Criminal Procedure: Investigation - Fifth Amendment

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Fifth Amendment: Confessions -Limitations on Confessions: Miranda - Miranda v. Arizona (1968) Interrogation Practice - what is courts holding in Miranda?

1. 5A protection extend to police station and custodial interrogation 2. 5A pertains to interrogation to station house 3. need to implement a new procedural safeguard 4. interrogation techniques constitute compulsion always, because it is compulsion no one is free under circumstances, every time you speak, you are being compelled to speak. 5. when a suspect is taken into custody and is subject to questioning, a suspect's statement gained as a result of custodial interrogation cannot be used against that person at trial unless: a. the government givens the specific warnings; and b. after receiving the warning, the suspect validly waivers her rights.

Fifth Amendment: Confessions Waiver and Miranda - Miranda Waiver Reconceived - North Carolina v. Butler (1979)

1. As long as the suspect knowingly and voluntarily waived her rights: a. express statement of waiver is not necessary b. written statement of waiver is not necessary

Fifth Amendment: Confessions Waiver and Miranda -Ending the Presumption after Invocation? Break in Custody. Maryland v. Shatzer (2010)

1. Break in custody may break Edwards presumption, because it does not follow you for life, meant to deal with the one specific custodial interrogation. 2. has to be a break of at least 14 days. a. point of 14 days is to prevent getting around Edwards by just letting them out and pulling them back in. 3. detectives go to interrogate Shatzer in his jail cell. 4. Shatzer spoke a little, then invoked right to attorney. At which point he is released into the general population. 5. The question: is the second statement admissible after 3 years of no questioning? 6. Suspect was in prison for sex crimes and was given Miranda warnings which he invoked. Suspect released from prison after he served his time. Government found more information about the sex crime where he was accused of molesting his three year old son. Government sought to re-question the suspect

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - The Fifth Amendment protects an individual whenever she is faced with:

1. Compulsion to 2. Testify in such a way that 3. In a criminal case (now or later) 4. The testimony could be used against her.

Fifth Amendment: Confessions - Exceptions to the Miranda Rule -Impeaching the Witness with Miranda Defective Statement - Involuntary confessions --> absolute exclusion.

involuntary under DPC, then fruits doctrine does apply and you would not be able to use to impeach your witness.

Fifth Amendment: Confessions Waiver and Miranda - Invocation of the right of Counsel - Edwards v. Arizona - Two Part Test

Two-Part Test 1. did suspect "initiate" contact 2. was there a voluntary and knowing waiver (totality of circumstances test)

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Interrogation - Rhode Island v. Innis (1980) - Holding

Under Miranda, "interrogation" refers to 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.

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Objective Test - Notes

is the objective test like Mendenhall? a stop is not custody. Do not use Mendenhall test to show if someone is in custody.

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Custodial Interrogations: Undercovers - Illinois v. Perkins (1990)

1. Holding: No Miranda required for undercover work 2. court said undercover is allowed, and Miranda does not apply to these undercover situations and the reason why is because when looking at why we have Miranda is because we are trying to prevent coersion and police pressure in a dominated atmosphere, but here we do not have this problem. a. do not have the Hallmarks of Miranda b. Miranda was not meant to protect people who are boasting about a crime to a cellmate" 3. Perkins unwarned statements were admissible because Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons who they believed to be their cellmates 4. Purpose of Miranda is to protect suspects from police pressure in a dominated atmosphere 5. Perkins rule: if there is an undercover investigation and it is easy to determine whether there is one then Miranda is completely inapplicable

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Immunity - Counsleman v. Hitchcock

1. Immunity granted to overcome privilege: "no evidence obtained from party or witness by means of a judicial proceeding shall be given in evidence or used against defendant in court. a. Invalid b. not a good enough grant of immunity c. because of this people thought you needed to give transactional immunity - immunity from prosecution that is the subject of their testimony.

Fifth Amendment: Confessions Waiver and Miranda - Invocation of the right of Counsel - Invocation of right to counsel is treated DIFFERENTLY than the invocation of the right to silence

1. In right to counsel, the suspect has to INITIATE the conversation. Once he does, he has to be read his Miranda rights again and has to waive 2. In right to remain silent, the police can take a cooling off period and then give him his Miranda Rights again and get a waiver

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Rationales

1. Protects the innocent 2. Deters perjury 3. Unreliability of coerced statement 4. Fair balance between the individual and the state 5. Privacy 6. Relieves the "cruel trilemma" of self-accusation, perjury, or contempt

Fifth Amendment: Confessions Waiver and Miranda - Knowing and Voluntary - Moran v. Burbine - Two Requirements

1. Relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation coercion or deception and 2 The waiver must have been made with a full awareness of both, the nature of the right being abandoned and the consequence of the decision to abandon it

Fifth Amendment: Confessions Waiver and Miranda - Waiver after the invocation of the right to silence - Two Part Test

1. Scrupulously Honoring the Invocation of the Right to Remain Silent a. Cooling off period b. administer Miranda Warnings again 2. question, does it have to be a separate crime? a. lower courts have said this is not necessarily, even if you go in again, it can be the same crime.

1. Subpoena to tax payer for accountant's documents involves compulsion but it is not compelling the witness to state, repeat, reaffirm the contents of the documents. a. content of document is not protected by privilege, while it may be incriminating, no one forced you to create that document, the content of most documents not going to be privileged, unless it is a scenario where someone made you create the content of the documents. b. why sometimes act of production itself is an act that communicates things that can be incriminating: i. possessing document would be incriminating.

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Choices if there were no 5th Amendment privilege:

1. Testify truthfully --> go to jail for crime 2. Testify falsely --> go to jail for perjury 3. Refuse to testify --> go to jail for contempt

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - When is asking for documents self-incriminating?

1. The privilege has to be against oneself 2. In order for the 5th amendment to be triggered the documents have to be testimonial 3. Government is compelling you to turn over the documents but it is NOT compelling you to MAKE the documents a. Ex: if a police officer makes you write a confession in an interrogation, then that documents would be suppressed. In Fisher, the government did not force anyone to do anything. Therefore the documents are able to enter the court 4. The fisher case also says, though, that forcing someone to turn over the documents can be self incriminating a. If the ACT of turning it over is an admission, then the fifth amendment is triggered i. Ex: if the government doesn't KNOW that the documents exist and you turn them over it's an admission and its testimonial ii. Ex: turning something over could be an admission that you are 'in control' of the document in question. For example if there is a smoking gun document but the police don't know who exactly has it. They could subpoena a couple people and the person who turns it over shows that they have control over the documents that is damning

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Station house - Oregon v. Mathiason - Factors

1. Voluntariness of going to station 2. Whether he is told he is under arrest 3. Whether he is told he can leave after questioning

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Factors for determining if someone is in custody

1. Whether the suspect was informed at the time of questioning that the questioning was voluntarily that the suspect was free to leave or request the officers to do so or that the suspect was not considered under arrest 2. Whether the suspect possessed unrestrained freedom of movement during questioning 3. Whether the suspect initiated contact with authorities or voluntarily acquiesced to official request to respond to question 4. Whether the strong arm tactics or deceptive stratagems were employed during questioning 5. Whether the atmosphere of the questioning was police dominated 6. Whether the suspect was placed under arrest at the termination of the questioning

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Compulsion - Plea Agreements

1. Why is pleas bargaining not a violation of the 5th amendment a. If you plead out you will likely get a better sentence than you could face if you went to trial b. In order to plea you must testify against yourself c. The status quo is going to trial and facing the statutory sentencing range but if you waive your 5th amendment right you will get a better deal than the status quo 2. If there is a penalty for waiving 5th amendment right then it is compulsion If there is any benefit for waiving 5th amendment, despite how much the benefit may compel the defendant to waive, there is no violation

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Custody: Terry Stops Berkemer v. McCarty - General

1. a terry stop is not custody 2. Terry stop is not custodial for Miranda purposes

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Compulsion - The Penalty-Benefit Distinction - Need to look at what the status quo is

1. are you getting a benefit for waiving the privilege- - NOT a 5A violation a. plea agreement does not violate 5A right 2. a penalty for exercising the privilege - 5A violation.

