5th Amendment - Privilege against compulsory self incrimination
Compliance
Once a custodial interrogation begins, anything the defendant says is inadmissible until the defendant is informed of the Miranda rights and the defendant waives those rights. The failure to give a suspect the Miranda warnings does not require suppression of physical fruits of the suspect's "unwarned but voluntary statements."
Prosecutorial Comment
P may not comment on the D's exercise of the privilege against self-incrimination at trial - per se reversible error!
Exceptions to Miranda
Public Safety: when the P safety is at risk, police are not required to give M warnings before questioning a suspect Routine Booking: police are allowed to ask questions to the suspect for routine biographical questions and to videotape his response without giving M warnings Undercover Cop: Miranda warnings are not required if the suspect being questioned is not aware that the interrogator is a police officer. NOTE: maybe violates 6th right
Use and Derivative Use Immunity
"Use and derivative-use" immunity only precludes the prosecution from using the witness's own testimony, or any evidence derived from the testimony, against the witness. The Supreme Court has held that the grant of "use and derivative-use" immunity is all that is constitutionally required to compel the testimony of a witness. Testimony encouraged by a promise of immunity, however, is considered coerced and involuntary.
Fruits of Tainted Confession - Second Confession
A Miranda violation does not automatically require the suppression of incriminating statements made by the defendant after receiving Miranda warnings. However, a second confession may be suppressed when the circumstances indicate that the substance of Miranda has been drained away. For a plurality of the court, the test is an objective one—a reasonable person in the suspect's position would not have understood the Miranda warnings to convey a message that the suspect retained a choice about whether to remain silent. For the justice who cast the deciding vote (Justice Kennedy), the test is a subjective one—did the police act with an intent to circumvent the purpose of the Miranda warnings
Voluntariness - Trial
Admissions of incriminating statements made during a court-ordered psychiatric examination are generally deemed involuntary and not admissible at trial unless the defendant is given Miranda warnings before the interview and waives his rights. Business papers voluntarily prepared by an individual, or required records, such as tax returns, are not protected.
Miranda rights
Any incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to secure the privilege against self-incrimination (i.e., informed the suspect of his Miranda rights). An incriminating statement includes not only a confession, but other inculpatory statements, and is subject to suppression even though the defendant intended the statement to be exculpatory.
Use of Statements - Impeachment
Statements taken in violation of Miranda may be used to impeach the credibility of the criminal defendant if he takes the witness stand and gives testimony at variance with his previous admissions. To be admissible for impeachment, the statement must be voluntary and trustworthy. The impeaching admissions may not be used directly in deciding ultimate issues of guilt or innocence; they may only be used in determining the defendant's veracity. Post-arrest silence by a defendant who has received Miranda warnings generally may not be used by the prosecution as either impeachment or substantive evidence without violating the defendant's right to due process. some Court has never applied the waiver doctrine to allow post-arrest silence to be admitted for impeachment purposes if the silence occurred after the defendant waived his right to remain silent. However, some states require a defendant to re-invoke his right to remain silent after a waiver to prevent the admission of his subsequent silence as impeachment evidence.
Waiving the Privilege
D waives it by taking stand W waives it by disclosing self-incriminating information in response to a specific question. Having taken the stand, the defendant cannot assert the privilege in response to the prosecution's proper cross-examination of his testimony, including impeachment questions.
Defendant Invoking the Privilege
D who wishes to invoke the privilege simply does so by not taking the stand. This right is the state's inability to compel D to testify. P may not bring the D's failure to testify to the jury's attention
Fruits of Tainted confession - Physical Evidence
Derivative physical evidence (e.g., a gun) obtained as a result of a non-Mirandized confession (i.e., a confession that is inadmissible due to the police's failure to give Miranda warnings) is admissible, so long as that confession was not coerced
Effect of Imprisonment
Imprisonment alone does not necessarily create a custodial situation within the meaning of Miranda. The questioning of a prisoner, who is removed from the general prison population, about events that took place outside the prison is not categorically "custodial" for Miranda purposes. A standard, objective "totality of circumstances" analysis applies when an inmate is interviewed, including consideration of the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted. (holding that defendant was not in custody for purposes of Miranda during seven-hour interrogation that lasted well into the night, because he was told at the outset of interrogation, and was reminded again thereafter, that he could leave and go back to his cell whenever he wanted)
Use of Statements - Involuntary Confession
Involuntary confessions (e.g., those produced by coercion) cannot be used either substantively or for impeachment purposes. If a coerced confession is admitted into evidence, however, reversal is not automatic; the harmless-error test is applied, and the conviction will stand if the prosecution can show other overwhelming evidence of guilt.
