CRIMINAL PROCEDURE - 5TH AMENDMENT

What does Miranda require for any statement by a suspect in response to custodial interrogation to be admissible in the prosecution's case-in-chief against the suspect?

Under Miranda, for any statement in response to custodial interrogation to be admissible in the prosecution's case-in-chief against the suspect, the government must administer the full Miranda warnings before the custodial interrogation. This requirement applies regardless of the suspect's subjective characteristics or knowledge of the law.

What is use-and-derivative-use immunity?

Use-and-derivative-use immunity means that the government promises not to use, in a later criminal prosecution against a witness, either (1) a compelled communication or (2) any evidence found as a direct or indirect result of the compelled communication. If the government confers this immunity, then the compelled communication is not deemed incriminating. This means, in turn, that the privilege against compulsory self-incrimination does not apply to the communication. Use-and-derivative-use immunity is not true immunity from prosecution. If the government finds evidence about a crime related to the communication, and the discovery bears no causal relationship to the communication, then the government may prosecute the witness based on that evidence.

What is a Miranda two-step scenario?

A Miranda two-step scenario is a peculiar factual situation that follows this general sequence: (1) the police obtain an incriminating statement from a suspect during custodial interrogation, without administering Miranda warnings; (2) the police administer Miranda warnings to the same suspect, and after this, the suspect makes a second incriminating statement. In these cases, there is no question that Miranda's exclusionary rule applies to the first statement. The U.S. Supreme Court has not fully explained to what extent Miranda's exclusionary rule applies to the second statement. The Court has, however, identified certain factors making it more or less likely that the second statement will be excluded.

For due-process purposes, what is a coerced statement?

For due-process purposes, a coerced statement is an involuntary statement. A statement is involuntary, in turn, if police engage in coercive conduct that actually overbears a suspect's will, so that the statement is not the product of a free choice.

For purposes of determining whether police coerced a suspect to make a statement, what is coercive conduct?

For purposes of determining whether police coerced a suspect to make a statement, coercive conduct is unfair manipulation. Unfair manipulation is conduct meant to get a confession for the sake of getting a confession, with scant regard for the truth of things. Harsh, extreme, and unusual tactics strongly signal unfair manipulation (e.g., false promises of leniency, actual or threatened violence or deprivation of necessities, promises to protect the suspect from perceived imminent harm, and so on). Not all police practices that encourage confession are coercive, though. Routine interrogation, for instance, is virtually never coercive, provided police comply with the Miranda doctrine. Only when police conduct crosses the line into unfair manipulation does it become coercive.

What is custody, for purposes of the Miranda doctrine?

For purposes of the Miranda doctrine, custody is a restraint on the suspect's movement that is the functional equivalent of a formal arrest. This requires a degree of restraint more significant than the minimum necessary to constitute a seizure under the Fourth Amendment, such as a brief investigative stop. Rather, Miranda custody is a degree of detention that suggests a longer term and more serious infringement on the suspect's liberty. This often arises when the police forcibly restrain or essentially take possession of a person.

What is interrogation, for purposes of the Miranda doctrine?

For purposes of the Miranda doctrine, interrogation is either (1) express questioning or (2) any words or deeds that a reasonable law-enforcement officer would expect to elicit an incriminating response from the suspect. The Miranda doctrine applies only when the government subjects an individual to custodial interrogation.

Under what circumstances is a communication generally incriminating, for purposes of the privilege against compulsory self-incrimination?

For purposes of the privilege against compulsory self-incrimination, a communication is incriminating if a reasonable person in the witness's position would believe that the communication: (1) could be used against the witness in a criminal prosecution or (2) could lead to the discovery of evidence that would implicate the witness in a crime. Put simply, a communication is incriminating if there is a reasonable possibility that it could expose the witness to criminal liability.

For purposes of the privilege against compulsory self-incrimination, what is testimonial evidence?

For purposes of the privilege against compulsory self-incrimination, testimonial evidence consists of any verbal or nonverbal act that is intended to convey facts or information, usually in the manner of a witness testifying about events. Physical evidence, by contrast, is not testimonial, because it is not communicative in character (e.g., handwriting, voice, or blood samples; drugs, weapons, and other contraband; and a person's physical characteristics). Thus, the privilege against compulsory self-incrimination does not apply to physical evidence.

What three requirements must a communication meet for the privilege against compulsory self-incrimination to apply to it?