Fifth Amendment: Confessions -Limitations on Confessions: Miranda - Is Miranda a Constitutional Decision? Dickerson v. United States (2000)

1. can Congress overrule Miranda? 2. does not want to reverse Miranda because it is has become part of our national framework 3. if not constitutional then states would not have to abide by it, but all the states have accepted and applied it 4. keeps exceptions by saying they are exceptions to Constitutional rule and all develop to look that way, in their own way. 5. Court says that Miranda is constitutional not just prophylactic 6. but does not overturn all of the cases post Miranda that outlines exceptions and that call Miranda prophylactic a. Say that it's fine that other cases call it prophylactic, its actually constitutional 7. Congress cannot legislatively supersede a decision by the United States Supreme Court that interprets and applies the Constitution a. Miranda is a constitutional decision and must be followed as the court interprets it

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Fruits of Miranda Violation: Subsequent Confession - Missouri v. Seibert (2004) - Plurality: Factors for determining whether Miranda warnings can be effective given first un-Mirandized confession

1. completeness and details of questions and answers in first round 2. overlapping content of two statements 3. timing and setting of first and second interview 4. continuity of police personnel 5. degree to which interrogator treated first and second round as continuous (ie. "we have been talking...) 6. whether there was warning that the first statement - unlike the post-Miranda statements - could no the used against the suspect.

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - 5A Elements

1. compulsion 2. to be a witness 3. in a criminal case 4. against oneself.

Fifth Amendment: Confessions Waiver and Miranda - Waiver after the invocation of the right to silence - Michigan v. Mosley (1975) - to do:

1. cooling off 2. new Miranda 3. new waiver that is voluntary and knowing waiver.

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Interrogation: Booking Exception - Factors

1. could there be a proper administrative purpose for the question? 2. is question being asked by officer who routinely books? 3. whether officer would need to know information for booking purposes.

1. even if the act of production involves asserting one of the above facts, the documents can be compelled if existence, control and authenticity are a forgone conclusion. If the government already knows or has some other way of doing it, then the mere fact that they are forcing you to do it does not make a difference. 2. Even if the act of production involves asserting one of the above facts, the documents can be compelled if existence, control, and authenticity are a foregone conclusion a. If the government does not need you to prove existence, control, or authenticity, you must turn over the documents and cannot invoke the 5th amendment privilege 3. Motion to quash subpoena: a witness may enter this motion if they have documents that have been subpoenaed which would incriminate them a. Defendant will give reasons why the government did not know about the documents i. If defendant wins, the subpoena is invalidated b. Government will give reasons why the government already knew about the documents and knew who had possession on it i. If the government wins, the defendant must turn over the documents

Fifth Amendment: Confessions -Limitations on Confessions: Miranda - Miranda v. Arizona (1968) Interrogation Practice - Interrogation Techniques:

1. in office, rather than suspect home 2. deprive him of psychological advantage 3. pretend to know that suspect is guilty 4. offer him legal or moral excuses for conduct 5. if this does not work, alternate with hostility 6. try trickery like fake line-up

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Pressure v. Compulsion - McCune v. Lile (2002)

1. in the prison context, Programs do not violate the privilege if adverse consequences are related to the program objectives and do not constitute "atypical and significant hardship in relation to the ordinary incidents of prison life." a. program objective to accept criminal responsibility. 2. the court similarly to Woodard, the court does not go with penalty benefit line of cases. 3. dissent: this is your status quo, you have better rights at this particular prison, law threatens to take away the privilege. 4. court says this is not compulsion, this is a kind of pressure that any defendant experiences, there is a lot of incentive and reason why pressure to waive, but that does not amount of compulsion. Part of what they say is that view prison much different and you do not have entitlements. Your status quo, if you participate we will give you better than nothing. Status quo is nothing in prison whatever you get is because we give it to you. 5. This program does not constitute compulsion because in the prison context, programs do not violate the privilege if adverse consequences are related to the programs objectives and do not constitute "atypical and significant hardship in relation to the ordinary incidents of prison life" a. The status quo is the worst possible prison situation because you have lost all rights in prison

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Prisoners - Howes v. Fields (2012) - Factors

1. length of interrogation 2. whether the prisoner was told he could return to his cell 3. whether the prisoner was told he could decline to talk 4. locked in separate room, restrained in any way 5. door open or closed.

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Pressure v. Compulsion - when analyzing whether something is compulsion do the following

1. penalty-benefit 2. how much pressure is being put on you?

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Kinds of Immunity - Use & Derivative Use Immunity

1. prevents the government from using the witness's testimony or any evidence derived from the testimony to prosecute the witness 2. burden on government to shoe that prosecution is not tainted a. absence of taint - different prosecutor i. will want to show prosecutor had nothing to do with getting testimony, create wall between new team and old team. b. independent source. i. new witnesses ii. analysis of DNA

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Kinds of Immunity - Use Immunity

1. prevents the government from using the witness's testimony to prosecute him 2. strict exclusion. Can't be used to impeach

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Tendency to Incriminate Oneself - in a civil proceeding,

1. privilege claim must be sustained if there is a reasonable possibility that incrimination will result. 2. test: whether it is "perfectly clear from a careful consideration of all the circumstances of the case, that the witness is mistaken and that the answer cannot possibly have such tendency to incriminate." 3. a lot of deference to persons concern about potential criminal liability.

Fifth Amendment: Confessions -Limitations on Confessions: Miranda - Miranda v. Arizona (1968) Interrogation Practice - Miranda Warnings - have to be read before custodial interrogated

1. right to remain silent 2. any statement can be used as evidence 3. right to the presence of a lawyer 4. if cannot afford a lawyer, one will be appointed

Fifth Amendment: Confessions Waiver and Miranda - How clear does this invocation have to be? Davis v. United States (1994)

1. suspect must clearly and unequivocally invoke in order to trigger the Edwards protection. 2. Must request so a "reasonable officer under the circumstances would understand the statement as a request for an attorney." 3. Davis issue was he said "maybe I should talk to a lawyer." a. the court said this was not clear and was ambiguous. b. the court also said that clarifying questions are not necessary. 4. Clarifying questions from the government are not necessary nor required 5. Souter Dissent: Criminal suspect who may (in Miranda's words) be thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures would seem an odd group to single out for the Courts demand of heightened linguistic care.

Fifth Amendment: Confessions Waiver and Miranda - Miranda Waiver - Miranda v. Arizona

1. suspect must waive "voluntarily, knowingly and intelligently" a.knowingly and intelligently have been interpreted as the same. 2. cannot be presumed from silence 3. cannot be presumed from the fact that a confession was ultimately obtained.

Fifth Amendment: Confessions - Exceptions to the Miranda Rule -Impeaching the Witness with Miranda Defective Statement - Government can use statement obtained in violation of Miranda if:

1. the defendant testifies; 2. in a manner inconsistent with his previous statements; and 3. the government does not use the statements in its case in chiefly but only to undermine the credibility of the defendants.

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Emergency Exception - what facts are key?

1. the immediacy of the dangers 2. the gravity of the possible harm 3. questions narrowly tailored to address the danger 4. clear connection between the suspect and the danger.