What are the Miranda rights?
Law-enforcement officials must inform defendants: i) Of their right to remain silent; ii) That any statement uttered may be used in court; iii) Of their right to consult an attorney and to have the attorney present during an interrogation; and iv) That an attorney will be appointed to represent indigent defendants. must be given before interrogation begins.
Break in Questioning
Miranda protections carry over when there is a break in the interrogation process attributed to a second police agency continuing an interrogation after the first police agency has stopped questioning the suspect.
Federal and State Immunity
Testimony under a grant of immunity may not be used by another U.S. jurisdiction to prosecute the defendant. Thus, a state grant of immunity will preclude admission of the testimony in a federal proceeding.
Warrant for Documents
The Fifth Amendment does not prevent law-enforcement officials, pursuant to a valid warrant, from searching for and seizing documents that would incriminate a person.
Character of the Defendant
The defendant's age, state of health, education, or intoxication are all factors in determining the coercive nature of the confession. Although a potentially significant factor, the defendant's mental condition alone cannot violate the voluntariness standard. There must be coercive police activity for the confession to be found involuntary.
Nature of Proceeding
The privilege extends to a witness in any proceeding, whether civil or criminal, formal or informal, if the answers provide some reasonable possibility of incriminating the witness in future criminal proceedings. However, the privilege cannot be invoked when the government requires civil records to be maintained and reported on for administrative purposes, because they are public records, unless those records fulfill a registration requirement of a select group of inherently suspect criminal activities and compliance would require self-incrimination. The privilege does not extend to identification requests at Terry stops. A violation occurs the moment the compelled statements are used against a person.
Compulsory Disclosure
The privilege generally does not apply to an individual's voluntarily prepared business papers or to records required by law to be kept, such as tax returns. a person can refuse to comply with a requirement to register or pay a tax where the requirement is directed at a select group "inherently suspect of criminal activities." - occupational tax on bookies - registration and tax based on transfer of marijuana
Testimonial Evidence
The privilege protects only testimonial evidence. Nontestimonial physical evidence (such as a blood or urine sample, Breathalyzer test result, handwriting exemplar, voice sample, or other evidence of physical characteristics) is not protected.
Immunity
The prosecution may compel incriminating testimony (at trial or before a grand jury) if it grants immunity to the individual and the individual must testify. The testimony cannot be used against the individual, directly or indirectly, in a subsequent prosecution.
Voluntariness
Volunteered statements are not protected by Miranda because they are not the product of interrogation
Custody
a substantial seizure and is defined for Miranda purposes as either a formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest. If there has been no formal arrest, the question is whether a reasonable person would have believed he could leave, given the totality of the circumstances. A child's age is a relevant factor in determining whether a reasonable child would have believed he was in custody.
5th Amendment
no person shall be compelled in any criminal case to be a witness against himself. It is applicable to the states through the Fourteenth Amendment.
Interrogation
refers to the express questioning, and any words or actions that the police know or should know are reasonably likely to elicit an incriminating response
Use of Statements in Violation of Miranda
the failure to give M warnings is not a violation until a statement obtained without the use of warnings is used at trial
NOTE: Diaries
the government may not compel production of a diary. The contents of a diary are similar to oral testimony, and as such are considered testimonial in nature. Because one cannot be compelled to testify against himself, the government may not compel production of documents that are similarly testimonial in nature. Note, however, that if the diary's production is not compelled, e.g., it is found incident to a lawful arrest, its contents likely are admissible (assuming the entries were made voluntarily).
Involuntary
A confession is involuntary only if the police coerced the defendant into making the confession. Whether a statement is voluntary or coerced is determined based on the totality of the circumstances (including facts such as the conduct of the police, the characteristics of the defendant, and the time of the statement). A claim that a confession should be excluded because it is involuntary must be decided by the trial judge as a preliminary question of fact, and not by the jury.