For the privilege against compulsory self-incrimination to apply to a communication, the communication must: (1) be compelled, (2) tend to incriminate the witness who made it, and (3) be testimonial. If these requirements are met, then the communication is inadmissible as evidence of guilt against the person who made it.

To what must the government subject an individual for the requirements of the Miranda doctrine to apply?

For the requirements of the Miranda doctrine to apply, the government must subject an individual to custodial interrogation. This imposes two distinct requirements, which must exist simultaneously: custody and interrogation.

Under what circumstances is a communication generally compelled?

Generally, a communication is compelled if a reasonable person under the circumstances would not feel free to decline the government's request to make the communication. Put differently, compulsion means that the government has essentially substituted its own will for the witness's, such that the witness must make the communication or suffer the consequences. A communication is virtually always compelled if: (1) it is made in response to a legally binding command, such as a subpoena, summons, or court order, or (2) the witness must either make the communication or else lose important rights, such as the ability to earn a living, practice a chosen profession, or participate in important aspects of the political process

If a person subjected to custodial interrogation has invoked the Miranda right to remain silent, what must the officers conducting the interrogation do?

If a person subjected to custodial interrogation has invoked the Miranda right to remain silent, the officers conducting the interrogation must scrupulously honor the invocation. The main factors to determine whether further, post-invocation questioning satisfies this test are: (1) whether police immediately ceased questioning the suspect upon the invocation, (2) how much time passed between the invocation and further questioning, (3) whether the suspect received fresh Miranda warnings before further questioning, (4) whether further questioning was conducted by a different officer in a different setting, and (5) whether the post-invocation questioning concerned a different crime. Immediate cessation followed by a substantial break in time, fresh warnings, and questioning by a different officer about a different crime is most likely to satisfy the test.

In a Miranda-two-step scenario, what five factors make it more likely that Miranda's exclusionary rule will apply to the second statement?

In a Miranda two-step scenario, these five factors make it more likely that Miranda's exclusionary rule will apply to the second statement: (1) the initial omission of Miranda warnings was deliberate; (2) little time elapsed between the initial violation and the second statement; (3) under the circumstances, it seems likely that the suspect either viewed the whole experience as one continuous interrogation or believed that the first statement effectively sealed his or her fate; (4) the suspect's ability to understand and assert the Miranda rights was materially hindered; and (5) the circumstances indicate that the police contrived the experience to circumvent the protections of Miranda.

In a Miranda-two-step scenario, what four factors make it less likely that Miranda's exclusionary rule will apply to the second statement?

In a Miranda two-step scenario, these four factors make it less likely that Miranda's exclusionary rule will apply to the second statement: (1) the initial omission of Miranda warnings was an honest mistake; (2) substantial time elapsed between the initial violation and the second statement; (3) under the circumstances, the suspect likely viewed the second interrogation as a distinct experience from the first; and (4) the circumstances indicate that the police did not contrive the experience to circumvent the protections of Miranda.

If law-enforcement officers employ an unnecessarily suggestive identification process, what principal factors will a court consider when determining whether the resulting pre-trial identification is reliable?

In assessing the reliability of a pre-trial identification resulting from an unnecessarily suggestive procedure, courts will consider the totality of the circumstances. Principal factors to consider include: (1) the witness's opportunity to view the perpetrator at the time of the crime, (2) how much attention the witness paid to the perpetrator, (3) the accuracy of the witness's prior description of the perpetrator, (4) the time that elapsed between the crime and the identification, and (5) the degree of certainty the witness exhibited during the identification procedure.

What three factors do courts generally consider in determining whether coercive police conduct actually overbore a suspect's will and caused the suspect to make an involuntary incriminating statement?

In determining whether coercive police conduct actually overbore a suspect's will and caused the suspect to make an involuntary incriminating statement, courts consider three general factors: (1) any tactics the police used; (2) the details of any interrogation, including the setting, the manner and duration of questioning, whether the suspect was isolated or deprived of necessities (e.g., restroom access or water), and infliction of mental or physical discomfort; and (3) the suspect's subjective characteristics, especially those that might cause the suspect's will to be overborne easily, including age, intelligence, mental and physical health, education, any addictive behavior, history with the criminal-justice system, and so on.

Is a one-person show-up procedure categorically an unconstitutionally suggestive procedure under the Due Process Clause?