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - In Sum...statements made by person in custody even when not warned will be admissible if:

1. the statements are volunteers a. statements not immediately preceded by interrogation b. police can delay warnings and just wait c. what should officer do if there was a volunteered statement? i. one possibility is now read them Miranda rights, get a waiver and ask questions. ii. you know the one statement will be admissible, but if you start asking questions then it is inadmissible without waiver of Miranda rights iii. another option is to say nothing and hope they following up with another voluntary statement. 2. routine booking inquires 3. made to undercover 4. public safety exception

Fifth Amendment: Confessions -Limitations on Confessions: Miranda - Miranda v. Arizona (1968) Interrogation Practice - when do you need to give these warnings?

1. there are two triggers in order to create compulsion: custody and interrogation 2. need to have custody and interrogation before you give warnings because otherwise you do not have compulsion.

Fifth Amendment: Confessions Waiver and Miranda - Waiver after Invocation

1. two rights that are created by Miranda a. waiver after the invocation of silence. b. waiver after the invocation of the right to a layer. 2. what is you invoke your right to silence or right to lawyer, does that mean the government has to leave you alone? no, government can still obtain waiver, but it is harder. 3. answer is different depending on which one invoke

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Impeaching a Defendant with Silence - Fletcher v. Weir (1982) - post arrest, pre-Miranda silence

1. two triggers before give Miranda warning: a. interrogation and custody b. let's say you have one, like custody? do you have to give Miranda with not interrogation, no Miranda needed because only in custody. 2. why did he not say he didn't do it, spent all this time sitting and being silent when no Miranda rights were given. 3. arrest does not induce silence 4. only thing that create compulsion is interrogation and custody. 5. free will of silence, so relevant to comment on silence 6. In the absence of the sort of affirmative assurances embodied in the Miranda warnings impeachment with post-arrest silence was constitutionally permissible because arrest by itself does not implicitly induce a suspect to remain silent

Fifth Amendment: Confessions -Limitations on Confessions: Miranda - Miranda v. Arizona (1968) Interrogation Practice - Miranda Warnings - how does court help waiver concern? what do they say about waiver?

1. waiver has to be voluntarily, knowingly and intelligent. 2. can waiver at any time, can invoke the privilege at any time. 3. waiver is not presumed by silence. 4. government has heavy burden to show waiver

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Criminal Case - US v. Balsys

1. what if exposed to prosecution in foreign country? 2. facts a. accused of war crimes b. deportation hearing c. if I have to testify it could expose me to criminal foreign prosecutions 3. court says were are not going to see foreign prosecutions as a criminal case. 4. 5A allows government to offer of immunity can take away criminal prosecution and allow you to freely testify, cannot give that here because cannot offer immunity in foreign place.

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Immunity - Kastigar v. United States

1. what kind of immunity has to be given? something less than transactional? 2. use and derivative use immunity - you cannot use his statement and you cannot use his statement to develop other evidence 3. flaw in Counsleman is that they promised not to use statement but did not promise to not use to investigate.

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Testimony and Documents - Act of Production Doctrine: Compelling production of documents can violate 5A when, by producing the documents, the witness is affirming that the documents: (1) Exists

1. when is mere existence incriminating? a. does happen when a company keeps two books in records, one for public, one for themselves, committing fraud. 2. If the government does not know if the documents actually exist, turning them over may incriminating

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Custody: Terry Stops Berkemer v. McCarty - Factors

1. whether informed that questioning was voluntary, free to leave, or told that he was not under arrest 2. whether the suspect possessed unrestrained freedom of movement 3. whether the suspect initiated contact with authorities or voluntarily acquiesced to official request 4. whether strong arm tactics or deception was used during questioning 5. whether atmosphere was police dominated 6. whether suspect was placed under arrest at the end of questioning. 7. language used to summon individual 8. extent to which suspect is confronted with evidence of his guilt 9. physical surrounding of interrogation 10. duration of detention, degree of pressure used to detain 11. whether the person was moved 12. what kind of interrogation techniques used

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - To Whom does the Privilege Belong? Or what does Against Oneself mean? - Collective Entity Rules - US v. Doe

A sole proprietorship is entitled to fifth amendment protection because it is not considered an entity distinct from the individual

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Impeaching a Defendant with Silence - Rule of Evidence

A witness can be impeached with prior silence if a reasonable person would have spoken at the time about the matter.

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Impeaching a Defendant with Silence - Doyle v. Ohio (1976)

After Miranda warnings are given, the due process clause prohibits the government from using the defendant's silence against him even for impeachment purposes fundamentally unfair - 14A issue (DPC) fundamentally unfair to use this silence against him, so it is a violation of 14A DPC right to use this against him. It is fundamentally unfair because nothing says if you do not talk that will be used against you. Basically, Miranda infers that if you do not talk that cannot be used against you. It says anything you say or do can be used against you, so silence is basically promising that it won't be used against you. when read Miranda warnings inferring promise that silence will not be used against you.

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Criminal Case - US v. LO Ward; Minnesota v. Murphy; Allen v. Illinois - what do they all say?

All: say we will defer to legislature, if the legislature designates something as criminal case, then it is criminal case, unless it is so clear on its face that are mischaracterizing.

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Objective Test - Stansbury v. California (1994) - Holding

An officer's views concerning the nature of an interrogation or beliefs concerning the potential culpability of the individual being questioned may be one among many factors that bear upon the assessment whether that individual was in custody but only if the officer's views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave If the suspect felt he was free to leave he was not in custody. If he did not feel free to leave then he was in custody.

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Prisoners - Howes v. Fields (2012) - Holding

Court held a prisoner is not always in custody for purposes of Miranda whenever prisoner is isolated from the general prison population

Fifth Amendment: Confessions - Exceptions to the Miranda Rule -Impeaching the Witness with Miranda Defective Statement - Oregon v. Hass (1975)

Defendant received full Miranda warnings and invoked his right to an attorney. Before he could call an attorney he made inculpatory response. Miranda was defective not because of failure to give but failure to respect the invocation of rights. Despite the confession being Miranda defective, the statements were admissible to impeach the defendant who had taken the stand and offered direct testimony in conflict with the incriminating information

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Test for Custody

Determining whether custody exists is a two-step process: The first step the freedom of movement test which requires the court to determine whether a reasonable person under the circumstances would feel that he was free to terminate the interrogation and leave. All the circumstances surrounding the interrogation must be considered. If an individuals freedom of movement was curtailed in this way, the next step considers whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - The Griffin Rule - Griffin v. California

Can the government must so much evidence against you that you feel pressured to testify? is the it the government's evidence or the fear of comment that forces you to testify? if the prosecutor or the judge comments on the defendant's failure to take the stand, that is compulsion and a violation of 5A. Adverse comment to the jury by either the judge or the prosecutor on the defendant's election not to testify constitutes punishment for the invocation of silence which is tantamount to compulsion and therefore violates the fifth amendment

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Required Record Doctrine - limit to the rule about 5A privilege in the context of the act of production - Shapiro v. United States (1948)

Government comes back and says that they required you to keep those documents separate from any criminal activity and therefore we can search them Court agrees with government and compels Shapiro to produce the documents The compelled production of the defendant's customary business records which were required to be kept under the Emergency Price Control Act did not implicate the fifth amendment

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Kinds of Immunity - General

Grant of immunity does not mean it can never be used against you, just makes it very hard.

