Fifth Amendment

When does violation of Fifth Amendment rights occur?

A violation only occurs if the state is trying to use the compelled statements in a court of law against the Defendant.

When does Miranda apply to "interrogation"

Once the Defendant is in custody, "any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response" are subject to Miranda

What types of statements in responses to police interrogation are protected by Miranda?

Only testimonial statements are protected by Miranda. Non testimonial questions such as his birthday, name, etc are not protected. Routine booking questions are admissible

Fifth Amendment Language

"No person shall be compelled in a criminal case to witness against himself"

Basic rules from Miranda

-Prior to questioning, D MUST be Mirandized -If at ANY time D invokes, then the questioning must cease

If the Defendant invoked his right, and the questioning continues, what must the prosecution prove?

1) Court must determine if he actually invoked 2) If statements made because questioning didn't terminate, the court can only admit statements if they found that either D initiated the further discussion and the defendant knowingly and intelligently waived the right he invoked

When is Miranda advice required?

1) Custody 2) Interrogation 3) Testimonial

What are the three provisions that govern police conduct during interrogations?

1) Fifth amendment right against self incrimination 2) Sixth Amendment right to counsel 3) Due Process

Is the Fifth Amendment implicated?

1) Is the Defendant in custody? 2) Is there interrogation? 3) Was he Mirandized? 4) Did the Defendant invoke the right to remain silent or have an attorney? 5) Did Defendant waive?

What are some factors that determine whether or not D was in custody for purposes of Miranda?

1) Location of questioning 2) Duration 3) Statements made during the interview 4) Physical restraint 5) *whether or not the interviewee was told that he was free to leave 6) Age of child **subjective view of officer not relevant

What four things must the government tell you?

1) Right to remain silent 2) Right to counsel 3) Anything you say can be used against you 4) If you can't afford an attorney, one will be provided for you

Exceptions to Miranda

1) Under Cover officer 2) Booking Questions 3) Public Safety 4) Hiibel- if he is just being a jackass and doesn't reasonably believe the information will actually incriminate him (not telling the officer his name just to be difficult)

What must a waiver include?

1) Voluntarily (cannot be coerced) 2) Knowingly and intelligent- D must be aware of what rights he is giving up (Waiver must have been made with awareness and knowledge of what rights are being abandoned) **Does not have to be express waiver in writing

How long does a prisoner have to be out of prison to return to his normal life?

14 days. If the prisoner is out of prison for this amount of time, then that is enough time to escape the coercive effects of his first interrogation and seek advice

What if there is a coerced confession?

If the confession is coerced, then the harmless error doctrine applies. The state must prove the admission of the statement was a harmless error.

Does Miranda apply to physical evidence?

No, Miranda does not apply to physical evidence, only testimonial statements. Introduction of physical evidence at trial does not implicate the Self-Incrimination clause (Gun in park where Defendant told police the location is not protected under Miranda)

Is the Fifth Amendment invocation limited to one particular crime?

No, the fifth amendment invocation is a blanket statement. ANYTHING you say can be used against you. (D waived rights for murder, but not for gun possession. Doesn't matter)

Do undercover officers have to give Miranda warnings?

No, undercover officers do not have to give Miranda warnings because there is no coercion element present. The Defendant had no reason to fear that he would be compelled to answer questions

Does the Defendant have to know all the consequences of his actions before he waives rights to Miranda?

No. D just make knowingly/intelligent waiver, but does not have to know every single consequence

Do statements made not under Miranda taint further voluntary statements?

No. If a statement is given not under Miranda, then the Defendant makes the same statement later while under Miranda, the first statement does not taint the second statement. Only if an unwarned statement was coerced would that give rise to possible problems in the future **No such thing as fruit statements unless the conduct was intentional by the police

Does the warning given have to be identical to the language used by Court in Miranda decision?

No. The standard is whether or not the waiver reasonably conveyed to the suspect his rights as required by Miranda. Does not have to be exact, word for word

Due Process Clause of the Fifth Amendment

Prohibits the federal government from depriving an individual of life, liberty, or property without due process of law. The purpose of this clause is to prevent abuse of government authority in legal proceedings. Due process also requires that the federal government use fair methods or procedures when its actions would deprive an individual of life, liberty, or property.

Define "interrogation"

Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom

How must the Defendant invoke his right?

The Defendant must invoke the Fifth Amendment unambiguously. He cannot just sit silent and then make statements that indicate the opposite. This indicates implicit waiver if he continues with conduct that indicates waiver

How does the Due Process Clause relate to confessions?

The Due Process clause controls confessions and interrogation by making sure they are not involuntary or coerced. A statement must have been made voluntarily under the totality of the circumstances (thinking here is that no one would ever confess unless they actually did it) -is the Defendant's will overborne?

What must police do when a Defendant invokes his fifth amendment right to counsel?

The police must stop questioning and cannot question him again until an attorney is present. This includes every crime the defendant might be involved in, not just one crime

Public safety exception to Miranda

Where there are exigent circumstances requiring public safety, a suspect in custody may be questioned without first being read his Miranda warnings. Social concerns outweighs cost to individual defendant

Define "custody" for purposes of Miranda

Whether a reasonable person would have felt that he/she was not at liberty to terminate the interrogation and leave **Traffic stops and Terry Stops are not custody for purposes of Fifth Amendment

Can law enforcement come back and resume questioning after he has honored the Defendant's invocation?

Yes, as long as the police stop questioning, they can come back and begin questioning again as long as they've honored the request. If sufficient time has passed, then the Miranda warnings can be repeated

Do the police have to elicit the statements for them to be considered "interrogation"?

Yes. Even if the police are present, and the Defendant starts talking, this isn't interrogation unless the police ask them a question (Mauro- D talked to his wife in the presence of police and this was NOT interrogation)