No. A one-person show-up procedure-in which a complaining witness is asked to confirm the identity of a suspect without being offered any alternative individuals to identify—is not categorically an unconstitutionally suggestive procedure under the Due Process Clause. The Supreme Court has described these procedures as extremely suggestive, observing that they have been strongly condemned. The Court has not, however, interpreted the Due Process Clause to ban the procedure. In practice, the procedure is commonly used. It is generally justified as a necessary and even useful tool when the suspect is presented to the complaining witness shortly after the alleged crime, ideally at the scene.

Is a suspect's statement necessarily coerced or involuntary, just because police lied or made false promises to induce the statement?

No. A suspect's statement is not necessarily coerced or involuntary, just because police lied or made false promises to induce the statement. The lie or promise must in fact overbear the suspect's will and deprive the suspect of the ability to make a free choice, or else it is not coercive. A false promise is generally coercive if the suspect makes the statement not because of a desire to tell the truth, but a desire to obtain what was promised (e.g., false promise of lenient sentencing or better treatment during incarceration). Lies about the facts of the case or the investigation are generally not deemed coercive (e.g., false statement that an accomplice has confessed). Lies about some imminent threat to the suspect, from which the police will protect him or her upon confession, are very likely to be coercive.

If police coerce a suspect into making a self-incriminating statement, is the statement admissible against the suspect at a criminal trial as substantive evidence of guilt?

No. As a matter of due process, if police coerce a suspect into making a self-incriminating statement, the statement (whether true or not) is not admissible against the suspect at a criminal trial as substantive evidence of guilt. This is so even if police followed the Miranda requirements and honored the suspect's Sixth Amendment right to counsel.

As part of a criminal investigation, the police forced a suspect to produce a writing sample so that they could compare the suspect's writing to the writing in a letter known to have been written by the perpetrator of the crime. Does this violate the suspect's privilege against self-incrimination?

No. Compelling the suspect to produce a writing sample does not violate the suspect's privilege against self-incrimination. The privilege against self-incrimination applies only to evidence that is testimonial, or communicative—that is, only when the government seeks to compel the suspect to communicate information in the manner of a witness relaying facts about an event. Courts have held that writing samples are nontestimonial; like fingerprints or voice samples, their purpose is identification, not communication. Here, the police want the writing sample simply to compare the suspect's handwriting to that of the perpetrator. A person can be compelled to produce a writing sample for identification purposes in a criminal investigation. Thus, forcing the suspect to supply a writing sample does not violate the privilege against self-incrimination.

Just after an armed robbery, the victim approached a police officer and described the robber as a young man wearing a t-shirt and jeans. Shortly after, about three blocks away, police apprehended a young man who matched that general description. The police brought the young man to the crime scene in handcuffs and showed him to the victim, who claimed to be "70 percent sure" that the young man was the robber. Prior to trial, the young man moved to suppress all evidence of this one-man show-up identification as unconstitutionally suggestive. The trial court concluded that the procedure was suggestive, and the identification was not reliable. The victim's initial description was vague, and the identification was tentative. Should this identification be suppressed?

No. Constitutional due process does not require suppressing evidence of the show-up procedure at trial. Due process bars admitting an out-of-court identification when the identification procedure: (1) was conducted by law enforcement, (2) was suggestive, (3) produced an unreliable identification, and was unnecessary under the circumstances. Here, the first three conditions are satisfied. Law enforcement conducted the show-up. The trial court concluded that the process was suggestive, and the identification unreliable. However, the fourth condition is not satisfied. Courts generally deem an on-the-scene show-up identification to be a permissible, valuable, and even necessary law-enforcement tool, given the speed with which it is conducted following the offense. The procedure here was therefore not unnecessary, so no due-process violation occurred.

The victim of a robbery chased the perpetrator but lost sight of him. The victim entered a subway station. Inside, she saw two police officers questioning a young man whom they had just observed trying to jump the turnstile. Believing the young man to be the robber, the victim approached the officers and identified him as the robber. Prior to trial, the young man moved to suppress the identification as unduly suggestive, as he was then in police custody and was the only person whom the victim had a chance to identify. The court concluded that the circumstances of the identification were unnecessarily suggestive, producing an unreliable identification. Should this identification be suppressed?