If the government knows the document exists but does not know who has it, if you turn it over, you are telling the government you have control over the document

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Interrogation - Rhode Island v. Innis (1980) - court defines interrogation

Interrogation is: a. express questioning; or b. its functional equivalent look at Miranda which says it is questioning say it is questioning by law enforcement officers or the functional equivalent functional equivalent of express questioning: words or actions, other than those normally attendant to arrest and custody, that police should know are reasonably likely to elicit an incriminating response from the suspect.

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Impeaching a Defendant with Silence - Jenkens v. Anderson (1980) - pre-arrest silence

Jenkens at trial theory of defense was self-defense. Jenkens wants to use the Doyle room. Distinguishes Doyle because there was no Miranda right, so no 14A rights prior to. He was just on the land, no one broke their promise, it is not fundamentally unfair, government did not say you have the right to remain silent. Since no promise, cannot have broken promise. Doyle is inapplicable in this case because no government action induced the defendant to turn himself in. The failure to speak occurred before he was taken into custody and given Miranda The fundamental unfairness in Doyle is not present in this case because impeachment of pre-arrest silence does not violate the fourteenth amendment due process clause

Fifth Amendment: Confessions Waiver and Miranda - Waiver after the invocation of the right to silence - Michigan v. Mosley (1975) - government must satisfy the "knowing and voluntary" test laid out in Burbine

Knowing- rights read and capacity to understand rights evaluated on the basic most fundamental level Voluntary- no coercion

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Fruits of Miranda Violation: Subsequent Confession - Missouri v. Seibert (2004) - Kennedy Concurrence (Holding of Case)

Lower courts interpreting Seibert are going to use Kennedy's concurrence A second confession will not be admissible if the police acted in bad faith and if the two confessions are considered consecutive This case looks like bad faith because the police were told to do this and it is clearly a situation that would call for Miranda rights to be read-- clearly an interrogations, clearly an arrest it looks continuous because there were only 15 minutes in between the two conversations If the police obtain a confession from a detainee without giving him Miranda warning and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the question first, warn later nature of the questioning was intentional (i.e., the facts make it seem like the police used this as a scheme to get around the Miranda requirements)

Minnesota: A person has no right to refuse o answer questions of the ground that they might be used against him in a subsequent probation revocation proceeding because those proceedings are civil not criminal

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Fruits of a Miranda Violation: Third Party Statement - Michigan v. Tucker (1974)

Miranda warnings are "not themselves rights protected by the Constitution but are instead measures to insure that the right against compulsory self-incrimination is protected." third party statement is admissible. explicitly invoking idea pre-Dickerson that Miranda is not Constitutional rule If Miranda defective statement leads to third party statement, the third party statement will be admissible.

Fifth Amendment: Confessions - Exceptions to the Miranda Rule -Impeaching the Witness with Miranda Defective Statement - Harris v. New York (1971) (p.778)

Miranda was a prophylactic rule the benefit of deterring Miranda is outweighed by the cost of allowing false testimony. Statements made by a suspect who has not received the Miranda warnings may be admitted at trial for impeachment purposes The cost of excluding the Miranda defective confessions when offered for impeachment outweighs the benefit in deterring Miranda violations

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Interrogation - United States v. Soto

Officers comment constituted an impermissible interrogation Although it was not a formal question, it was a direct inquiry into Soto's reasons for committing the office and elicited an incriminating response

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Interrogation - Arizona v. Mauro

Officers do not interrogate a suspect simply by hoping he would say something incriminating

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Interrogation - United States v. Calisto

Officers statement was not interrogation because his remark was not directed at Calisto and was the kind of remark an officer would normally make in carrying out his duties under the circumstances that confronted him and was not made in a provocative manner

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Pressure v. Compulsion - Ohio Adult Parol Auth. v. Woodard (1998) - facts

Ohio had clemency law and it said within certain amount of time before execution you can have clemency hearing, in order to take advantage of that opportunity, you need to go before that board and admit the crime and any other criminal offense you have committed. Woodard brought 1983 claim, arguing that statutory scheme is unconstitutional under 5A

Ohio has a statute if you do not produce ID during stop that is criminal, that statute does not exceed a permissible stop, it does not make stop something else. Another thing the court said is that it does not violate your 5A privilege because even though there is compulsion, it would be very rare case that your identity is incriminating, your identity is not incriminating, there are many ways they can do it, your identity itself is not incriminating. Turning over your name is testimonial because if you lie you may be prosecuted for perjury. Your name itself is not incriminating so just turning over your name is not enough to invoke the 5th amendment Identity is essential in any criminal case

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Physical Fruit of Miranda Defective Statement - United States v. Patane (2004) - no longer pre-Dickerson case where can say prophylactic and not constitutional law. - Facts

Patane arrested for harassing former girlfriend of his, released on bond and violated parole and restraining order, so he was arrested again. police had this information and think he is felon in firearm, so when they arrest him and give Miranda warnings, he interrupts and says "yea, yea, yea" I know my rights. They ask about gun, and he ultimately tells them. Now there is a question about the admissibility of gun. We know the statement not admissible, but question is what about gun no matter what Miranda is a bright line rule, does not matter if you invented it, you have to read it fully and get valid waiver in order to make admissible.

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Fruits of Miranda Violation: Subsequent Confession - Missouri v. Seibert (2004) - Plurality Opinion

Plurality says the statement is not admissible, they distinguish Elstad, Justice Kennedy says the procedure used here was meant to circumvent Miranda Warnings. Court says this was on purpose and were in bad faith trying to get around Miranda warning. purpose to give effect that no reason to stay silent.

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Interrogation: Booking Exception - Pennsylvania v. Muniz (1990)

Questions necessary to complete booking process Statements and questions to explain custodial procedures Does not apply if questions designed to elicit incriminating response Munizs statements were admissible because they were part of routine booking practices and questioning in this context is exempt from Miranda because the purpose is to secure the biographical data necessary to complete booking or pretrial services

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Required Record Doctrine - Limitations to Require Records Doctrine - Haynes v. United States (1968)

Registering your sawed off shotgun law Haynes says you are requiring me to self-incriminate so fifth amendment does apply Court rejects the government argument because this is not a legitimate regulatory scheme, it is aimed at a group suspected of criminal activity The statutory scheme provisions were directed at a highly selective group inherently suspect of criminal activities and they were not concerned essentially with non-criminal and regulatory inquiries The records involved were in no sense public

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Fruits of Miranda Violation: Subsequent Confession - Elstad and Seibert Case Continue - Seibert - Plurality

Second statements only come in if the Miranda warnings could have been effective.

Fifth Amendment: Confessions Waiver and Miranda - Conditional Waivers - Essentially Permitted

Someone can waive but with conditions, only answer some things or only do something; 'I'll agree to do it but '

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Interrogation - Edwards v. Arizona

Suspect interrogated when officers played from him a recorded statement of Edwards' associate that implicated Edwards in the crime

Fifth Amendment: Confessions Waiver and Miranda - Conditional Waivers - Connecticut v. Barret

Suspect waived his Miranda rights by speaking to the police about the sexual assault investigation and the police complied with his condition by not seeking a written statement Limited Waiver: Government violates Miranda if the suspect makers her waiver conditional on certain government acts and the government failed to abide the promise.

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Testimonial Evidence or To Be a Witness - What is Privileged - California v. Schmerber (1966) - Testimonial v. Non-Testimonial - Holding

The Fifth Amendment privilege against self-incrimination only prevents the admission of testimonial evidence

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Act of Production and Application to Corporations - United States v. Curicio

The collective entity rule did not require the giving of oral testimony by the custodian where that testimony could incriminate him personally. did have a 5A privilege, this was oral testimony and oral testimony belongs to individual, but documents don't, which is why this is different than Braswell.