Custodial Interrogation
A custodial interrogation is questioning initiated by known law-enforcement officers after a person has been taking into custody
Waiver
A defendant may knowingly and voluntarily waive his Miranda rights. The burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowingly and voluntarily There can be no effective waiver, however, until the Miranda warnings are properly given. Silence on the part of the suspect is not sufficient to waive his Miranda rights. However, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Once effectively waived, the police are not required to inform the suspect of the defense counsel's efforts to reach the defendant by telephone and need not inform counsel that the defendant is being questioned.
Scope of Privilege
A defendant may refuse to testify at a criminal trial. He may also refuse to answer questions in other proceedings (i.e., civil depositions) when the answers might incriminate him in future criminal proceedings. The privilege does not prevent the prosecutor from using prior conflicting statements to impeach the defendant once the defendant takes the stand. This is called "opening the door" by the defendant.
Who does the 5th Apply to?
A person means an individual. Artificial entities such as corporations, partnerships, and labor unions may not assert the privilege, but a sole proprietorship may. The privilege does not extend to the custodian of corporate records, even if production would incriminate the custodian individually.
Subpoena
A person who is served with a subpoena requiring the production of possibly incriminating documents may invoke the privilege if the act of turning over the documents constitutes self-incriminating testimony.
Witness's Invoking the Privilege
A witness, on the other hand, may be compelled to take the stand and can invoke the privilege only in response to a specific question when there is some reasonable possibility that answering the question will incriminate the witness. However, such an invocation after testimony has already been made may violate a defendant's right to confrontation, guaranteed by the Sixth and Fourteenth Amendments, if it prevents adequate cross-examination.
Invoking Right to Silence
As with the Fifth Amendment right to counsel, the defendant must make a specific, unambiguous statement asserting his desire to remain silent. Merely remaining silent in response to police questioning does not invoke the privilege. If a defendant invokes his Miranda right to remain silent, the interrogator(s) must "scrupulously honor" that request (e.g., immediately cease interrogation, allow for a significant passage of time, give a second set of warnings). However, if after the defendant is released from custody, the defendant indicates a desire to speak to police, then a subsequent interrogation would be lawful, as long as the defendant was not coerced. The defendant must again receive fresh Miranda warnings.
Counseling Clients to Invoke the Privilege
Attorneys may counsel their clients to invoke the privilege and will not be held in contempt of court. Otherwise, the person invoking the privilege would be denied his Fifth Amendment protection.
Transaction Immunity
Blanket/total = fully protects a witness from future prosecution for crimes related to her testimony.
Invoking 5th Right to Counsel
The right to counsel under the Fifth Amendment is not automatic. To invoke the right to counsel under the Fifth Amendment, the defendant must make a specific, unambiguous statement asserting his desire to have counsel present. If a suspect makes an ambiguous statement regarding the right to counsel, the police are not required to end the interrogation or to ask questions or clarify whether the suspect wants to invoke the right. However, once that right to counsel is invoked, all interrogation must stop until counsel is present. If the defendant voluntarily initiates communication with the police after invoking his right to counsel, a statement made by the defendant, such as a statement that the defendant spontaneously blurts out, can be admissible because it is not made in response to interrogation. In addition, police may re-open interrogation of a suspect who has asserted his Fifth Amendment right to counsel if there has been a 14-day release from custody. In such circumstances, the police can ask the defendant if she wants to talk and if she says yes, the officers must give fresh Miranda warnings and get a valid waiver before beginning questioning.
Invocation of Privilege should Not Impose a Burden
The state cannot penalize a defendant for invoking his right against self-incrimination by not testifying or cooperating with authorities. The prosecution cannot comment to the jury on the defendant's refusal to speak in accordance with his Miranda rights. A violation in this regard by the state triggers the harmless-error test. However, if during trial the defendant claims that he was not allowed to explain his story, then the prosecution may comment on the defendant's failure to take the stand.
Grand Jury
There is no requirement to give M warnings to a witness testifying for the GJ. The witness may consult with an attorney outside the GJ room
Trickery
Trickery by the police or false promises made to the accused by the police may render a confession involuntary. However, deceit or fraud by the interrogators (i.e., lying about a co-conspirator's confession) does not itself make the confession involuntary