No. Constitutional due process does not require suppression of the identification. For an unreliable pretrial identification to be suppressed as the product of an unduly suggestive procedure on due-process grounds, the procedure must have been arranged by law-enforcement actors. Otherwise, there is no government action and, hence, no constitutional violation to remedy. Here, the police officers were involved in the circumstances leading to the identification, but they did not orchestrate it. On the contrary, the officers did not even know that the victim was identifying the young man as the robber until after the identification occurred. Because the police did not orchestrate the identification, there was no government action and, thus, no constitutional violation. Constitutional due process does not require suppression of the identification.

A kidnapper held a victim captive in his basement. Each morning and evening, the kidnapper would enter the basement to bring the victim food and speak to him for a few minutes. After three months' confinement, the victim escaped and ran to a police station. Based on the victim's description of the kidnapper's house, the police arrested a defendant at his home. At the station, police told the victim, "We caught the guy." They then showed the defendant to the victim, and asked him to confirm they had arrested the right person. The victim said, "Yes, that's him." The trial court held that the station-house identification procedure was unnecessarily suggestive and unreliable, making the identification inadmissible on due-process grounds. Is the trial court correct?

No. Due process does not prohibit the victim from identifying the defendant as the kidnapper at trial. Under the Due Process Clause, an in-court identification is admissible, notwithstanding an unconstitutional out-of-court identification by the same witness, if there is an independent basis for the witness to identify the defendant as the perpetrator at trial. "Independent" means wholly separate from the unconstitutional pretrial identification procedure. Here, the victim interacted with his kidnapper daily for three months. That extensive exposure had nothing to do with the circumstances at the station house. It is an independent basis for the victim to identify the defendant as the kidnapper, even if the station-house identification was itself unconstitutionally suggestive. Accordingly, the victim may identify the defendant as the kidnapper at trial.

Before trial, a witness identified the defendant as the perpetrator. At trial, the court ruled the identification constitutionally invalid, on the ground that the law-enforcement procedure producing it was unnecessarily suggestive, and it was unreliable. However, the government showed that the witness had an independent basis to identify the defendant as the perpetrator, separate and apart from the illegal process itself. May evidence of that pretrial identification be introduced at trial?

No. Evidence of the pretrial identification may not be introduced at trial. If an out-of-court pretrial identification procedure is unconstitutionally suggestive and produces an unreliable identification, evidence that the witness identified the defendant during that unconstitutional procedure is inadmissible as a matter of due process. An independent basis for recognizing the suspect may permit the witness to identify the defendant in court, but it does not permit introduction of evidence of the earlier, out-of-court identification. Here, the underlying procedure yielding the pretrial identification was unconstitutionally suggestive, and the identification was unreliable. Thus, evidence of the identification is inadmissible. The witness's independent basis for recognizing the defendant might allow identification at trial, but the pretrial identification may not be introduced as evidence.

The police forced a suspect to stand in a lineup and utter words that the perpetrator of a crime allegedly said while committing the offense. Does this violate the suspect's privilege against self-incrimination?

No. Forcing a criminal suspect to participate in a lineup and say words allegedly spoken by a perpetrator does not violate the privilege against self-incrimination. The Fifth Amendment prevents the government from requiring a person to be a witness against himself. The privilege against self-incrimination, however, applies only to evidence that is testimonial or communicative; i.e., it applies when the government seeks to compel the suspect to communicate information in the manner of a witness relaying facts about an event. Here, participating in a lineup and uttering the perpetrator's alleged words is nontestimonial and does not force the suspect to relay self-incriminating facts in the manner of a testifying witness. The suspect's appearance and words serve merely an identifying purpose, akin to fingerprints. Thus, the suspect can be compelled to say the perpetrator's alleged words.

If a criminal defendant elects not to testify at trial, may the prosecutor comment to the fact finder about that decision?

No. If a criminal defendant elects not to testify at trial, the prosecutor may not comment to the fact finder about that decision at all (e.g., by asking the jury to infer inability to mount a defense). A criminal defendant has a constitutional right not to testify at trial. The U.S. Supreme Court has held that prosecutorial comment on the decision to exercise that right infringes the right.

If a criminal defendant elects to testify at trial, may the defendant assert the privilege against compulsory self-incrimination on the witness stand?

No. If a criminal defendant elects to testify at trial, the defendant may not assert the privilege against compulsory self-incrimination on the witness stand. The decision to testify waives the privilege. At this point, the defendant becomes like any other witness and must testify truthfully, fully, and accurately. The prosecution may cross-examine the defendant as to all facts implicated by his or her testimony and may employ all proper methods to impeach that testimony.