The compelled act of production of personal documents was incriminating because it provided the government information about a trial of documentation of which it had not been aware, thus it provided incriminating evidence of producing defendant's thought process on how the documents were organized and related

Fifth Amendment: Confessions Waiver and Miranda - Voluntariness - General

Waiver = same standard as the Due Process Clause Due Process claim after valid waiver

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Waive of Privilege - United States v. Hearst

Witness who takes the stand waives as to any subject matter within the scope of direct examination. Cannot take the stand, answer some questions and then when you hear a question you do not want to answer try to plead the fifth. By testifying, the defendant waived her privilege with respect to questions on cross examination

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Fruits of Miranda Violation: Subsequent Confession - General Rule

a confession made after Miranda defective confession will be admissible unless 1. The officers were in bad faith in not giving warnings before the first confession and 2. The second confession proceeds directly from the first

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - The Griffin Rule - Adverse inference at sentencing - Mitchell v. United States

a defendant could not be subject to an adverse inference upon invoking the right to remain silent at a sentencing proceeding. sentencing is part of a criminal proceeding, so if you are taking into account fact that he remained silent, even for amount is still punishing (penalizing)him for invoking 5A privilege. A defendant cannot be subject to an adverse inference upon invoking the right to remain silent at a sentencing proceeding

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Criminal Case - Counsleman v. Hitchcock

a grand jury proceeding is part of a criminal case, if you are forced to say something that exposes you to criminal liability in grand jury it counts as criminal case and 5a applies even if forced to testify in civil proceeding, as long as testimony can apply in a later criminal proceeding, then the 5th Amendment applies. The privilege against self-incrimination is available in any proceeding if the testimony sought from a party or witness might later be used in a criminal prosecution against that person

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - what is custody according to Miranda?

a person is in custody when he is deprived of his rights

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Objective Test - JDB v. North Carolina - Age Consideration

adds something to analysis which says one thing that can be relevant is the age of the person who is being interrogated age relevant for determining if someone thinks they are in custody. main issue is are we talking about reasonable person or reasonable 13 year old and court said it is relevant their age. Under those circumstances a 13 year old would feel they are in custody. all we are saying is age, if readily apparent, can be considered in determining whether someone else in custody. So long as the child's age was known to the officers at the time of police questioning or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consist with the objective nature of that test

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Waive of Privilege - Mitchell v. United States: Sentencing

admitted a drug trafficker, government said she waived privilege as to amount, court said sentencing different and that amount is different to underlying contact. Court says you can't draw conclusions based on someone failure to take the stand The privilege is waved for the matters to which the witness testifies and the scope of the waiver is determined by the scope of relevant cross examination

Fifth Amendment: Confessions Waiver and Miranda - Oregon v. Bradshaw (1993) Initiation (what counts an initiation) - Opinion/Holding

analysis under Edwards - did he initiate, an initiation cannot be a general inquiry arising out of the custodial arrest. initiation is not - how did fingerprinting work an indication of a willingness to enter into a generalized discussion about the investigation amounts to initiation. if the suspect makes a necessary inquiry arising out of the custodial relationship, that will not be considered initiating communication with the officers. Ambiguity construe in favor of finding initiation (Rehnquist plurality - interpreted as binding law) Marshal dissent: initiation cannot be found unless the suspect expresses a willingness to discuss the specific subject matter of the investigation.

Fifth Amendment: Confessions Waiver and Miranda - Knowingly - How much information must the government provide in order to make the waiver knowing? Oregon v. Elstad (1985)

another argument made in this case was waiver not knowing because no one told me that the statement made in living room inadmissible, no one told me when I waived for second statement court says no, do not need extra requirement that first statement was inadmissible. An officer does not have to inform a suspect that anything he said before Miranda warnings were read cannot be used against him

any kind of corporate entity does not have a 5A privilege because it applies to actual humans.

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Criminal Case - Overall

anything the leg deems, does not include foreign prosecutions, included grand jury, but does not include every aspect of criminal investigation

Fifth Amendment: Confessions Waiver and Miranda - Knowingly - How much information must the government provide in order to make the waiver knowing? Colorado v. Spring (1987)

argues that did not know being accused of murder, thought another charge so said not knowingly waived because did not know what charge was, but the court rejects this and says Miranda warnings do not require reading the charges to suspect. It does not render unknowing because did not have that piece of information. A suspect's awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily knowingly and intelligently waived his fifth amendment privilege

baby had been shaken to death and the father was arrested and prosecuted and the babysitter had been given immunity and she testified that she did not do it. father on appeal said the government was mistaken for giving immunity because she gave exculpatory statement and said she didn't do it and in what way is that incriminating court rejected father argument and said even an exculpatory statement can be incriminating and we are not going to look too far into it. babysitter faced risk of self-incrimination even though she denied wrongdoing, and therefore grant of immunity was not unlawful Privilege's protections extend only to witnesses who have reasonable cause to apprehend danger from a direct answer

Fifth Amendment: Confessions Waiver and Miranda - Berghuis v. Thompkins (2010) - The Right to Remain Silent - Holding

basically, undoes the notion in Tague or Miranda itself that the confession itself is evidence of waiver. At any time prior to or during interrogation, the detainee may indicate that he wishes to remain silent. Such an indication must be explicit, unambiguous, and unequivocal. The detainees failure to answer does not constitute an invocation of the right to remain silent

Fifth Amendment: Confessions Waiver and Miranda - Knowingly - General

can be based on individual characteristics we want them to be able to understand their rights it is not objective and reasonable police officer thinks, it is did they actually know.

Fifth Amendment: Confessions Waiver and Miranda - Waiver after the invocation of the right to silence - Michigan v. Mosley (1975) - Opinion/Holding

can waiver even after invoke right of silence in order for waiver to be valid: initial invocation of right to silence must be scrupulously honored" invocation is not a complete bar to resumption of questioning the invocation of the right to silence must be "scrupulously honored"

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - The Coerced Confession Rule - Brown v. Mississippi (1936)

case where there was a murder of white man in Miss. found people including brown and there were victim friends and they asked him to admit to crime. they tied Brown to a rope and beat him until he confessed. that the court said violated his DPC rights, it shocked his conscious, if obtaining confession government engages in shocking conduct, that is clearly violation of DPC. does not have to be physical use to reach that level...see Chambers

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Required Record Doctrine - Limitations to Require Records Doctrine - Marchetti v. United States (1968)

clearly really aimed at bringing criminal case against gamblers cannot pretend its required record when it is really for law enforcement purposes. Conviction reversed because those who properly assert the constitutional privilege as to these provisions may not be criminally punished for failure to comply with their requirements

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Compulsion - The Penalty-Benefit Distinction - General

conferring a benefit for waiving fifth amendment rights vs. penalizing an individual for invoking the 5th amendment. if being punished, then it is compulsion. if it is a benefit, then that is not compulsion

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Emergency Exception - New York v. Quarles (1984) - Opinion/Holding

court creates a limited exception to Miranda for emergency situations. Court is very carefully to suggest that this has to be a real emergency. it has to be an immediate danger The police may question a suspect without first reading a suspect his Miranda warnings, and the suspects statements may be admitted at trial, where the exigency of a situation requires that public safety take precedence over a suspects Fifth Amendment privilege when there is an objectively reasonable need to protect the police or the public from an immediate danger, that is, where there exists an exigency requiring immediate action

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Objective Test - Stansbury v. California (1994)- Supreme Court

court it is not the subjective view of police officer it is an objective view question we are asking is what would a reasonable person in Stansbury shoes feel? would they feel there freedom was constrained? what would reasonable under the circumstances feel? police officer suspicion is relevant if he discloses it. want to look at the context and what is going on from person being interrogated. look at external circumstances including the disclosed state of mind. feel like your freedom has been constrained significantly

