes of Miranda during seven-hour interrogation that lasted well into the night, because he was told at the outset of interrogation, and was reminded again thereafter, that he could leave and go back to his cell whenever he wanted).

The 5th amendment in a police interrogation context

In the seminal case of Miranda v. Arizona, the U.S. Supreme Court held that a suspect has a constitutional right not to be compelled to make incriminating statements in the police interrogation process. Miranda v. Arizona, 384 U.S. 436 (1966). Miranda once was considered to be necessary in nearly every encounter with police. However, the Supreme Court has been gradually narrowing the scope and limiting the use of Miranda. Any incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to secure the privilege against self-incrimination (i.e., informed the suspect of his Miranda rights). An incriminating statement includes not only a confession, but other inculpatory statements, and is subject to suppression even though the defendant intended the statement to be exculpatory.

Custodial interrogation - Interrogation

Interrogation refers not only to express questioning, but also to any words or actions that the police know or should know are likely to elicit an incriminating response.

Use of statements taken in violation of Miranda - involuntary confessions

Involuntary confessions (e.g., those produced by coercion) cannot be used either substantively or for impeachment purposes. If a coerced confession is admitted into evidence, however, reversal is not automatic; the harmless-error test is applied, and the conviction will stand if the prosecution can show other overwhelming evidence of guilt.

Custodial interrogation - Interrogation - Break in questioning

Miranda protections carry over when there is a break in the interrogation process attributed to a second police agency continuing an interrogation after the first police agency has stopped questioning the suspect. EXAM NOTE: Remember to apply the Miranda warnings only when an individual is subject to a custodial interrogation. If the police have no intention of questioning the individual, or if the individual is not in police custody, then the Miranda warnings are not applicable.

Exceptions to the Miranda requirement - undercover police

Miranda warnings are not required if the suspect being questioned is not aware that the interrogator is a police officer.

5th amendment in the trial context - immunity - transactional immunity

Often called "blanket" or "total" immunity, "transactional immunity" fully protects a witness from future prosecution for crimes related to her testimony.

Compliance

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. The failure to give a suspect the Miranda warnings does not require suppression of physical fruits of the suspect's "unwarned but voluntary statements.

Use of statements taken in violation of Miranda - impeachment purposes

Statements taken in violation of Miranda may be used to impeach the credibility of the criminal defendant if he takes the witness stand and gives testimony at variance with his previous admissions. Harris v. New York, 401 U.S. 222, 224 (1971). To be admissible for impeachment, the statement must be voluntary and trustworthy. The impeaching admissions may not be used directly in deciding ultimate issues of guilt or innocence; they may only be used in determining the defendant's veracity. The defendant's silence after being given his Miranda warnings cannot be used by the prosecution to oppose an insanity defense.

5th amendment in the trial context - immunity - federal and state immunity

Testimony under a grant of immunity may not be used by another U.S. jurisdiction to prosecute the defendant. Thus, a state grant of immunity will preclude admission of the testimony in a federal proceeding.

Exceptions to the Miranda requirement - routine booking

The "routine booking question" 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.

Compulsory Disclosure - Warrant for seizure documents

The Fifth Amendment does not prevent law-enforcement officials, pursuant to a valid warrant, from searching for and seizing documents that would incriminate a person.

5th Amendment Privilege

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.

Compliance - timing

The Miranda warning must be given before interrogation begins. If interrogation is stopped for a long duration, the warning must be given again.

Use of statements taken in violation of Miranda

The failure to give Miranda warnings is not a violation until a statement obtained without the use of warnings is used at trial.

Nature of proceedings

The privilege extends to a defendant in any proceeding, whether civil or criminal, formal or informal, if the answers provide some reasonable possibility of incriminating the defendant in future criminal proceedings. However, the privilege cannot be invoked when the government requires civil records to be maintained and reported on for administrative purposes, because they are public records, unless those records fulfill a registration requirement of a select group of inherently suspect criminal activities and compliance would require self-incrimination. The privilege does not extend to identification requests at Terry stops. A violation occurs the moment the compelled statements are used against a person.

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. Fisher v. United States, 425 U.S. 391 (1976). However, a person can refuse to comply with a requirement to register or pay a tax where the requirement is directed at a select group "inherently suspect of criminal activities." (occupational tax on bookies)

Testimonial Evidence

The privilege protects only testimonial evidence. 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.

Prosecutorial comment

The prosecutor may not comment on the defendant's exercise of the privilege against self-incrimination at trial. It is per se reversible error.

Compliance - right to counsel invoked

The right to counsel under the Fifth Amendment is not the same as the constitutional requirement of the right to counsel under the Sixth Amendment. The right to counsel under the Fifth Amendment is not automatic. To invoke the right to counsel under the Fifth Amendment, the defendant must make a specific, unambiguous statement asserting his desire to have counsel present. If a suspect makes an ambiguous statement regarding the right to counsel, the police are not required to end the interrogation or to ask questions or clarify whether the suspect wants to invoke the right. However, once that right to counsel is invoked, all interrogation must stop until counsel is present. If the defendant voluntarily initiates communication with the police after invoking his right to counsel, a statement made by the defendant, such as a statement that the defendant spontaneously blurts out, can be admissible because it is not made in response to interrogation. In addition, police may re-open interrogation of a suspect who has asserted his Fifth Amendment right to counsel if there has been a 14-day or more break in custody (such as a the suspect's release back into the general prison population). In such circumstance, the defendant must again receive fresh Miranda warnings.

Invocation of privilege should not impose a burden

The state cannot penalize a defendant for invoking his right against self-incrimination by not testifying or cooperating with authorities. 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 the harmless-error test. However, if during trial the defendant claims that he was not allowed to explain his story, then the prosecution may comment on the defendant's failure to take the stand.

Compliance - content

The warnings, which must be given before interrogation begins, need not be a verbatim repetition of the language used in the Miranda decision. Law-enforcement officials must inform defendants: 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.

Compliance - grand jury

There is no requirement to give Miranda warnings to a witness testifying for the grand jury. The witness may, however, consult with an attorney outside the grand jury room.

Custodial interrogation - Interrogation - voluntariness of statement

Volunteered statements are not protected by Miranda, as they are, by definition, not the product of interrogation. A confession is involuntary only if the police coerced the defendant into making the confession. Whether a statement is voluntary or coerced is determined based on the totality of the circumstances (including facts such as the conduct of the police, the characteristics of the defendant, and the time of the statement). 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. Trickery or false promises by police may render a confession involuntary. The defendant's age, state of health, education, or intoxication are all factors in determining the coercive nature of the confession. Although a potentially significant factor, the defendant's mental condition alone cannot violate the voluntariness standard. There must be coercive police activity for the confession to be found involuntary.

Exceptions to the Miranda requirement - public safety

When the public's safety is at risk, the police are not required to give Miranda warnings before questioning a suspect.

5th amendment in the trial context - immunity

The prosecution may compel incriminating testimony (at trial or before a grand jury) if it grants immunity to the individual and the individual must testify. The testimony cannot be used against the individual, directly or indirectly, in a subsequent prosecution.