If a person subjected to custodial interrogation invokes the Miranda right to counsel, may the interrogation continue?

No. If a person subjected to custodial interrogation invokes the Miranda right to counsel, the interrogation (usually questioning) must cease immediately. It cannot resume unless the suspect: (1) has the assistance of counsel in connection with the interrogation, (2) unilaterally (unprompted by police) reinitiates a conversation about the underlying subject matter and (3) knowingly and voluntarily waives the right to counsel, or (4) is released from custody for 14 days before a new custodial interrogation with fresh Miranda warnings commences.

If a witness testifies as to a particular fact or belief, may the witness invoke the privilege against compulsory self-incrimination to avoid providing further relevant details about that fact or belief?

No. If a witness testifies as to a particular fact or belief, the witness may not invoke the privilege against compulsory self-incrimination to avoid providing further relevant details about that fact or belief. Put differently, once the witness has disclosed a general fact or belief, the privilege is waived as to further relevant details.

If police coerce an incriminating statement from a suspect out of a need to avert an imminent threat to public safety, is the statement admissible at a criminal trial against the suspect?

No. If police coerce an incriminating statement from a suspect out of a need to avert an imminent threat to public safety, the statement is not admissible at a criminal trial against the suspect. Put differently, unlike Miranda, the due-process rule excluding coerced statements does not recognize a public-safety exception.

If police coerce an incriminating statement from a suspect, are any physical fruits of the statement admissible at a criminal trial against the suspect under due-process principles?

No. If police coerce an incriminating statement from a suspect, any physical fruits of the statement are not admissible at trial against the suspect under due-process principles. This rule differs from that under the Miranda doctrine, which permits admission of the physical fruits of a Miranda violation.

Can an out-of-court identification of a criminal defendant be suppressed as unduly suggestive under the Due Process Clause if the identification was not orchestrated by law enforcement?

No. If the identification was not orchestrated by law enforcement, an out-of-court identification of a criminal defendant cannot be suppressed as unduly suggestive under the Due Process Clause. For an identification procedure to be suppressed as unduly suggestive under the Due Process Clause, the procedure must have been arranged by law enforcement. For there to be any constitutional violation at all—and, hence, a remedy such as suppressing evidence—there must be government action. If law enforcement does not orchestrate the identification, there is no government action and, thus, no constitutional violation to remedy.

If police coerce a suspect into making a self-incriminating statement, is the statement admissible at a criminal trial against the suspect to impeach the suspect's testimony?

No. If the police coerce a suspect into making a self-incriminating statement, the statement (whether true or not) is not admissible against the suspect at a criminal trial to impeach the suspect's testimony. The rule here differs from the Miranda doctrine; a statement obtained in violation of Miranda is admissible to impeach the suspect's testimony.

In general, if a witness's pretrial identification of a defendant as the perpetrator is inadmissible on due-process grounds, may the witness identify the defendant as the perpetrator at trial?

No. In general, if a witness's pre-trial identification of a defendant as the perpetrator is inadmissible on due-process grounds, the witness may not identify the defendant as the perpetrator at trial. There is one exception. If the witness can identify the defendant relying solely on knowledge gleaned completely independently of the unconstitutional procedure producing the pretrial identification, then the witness may take the stand and identify the defendant at trial.

In general, does the privilege against compulsory self-incrimination apply to written documents that the witness created of his or her own volition?

No. In general, the privilege against compulsory self-incrimination does not apply to written documents that the witness created of his or her own volition (i.e., without government compulsion). Thus, the government may compel the witness to turn over those documents without violating the privilege. Of course, the privilege is implicated if the government compels the writing initially. However, sometimes, the very act of turning over the documents may tacitly communicate certain facts that could incriminate the witness (e.g., the papers' existence and authenticity or the witness's control over them). In this rare case, the privilege will apply to the documents, unless the government has independent knowledge of three facts at the time it seeks production: (1) the documents exist, (2) the documents are authentic, and (3) the witness has possession or control over the documents.

Does the Fifth Amendment privilege against compulsory self-incrimination apply only at criminal trials?

No. The Fifth Amendment privilege against compulsory self-incrimination applies not only at criminal trials, but also at any civil or criminal proceeding, whether formal or informal, in which the witness's answers to questions might incriminate the witness in future criminal proceedings. However, the operation of the privilege differs, depending on who asserts it and in what context.

Does the Miranda exclusionary rule apply to physical evidence?