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Pressure v. Compulsion - Ohio Adult Parol Auth. v. Woodard (1998) - Opinion/Holding

court says pressure is okay, there are plenty of pressures given to take stand but there is no 5A violation. "But it has never been suggested that such pressure constitute compulsion for Fifth Amendment purposes." focus on how much pressure being put on you and seeing if it is so much that crosses line into compulsion. Clemency proceeding did not compel him to incriminate himself because the interview is voluntary and he has the choice to provide information to the Authority at the risk of damaging his case for clemency or postconviction relief or remaining silent. The pressure to speak in hopes of bettering his chance for clemency does not make the interview compelled

court says the Gun is going to be admissible court says Miranda never pertains to physical evidence court says if Miranda statement leads to physical evidence then physical evidence is admissible exclusionary rule does not exclude physical evidence from Miranda defective statement. If the police fail to give Miranda warnings and during interrogation and a detainee gives the police info that leads to non-testimonial evidence, the evidence will be suppressed if the failure was purposeful, but if the failure was not purposeful, the evidence will not be suppressed. The fruit-of-the-poisonous tree doctrine is inapplicable unless physical evidence is found as a result of involuntary, coerced statements. Mirandas general presumption that unwarned statements are coerced serves only to protect a suspects privilege against self-incrimination with respect to testimonial evidence, and therefore does not extend to physical evidence found because of voluntary, unwarned statements. Because the introduction of physical evidence at trial does not implicate the Self-Incrimination Clause, suppression of physical evidence found because of a suspects voluntary but unwarned statements is not required.

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Orozco v. Texas

defendant was in custody If someone is arrested, that counts as custody, they don't have to be in the station house Defendant was in custody when four armed policemen entered his bedroom at 4:00am and tried to elicit incriminating information from him One of four officers said he was under arrest

did the government force an individual, by voice or action, to make an assertion of fact?

does the witness face the current trilemma in revealing evidence? pulled over for DUI asked 6th birthday and he answered in a slurred speech they admit this into evidence to convict him.

Fifth Amendment: Confessions -Limitations on Confessions: Miranda - Is Miranda a Constitutional Decision? - 1968 Crime Control Act

essentially purports to overrule Miranda

Fifth Amendment: Confessions Waiver and Miranda - Miranda Waiver Reconceived - Berguis v. Thompkins (2014)

essentially takes notion and developed NC further to suggest that basically what you need is a confession, and confession can be evidence that individually voluntarily waived. Once the police give Miranda warnings, they can continue to interrogate until they get a waiver or invocation

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Station house - California v. Beheler

even if accompanied to stationhouse, still not custody does not hallmarks of a coercive situation. Suspect was not in custody when he agreed to accompany police officers down to the station for questioning

even if the act of production would be incriminating or if the government is compelling the creation of the records, the 5th Amendment does not apply if the government requires that documents be kept for legitimate administrative purposes that is not focused solely on a group inherently suspected of criminal activity.

Fifth Amendment: Confessions Waiver and Miranda - Invocation of the right of Counsel - Edwards v. Arizona - Opinion/Holding

even when start speaking, in middle of statement can say I think I want my attorney once a suspect invokes his right to counsel, the government cannot interrogate him until counsel provided unless the accused himself initiates communication. the government has to cease all interrogation up until point at which they get you a lawyer or you initiate conversation about the subject matter of your arrest. After initiation, the suspect must be reread his rights and must sign a new waiver

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Fruits of Miranda Violation: Subsequent Confession - Oregon v. Elstad (1985)

facts: living room statement, he was arrest and not given Miranda warnings, so that was direct violation, but what happens next is he is given Miranda Warnings and he gives full confession. Argues would not have given full confession if did not give statement in living room which was Miranda defective. Court says the second statement is admissible because we get enough deterrent value for suppressing first statement, even though could see it as result of first statement. 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

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Fruits of Miranda Violation: Subsequent Confession - Missouri v. Seibert (2004) - Facts

facts: mother has several sons, one has cerebral palsy, that son dies and she wants to incinerate body, she comes up with plan to put him in mobile home and burn the mobile home down. Police suspect the children and her were involved in murder of teenager who was in mobile home with son. So they interrogate first and give Miranda warnings second. They get full statement from mother, getting her to confess. After they get her to admit, they give her Miranda warnings and they ask her to go over it again and she says everything again. They know statement one will not be admitted, but they want to admit second statement.

Fifth Amendment: Confessions Waiver and Miranda - Knowing and Voluntary - Moran v. Burbine - Knowing

full awareness of nature of right and consequence of abandoning it.

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Interrogation - Rhode Island v. Innis (1980) - Opinion

fundamental disagreement on whether a reasonable person in circumstances would respond to if do not talk now a handicap child might die the assumption is that Innis probably does not care about handicap children. we cannot say that the officers should have known that it was reasonably likely that Innis would so respond. if the police knew that he had sister who was handicap, that might transform conversation into interrogation.

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda -Completeness and Accuracy of Warnings (what if they do not read them word for word)

generally, courts say as long as police close enough and have the gist, then Miranda warnings will be valid. make sure to look that each one of the 4 that we know have been touched on, but does not have to be exact.

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Interrogation - Rhode Island v. Innis (1980) - Facts

given Miranda rights multiple times, but he invoked his right to a lawyer (which means they cannot interrogate until one present) defendant was suspected of shooting cab driver arrested and driving to station they have not found gun police start talking and say it would be ashamed if kid found gun and hurt themselves he overheard and said he would show where the gun is.

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Impeaching a Defendant with Silence - bottom line

government can use silence, as long as it is not after Miranda warnings, if you use after then it is a violation of Due Process.

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Immunity - General

if a witness is guaranteed that no criminal prosecution having anything to do with statements given to the government will take place then there is not possibility of incrimination.

if only one who owns stock in a corporation, then still no privilege.

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Fruits of Miranda Violation: Subsequent Confession - Elstad and Seibert Case Continue - Overarching Issue in Cases

if someone gives a confession that for some reason is defective or not admissible, then later on there is another confession, the question at issue is whether the second confession is admissible. First statement is definitely out, what is there is a second confession and that second confession came after Miranda warnings Two Possible Answers

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Fruits of a Miranda Violation: Third Party Statement - Note

if the confession is "involuntary" under the due process clause, the fruits of the confession would be excluded.

if you are custodial interrogated, that is considered compulsion Salinas's was interrogated but was not in custody so he did not need Miranda warnings. government asked question and he didn't answer after already answering some, the prosecutor used silence against him. Salinas 5A right was not violated by the use of his silence Alito says this is like Minn v. Murphy you waived by answering questions and therefore can use any of it at later time. Salinas could not rely on 5A because he had not invoked at the time he was questioned.

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Criminal Case - General

if you are forced to say something that would be extremely damaging to you, the fifth amendment does not apply, it has to be in a criminal case.

in a partnership, a partnership does not have a 5A privilege.

it cannot be focused on a specific group of suspect activity.