No. The Miranda exclusionary rule does not apply to physical evidence. If law-enforcement officers obtain a statement from a defendant in violation of the Miranda doctrine, the prosecution may not use that statement against the defendant in its case-in-chief. But if police discover or are able to obtain physical evidence (e.g., a murder weapon) by virtue of the statement, the prosecution may introduce that evidence (but not the statement) in its case-in-chief at trial, provided the evidence is otherwise admissible.

A detective took a burglary suspect into custody, brought him to the stationhouse for interrogation, and advised him of his Miranda rights. The suspect invoked his Miranda right to counsel, and the detective stopped questioning him and left the room. Half an hour later, the detective returned to offer the suspect a sandwich. The suspect immediately asked about the potential prison term for burglary. The detective answered the question, administered Miranda warnings, and asked the suspect whether he wanted to get anything off his chest. The suspect then confessed to the burglary. Was the confession obtained in violation of Miranda?

No. The confession was not obtained in violation of Miranda. If one subject to custodial police interrogation invokes the Miranda right to counsel, this bars further interrogation for any offense. Interrogation may resume if the suspect unilaterally reinitiates the conversation and knowingly and voluntarily waives the right. Initiation means words or actions indicating a desire to speak of the subject of the interrogation. Generally, a suspect knowingly and voluntarily waives Miranda rights by making statements after receiving Miranda warnings. Here, the suspect invoked his right to counsel while in custodial police interrogation. By asking about the burglary sentence without prompting, he unilaterally showed desire to discuss the crime. After this, the detective gave fresh Miranda warnings, and the suspect confessed. Thus, the detective never violated the suspect's Miranda rights.

Police took a burglary suspect into custody and brought him to the stationhouse for interrogation. After receiving Miranda warnings, the suspect invoked his Miranda right to counsel. The interrogating detective immediately left the interrogation room. The suspect was then relocated to a general holding cell. Hoping to obtain a confession from the suspect, the police sent an undercover officer into the suspect's cell posing as another arrestee. The officer asked the suspect what he was arrested for, and the suspect indicated burglary. When the officer asked the suspect whether he committed the burglary, the suspect replied that he did. The suspect was unaware of the undercover officer's role. Was the confession obtained in violation of Miranda?

No. The confession was not obtained in violation of the suspect's Miranda rights. In general, if one in custodial interrogation invokes the Miranda right to counsel, all interrogation about any crime must immediately cease. However, the Miranda protections do not apply if the suspect is unaware that the person administering the interrogation is a government agent. That is because Miranda applies only in the context of custodial interrogation, and interrogation is not deemed custodial unless the suspect knows he or she is dealing with a government agent. Here, when the suspect confessed, he thought he was speaking to a fellow arrestee. He did not know of the undercover officer's role. Thus, the protections of Miranda did not apply to the confession, and it follows that the suspect's Miranda rights were not violated.

Does the privilege against compulsory self-incrimination afford a witness who is not a criminal defendant the right to refuse to testify at all?

No. The privilege against compulsory self-incrimination does not afford a witness who is not a criminal defendant the right to refuse to testify at all. Rather, the witness must take the stand and expressly assert the privilege in response to specific questions. Only in exceptional cases will a court permit the witness to refuse to take the stand altogether. This usually happens if there is a reasonable probability under the circumstances that the witness will self-incriminate by answering any relevant question.

Police officers patrolling a public park saw a man place a duffle bag inside a garbage can and then walk away. The officers examined the bag and soon realized it contained a bomb. The officers chased the man, tackled him, and demanded to know whether there were any other bombs. When the man refused to respond, one of the officers aimed her gun at the man's head and threatened to shoot him if he did not answer. The man responded that there was another bomb at a nearby bank. The police defused the park and bank bombs, and the man was charged with planting explosive devices. Are the man's statement and bank bomb admissible?

No. The statement and the bank bomb are not admissible against the man under due-process principles. Due process protects against coerced incriminating statements, or confessions. Any confession that the government coerces from a suspect is inadmissible at trial against the suspect—as are any physical fruits of coerced statements. Coercion includes threats of physical violence. And unlike Miranda, due-process protection does not acknowledge any exception for ongoing threats to public safety. Here, the officer put a gun to the man's head and threatened to shoot him if he did not indicate whether there were any bombs other than the park bomb. So, the man's response was coerced. Further, the police found the bank bomb as a direct result of the response. Thus, despite the threat posed by the bombs, due process renders the response and the bank bomb inadmissible.

Police took a burglary suspect into custody and brought him to the stationhouse for interrogation. After receiving Miranda warnings, the suspect invoked his Miranda right to counsel. The police immediately ended the interrogation and released the suspect. Over the ensuing three weeks, the police investigated further and found the suspect's thumb print at the scene of the burglary. The police then took the suspect into custody again and returned him to the station for interrogation. The officers again read the suspect his Miranda rights. This time, the suspect agreed to speak to the officers about the burglary. In the ensuing interrogation, the suspect made statements that implicated him in the burglary. Were the statements obtained in violation of Miranda?

No. The statements were not obtained in violation of the suspect's Miranda rights. The Fifth Amendment, via Miranda, guarantees a person subject to custodial interrogation the right to the assistance of counsel. If that person invokes the right, this bars all further police interrogation for any offense. But custodial interrogation may resume if the suspect is released from custody for 14 days, provided fresh Miranda warnings precede the interrogation. Here, the suspect invoked his right to counsel while in custodial interrogation. The police then released him from custody for three weeks, or 21 days. Later, the police took the suspect into custody again and administered fresh Miranda warnings before resuming interrogation. Thus, because the questioning took place after the 14-day window, the preceding invocation of the right to counsel did not bar the later interrogation.

What four Miranda warnings must precede a custodial interrogation by police?

The four Miranda warnings that must precede a custodial interrogation by police are that: (1) the person in custody has a right to remain silent; (2) anything the person says can be used against him or her in court; (3) the person has the right to have an attorney present during questioning; and (4) if the person cannot afford an attorney, one will be provided.

What is the public-safety exception to the Miranda rule?

The public-safety exception is a rule that if there is an immediate need to conduct limited custodial interrogation to forestall a serious risk to public safety (e.g., questioning to determine the location of a bomb about to explode), the Miranda requirements do not apply. The exception requires an ongoing emergency. Ordinarily, law-enforcement officers must administer Miranda warnings prior to commencing custodial interrogation, but the public-safety exception obviates this need if it applies. The exception is limited by the nature of the underlying emergency. Once the emergency has passed, the normal Miranda rules apply.

Does the Fifth Amendment privilege against compulsory self-incrimination afford a criminal defendant a right to refuse to testify at all at trial?

Yes. The Fifth Amendment privilege against compulsory self-incrimination affords a criminal defendant a right to refuse to testify at all at trial. Put differently, the defendant has absolute discretion to decide whether to testify at trial or not.

Could evidence of a pretrial identification procedure by law enforcement be admissible even if it is so suggestive as to undermine the reliability of the resulting identification?

Yes. Evidence of a pretrial identification procedure by law enforcement can be admissible even if it is so suggestive as to undermine the reliability of the resulting identification. To exclude evidence of a pretrial law-enforcement identification procedure, the Due Process Clause requires both that the procedure be unnecessarily suggestive, and that the resulting identification be unreliable under the totality of the circumstances. In addition, the suggestive procedure must have been unnecessary under the circumstances. If exigent circumstances supported using a suggestive process at the time—i.e., if using an alternative, more reliable process was not practicable—there is no due-process violation.

Could evidence of a pretrial identification procedure by law enforcement be admissible even if the procedure producing it was unnecessarily suggestive?

Yes. Evidence of a pretrial identification procedure by law enforcement could be admissible even if the procedure producing it was unnecessarily suggestive. Evidence of the identification will be inadmissible under the Due Process Clause only if the procedure was unnecessarily suggestive, and the resulting identification was ultimately unreliable. The court will consider the totality of the circumstances to determine whether the identification is reliable.

If a person subject to custodial interrogation invokes the Miranda right to counsel, may the person later waive the right without the assistance of an attorney?

Yes. If a person subject to custodial interrogation invokes the Miranda right to counsel, the person may later waive the right without the assistance of an attorney. The waiver must be knowing and intelligent. In addition, the waiver must take place after the person has reinitiated the conversation without prompting by the police. Initiation includes words or actions that indicate a desire to speak about the subject matter of the interrogation. Questions or statements about the logistics of the arrest and booking processes do not count as initiation (e.g., questions about court dates or meals in jail). However, questions concerning the substance of a potential future prosecution or an alleged crime do (e.g., questions about evidence or potential sentences).

Does the Fifth Amendment privilege against compulsory self-incrimination apply against state and local governments?