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - The Coerced Confession Rule - General

it denies defendant's due process rights to introduce at trial a confession that was involuntary. there is a 5th and 14th amendment right that comes from the Due Process Clause. it is like the old version of the DPC. If what a government official is doing shocks the conscious and is so bad and undermines fundamental fairness then that violated DPC.

it has to be yourself. clients accused of tax fraud and ask lawyer for information court says by subpoena lawyer we are compelling lawyers, we are not compelling you anything actually has to be compulsion directed at that person. attorney-client privilege violated if compelling attorney would be directly compelling client if on its own. Compelling an individuals attorney to produce documents does not violate the individuals Fifth Amendment privilege against self-incrimination because Fifth amendment protects against self-incrimination not the disclosure of private information

it is not testimonial no communication or in writing something communicative in nature, it is words or conduct that communicate a fact that either can be true or false (this is what testimonial means)

looks at purpose and language of 5A and says it is about testimony and compelling them to be witnesses against themselves and this is not testimony. 5A violation is not complete until a statement in introduced against you at trial. Miranda violation is not 5A violation according to Thomas and is not what Dickerson says. Essentially no constitutional violation until statement introduced at trial. Thomas thinks point of 5A is for reliable evidence and physical evidence is always reliable. (not true, 5A not about reliability)

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Compulsion - The Penalty-Benefit Distinction - United States v. Cruz

mandatory minimum requirement of 10 years for this crime, but get lower sentence if you admit to all crimes related to this particular one. so, you might think this is an incentive and the government is making me admit to these crimes in order to get lower sentence, that is really forcing. court says this is not compulsion it is a benefit being given to you for waiving 5A right. getting something better than the status quo. getting 5 instead of 10 is a benefit and not a penalty Court holding: the defendant's mandatory minimum is 5 years but the legislative scheme says if you waive the privilege your sentence will be reduced to two years The defendant is not being penalized. If he does not waive he will face the statutory 5-10 years No compulsion because all penalty cases involve some kind of loss or reduction from the status quo. A defendant facing a particular sentence with the option of obtaining a lower sentence if he or she waives the fifth amendment privilege is not presented with the same negative sanction as presented in the penalty cases. The choice confronting the defendant gives rise to no more compulsion than that present in a typical plea bargain

Fifth Amendment: Confessions Waiver and Miranda -Ending the Presumption after Invocation? Consultation - Minnick v. Mississippi (1990)

mere fact that you had moment to talk to lawyer does not mean that you have to invoke right to lawyer again to invoke Edwards protection. Consolation with lawyer does not break Edwards presumption Even if the suspect has been given the opportunity to speak to an attorney is not enough for police to continue to interrogate. The suspect must initiate conversation. MRPC 4.2 says that a lawyer/government cannot initiate conversation with someone who is represented by counsel

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Objective Test - Stansbury v. California (1994)- Facts

middle of interrogation they realize he is not witness, he is prime suspect

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Prisoners - Mathis v. US (1968)

not every prisoner is always in custody for the purpose of 5A question want to ask is whether additional and some other constraints have been applied to prisoner and whether more taken away from him. what would make a prisoner feel like this additional anxiety cannot make them act freely, it is something else that police are doing to further constrict freedom.

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Beckwith v. US

not in custody, Beckwith let them in and they sit around dining room table to discuss. Defendant was not in custody for purposes of receiving Miranda warnings when two IRS agents arrived at his home and were invited in at 8:00pm Agents sat with defendant at his dining room table to discuss their investigation of his federal income tax returns If the defendant is not in the custody the inherently coercive atmosphere that triggers the need for Miranda warning is not present

Fifth Amendment: Confessions Waiver and Miranda - Knowingly - How much information must the government provide in order to make the waiver knowing?

obviously need to read warnings but is anything else needed? short answer is that nothing else is needed

Fifth Amendment: Confessions Waiver and Miranda - Knowing and Voluntary - Tague v. Louisiana

officer reads Miranda, and ultimately confesses, that is not enough, but very minimal, but at very least we need to know affirmation from suspect that they understood these rights. A waiver of Miranda rights was not proven by an officer's testimony that he read a suspect his rights from a card and the suspect then confessed A valid waiver cannot be found simply because the warnings were read and the suspect confessed

Fifth Amendment: Confessions Waiver and Miranda - Oregon v. Bradshaw (1993) Initiation (what counts an initiation) - Facts/Issue

on way to jail and says what is going to happen to me now. question is admissibility of the results of the lie detector test.

once we figure these out we have to ask if any of these things incriminating?

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Required Record Doctrine - Limitations to Require Records Doctrine - Baltimore City Department of Social Services v. Bouknight

ordering mother to produce child, child subject of neglect and abuse case said would be testifying that have control and would be incriminating court forced her to produce child for number of reasons, because it is kind of regulatory, not law enforcement, and also like custodian of records.

person characteristic to identify in speaking in police lineup, not being used for fact and whether or not true or false. requiring a suspect to participate in a police line-up did not violate the Fifth Amendment. identification purposes not communicative in nature and not testimonial.

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Kinds of Immunity - Transaction Immunity

prevents the government from prosecuting for any crime related to the witness's testimony most intense and SC says do not have to offer this level of immunity

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Station house - Minnesota v. Murphy

probation officer, murphy called by probation officer for conversation, that is interrogation, he is required to go. court says not custody Warnings are not required simply because an investigation has focused upon a suspect

Fifth Amendment: Confessions Waiver and Miranda - Knowing and Voluntary - Moran v. Burbine - Voluntary

product of free and deliberate choice rather than intimidation, coercion or deception what has government done?

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Compulsion - Lefkowitz v. Turley - Facts

public contract, if you did not answer questions, risked cancellation. if you did answer questions you could incriminate yourself for anything. state has statute - in every public contract, you have to testify truthfully and if you fail to, then cancellation plus not contract for 5 years and whatever you say if it implicates criminality, we will turn over. challenge to the validity of the statute

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Fruits of Miranda Violation: Subsequent Confession - Bobby v. Dixon (2011)

question in Bobby v. Dixon, what happens if second confession, involves confession to a separate crime? can it ever be seen as Seibert situation? In Dixon, he is interrogated about a possible car theft, ultimately he says I do not know where the owner of the car is (body), but yes I did forge this check. At which point he is arrested and later is given Miranda and second time he confesses to murdering car owner should second statement where he has confessed to the murder be suppress the court says if it is a different crime and entirely distinct, then it will always fall in Elstad category and the second statement will be admissible. Because the two confessions were about two different facts and two different crimes, even though they were related, and Dixon was given Miranda the second confession is admissible

Fifth Amendment: Confessions Waiver and Miranda - Berghuis v. Thompkins (2010) - The Right to Remain Silent - when does a suspect invoke the right to remain silent?

remaining silent does not invoke the right to silence invocation must be clear

Fifth Amendment: Confessions Waiver and Miranda - Knowingly - How much information must the government provide in order to make the waiver knowing? Moran v. Burbine (1986)

right to attorney under Miranda police abuses we do not need to have all information relevant to person given in order to make waiver valid, it does not matter that they did not inform suspect that there was a lawyer trying to get in touch with him. no 5A right to lawyer, this was something made up by Miranda A suspect does not have to be informed that an attorney sought to contact him

rounded up people for killing white man they interrogated Chambers for 5 days and did not give him rest they said this conduct shocked conscious, violated DPC and confession going to be excluded.

Fifth Amendment: Introduction -Privilege Against Compelled Self Incrimination: To Whom Does Privilege Belong, Testimonial Evidence, Immunity & Waiver - Required Record Doctrine - Limitations to Require Records Doctrine - California v. Byers (1971)

said hit and run is regulatory purpose because it is for safety The statute is valid and the defendant can be convicted for failing to report and incriminatory statements could be used against him because the purpose of the statute was regulatory and non-criminal since it was directed to monitoring the public at large and self-reporting was indispensable to the fulfillment of its purposes

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Fruits of Miranda Violation: Subsequent Confession - Elstad and Seibert Case Continue - Elstad

second confession will be admissible. Miranda not constitutional rule and we do cost benefit analysis, enough deterrence flows to allow first out

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Fruits of Miranda Violation: Subsequent Confession - Elstad and Seibert Case Continue - Seibert - Kennedy

second statement is inadmissible if the police officers were deliberately trying to get around the Miranda Rule (bad faith).

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Compulsion - Garrity v. NY

similar to Turley The Fourteenth Amendment prohibits the use in criminal proceedings of incriminating statements made by public employees under threat of termination. The Fourteenth Amendment prohibits the use in criminal proceedings of incriminating statements made by public employees under threat of termination

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Criminal Case - Chavez v. Martinez

statement that was compelled in hospital room argument of defense is that this was criminal investigation and criminal investigation is a criminal case. court did not see it this way, there has to be a proceeding begun in order to trigger criminal case and because they did not use his statements there was no 5A violation. The fifth amendment provides no relief when statements are compelled but are never admitted in a criminal case

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody General

station house arrest is clearly custody now we want to see if no station house and someone just arrested out in public, is that custody? court has basically answered that as yes, arrest equals custody.

subpoena said that Braswell as agent needs to turn over documents, he says the act of production is going to incriminate him, so his is 5A privilege has been violated. court says no, when you assume this role, you have to produce these documents. A custodian's assumption of his representative capacity leads to certain obligations including the duty to produce corporate records on proper demand by the government because the custodian's act of production is not deemed a persona act but rather an act of the corporation

Fifth Amendment: Confessions Waiver and Miranda - How clear does this invocation have to be? General Answer

the answer is quite clear

the court says that slurred speech is admissible because it is a physical characteristic. the court says the 6th birthday question was testimonial because it presented with the cruel trilemma. Court says we are going to make Schmerber text clearer, if the witness faces the cruel trilemma in revealing evidence, that is testimony. The line between testimonial and non-testimonial evidence must be determined by whether the suspect faces the witness faces the cruel trilemma in disclosing the evidence complicates Schmerber because 6 birthday questions was for purpose of seeing brain functionality and was not communicative, was more of physical characteristic. this case did not overrule Schmerber, when face testimonial question, do Schmerber (is this a communication of a fact that can be either true or false) then can run through Muniz (is it like the 6 birthday question which was testimonial) The slurred speech in this case is physical, non-testimonial evidence. Muniz's response to when his 6th birthday was testimonial because he faced the cruel trilemma

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Compulsion - Lefkowitz v. Turley - Holding

the court says that the economic compulsion is enough. They say economic compulsion is compulsion, by threatening losing current and future contracts, that is compulsion. we are taking each element in isolation, but do not forget you need all of them and if you give them immunity then they cannot be prosecuted. If you cannot be prosecuted, then cannot be criminal case, so if statute changed and compelled in different way it would have been okay. A state may not compel an employee to waive his constitutional right of immunity under the Fifth Amendment by threatening him with loss of employment

Fifth Amendment: Confessions Waiver and Miranda - Berghuis v. Thompkins (2010) - The Right to Remain Silent - can the government interrogate after issuing warnings?

the government can continue to interrogate despite the fact that the suspect has not waived as long as they ultimately get a waiver. "the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford."

Fifth Amendment: Confessions -Limitations on Confessions: Miranda - Miranda v. Arizona (1968) Interrogation Practice - Miranda Warnings - court was concerned about waiver, you can waive your privilege?

they are concerned about law enforcement officers persuading you to waive your Miranda rights.

they are what they purport to be sometimes telling government is damning When the witness turns over the documents, the government uses your act of turning over the documents as authenticating the documents

Fifth Amendment: Introduction -Privilege Against Compelled Self-Incrimination: Introduction and Meaning of Compulsion - Criminal Case - US v. LO Ward; Minnesota v. Murphy; Allen v. Illinois - Allen

trying to argue this looks so much like criminal case, that ought to be treated like one. can call it civil commitment, but this is the same as a criminal scheme. court says no, leg calls it a civil case, so we will call it one. You cannot plead the 5th in mental health examinations or civil commitment programs because the legislative scheme and statutory construction specific stated these proceedings are "civil in nature."

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Station house - Oregon v. Mathiason Opinion/Holding

voluntary goes down for questioning. at end of it he is allowed to leave later arrested court said no custody because he came voluntarily and he was allowed to leave at end and there was no anxiety reducing restraints An individual questioned at a police station is not necessarily in custody unless his freedom is restrained so as to render him in custody under Miranda

Fifth Amendment: Confessions Waiver and Miranda - Berghuis v. Thompkins (2010) - The Right to Remain Silent - when does a suspect waive his right to remain silent?

waiver can be presumed by the fact that a suspect ultimately confesses

want to take DUI blood sample, saying having body incriminate himself bring him to hospital for blood sample they order the nurse to take blood without consent. might create 4A problem, now we want to see this from 5A. he claims you are compelling me to become witness against self, by forcing me to take blood, making me witness against self.

went to probation officer and asked him a bunch of questions and later on government used those answered questions for other criminal conduct and probation revoked, he said violation of 5A privilege and the court said he waived his privilege by answering probation officer questions. 5A is not self-execution, if you do not invoke it or remain silent, then too bad. A person who is asked to answer questions must invoke his privilege against self-incrimination or lose its protection

Fifth Amendment: Confessions Waiver and Miranda - Questioning on unrelated crimes - Arizona v. Robertson

what if invoked right to counsel, but police come back and ask about a separate crime. The court says when you invoke right to attorney it is not offense specific, meaning you are not saying I want an attorney for questioning of specific crime it is I want attorney for purposes of interrogation. Invocation of the right to counsel is not offense specific. In other words, police may not initiate questioning about a different crime without the lawyer present

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Station house - General

what if we take out arrest and just have stationhouse, the answer is not always, someone could be interrogated in stationhouse and it might not amount to custody

Fifth Amendment: Confessions Waiver and Miranda - Knowingly - US v. Garibay

what the suspect actually knows not what the officer reasonably believes. does not need to be complex grasp of warnings just basic understanding of them. Government failed to satisfy its burden that the suspect actually understood the warnings

Fifth Amendment: Confessions Waiver and Miranda - Voluntariness - Colorado v. Connelly (1986)

what we are not looking at is the analysis of the individual and whether they acted voluntarily, looking at did government do something to undermine the free will of the person. not looking at subjective state of mind of individual, we are looking at did government do something coercive so that person could not act voluntarily. The voluntariness of a waiver of this privilege against self-incrimination has always depended on the absence of police overreaching not on free choice in any broader sense of the word

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Fruits of Miranda Violation: Subsequent Confession - Basics

when you make one statement and that statement leads you to make another statement, is second statement allowed to be used? sometimes will be suppressed and sometimes it will not.

Fifth Amendment: Confessions - Custody, Interrogation, and Other Questions after Miranda - Custody - Interrogation - Rhode Island v. Innis (1980) - Test

whether an incriminating response would have been likely from an average suspect

Fifth Amendment: Confessions - Exceptions to the Miranda Rule - Emergency Exception - New York v. Quarles (1984) - Facts/Issue

women just been rapped, goes up to officers points him out, officers chase him through supermarket, as searching see empty holster and they say to him, where is the gun. No Miranda rights given. is the statement about the gun admissible?

you can be compelled to do things and that will not be 5A violation, you can be compelled to give evidence, but if the evidence is testimonial then that is what it means to be a witness.

Fifth Amendment: Confessions Waiver and Miranda - Waiver after the invocation of the right to silence - Michigan v. Mosley (1975) - What does scrupulously honored mean?

you have to give the suspect a cooling off period once someone says they do not want to talk to you. have to give some period of time where they have cooled off then you have to read new warnings then you have to make sure they understand them and voluntarily waive them

Criminal Procedure: Investigation - Fifth Amendment

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