Yes. The Fifth Amendment privilege against compulsory self-incrimination, including the Miranda doctrine, applies against state and local governments. The Fifth Amendment, by its terms, applies only to the federal government. However, the U.S. Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment, which applies to the states, to incorporate this privilege against state and local governments.

While investigating a robbery, a detective had a hunch that the perpetrator was a suspect whom he had encountered while investigating unrelated crimes. The detective pulled that suspect's photograph from a mugshot database and inserted it into an array containing photographs of four other people. The detective then showed the photo array to the robbery victim, asking her whether anyone in the array looked familiar. As he did so, he tapped his finger conspicuously on the face of the person he believed to be the perpetrator. The victim pointed to that person, who was thus charged with committing the robbery. Upon learning about the detective's finger tapping, the defense attorney moved to suppress the identification. Should this identification be suppressed?

Yes. The defense's motion to suppress the identification as a due-process violation should be granted. To suppress an out-of-court identification on due-process grounds, a defendant must show that the procedure producing the identification was unnecessarily suggestive and that the resulting identification was unreliable under all the circumstances. A procedure may be unnecessarily suggestive if police manipulate the process to influence the witness, without exigent circumstances to justify it. Here, the detective's conspicuous finger tapping seems meant to influence the witness, and no exigent circumstances appear to justify it, so the photo-array procedure was unnecessarily suggestive. Also, nothing about the context suggests that the identification was reliable despite the illegal procedure. Thus, the identification violates the Due Process Clause and cannot be admitted into evidence.

Before trial, a witness identified the defendant as the perpetrator. At trial, the court ruled the identification constitutionally invalid, on the grounds that the law-enforcement procedure producing it was unnecessarily suggestive, and it was unreliable. The prosecution wanted to call the same witness at the defendant's criminal trial to identify the defendant in court as the perpetrator. To support admitting the testimony, the prosecution showed that the witness had an independent basis to identify the defendant as the perpetrator, separate and apart from the illegal process itself. Is the in court identification admissible?

Yes. The in-court identification is admissible. A witness who participated in an unconstitutionally suggestive pretrial identification procedure is not automatically barred from separately identifying the defendant in court, during trial. The admissibility of the subsequent, in-court identification will be assessed under the fruit-of-the-poisonous-tree doctrine. For the in-court identification to be permitted, the prosecution must show, by clear and convincing evidence, that the witness has an independent basis to recognize the defendant as the perpetrator. "Independent" means wholly apart from the illegal pretrial procedure. Here, the witness does have a basis to identify the defendant as the perpetrator, wholly apart from the illegal procedure. Thus, the in-court identification is admissible.

May the prosecution use a statement obtained in violation of a defendant's Miranda rights to impeach the defendant's testimony at trial?

Yes. The prosecution may use a statement obtained in violation of a defendant's Miranda rights to impeach the defendant's testimony at trial. A Miranda violation bars the prosecution from using any resulting statement by the defendant as part of the prosecution's case-in-chief. However, if the defendant takes the stand, the prosecutor may introduce portions of the otherwise inadmissible statement to contradict the defendant's testimony.

A police officer took a burglary suspect into custody and brought him to the stationhouse for interrogation. The suspect, after being advised of his Miranda rights, invoked his Miranda right to counsel. The officer immediately left the interrogation room. Two hours later, a homicide detective walked past and thought the suspect matched the description of the culprit in an unsolved murder. The detective read the suspect his Miranda rights and asked to speak about the murder. The suspect, hoping to clear his name of the murder, waived his Miranda rights and agreed to speak to the detective. In the ensuing interrogation, the suspect made statements that implicated him in the murder. Were the statements made in violation of Miranda?

Yes. The statements were obtained in violation of the Miranda doctrine. The Fifth Amendment, via Miranda, guarantees a person subject to custodial interrogation the right to the assistance of counsel. If that person invokes the right to counsel, this bars all further police interrogation, for any offense, unless the suspect: (1) has the assistance of counsel, (2) unilaterally reinitiates communication with the police and knowingly and voluntarily waives the right to counsel, or (3) is released from custody for at least 14 days. Here, the suspect was subject to custodial interrogation and invoked his right to counsel. He did not unilaterally initiate communication with the detective. Rather, the detective initiated communication with the suspect. The suspect never had a lawyer, and he was never released from custody. Thus, the detective violated the suspect's Miranda rights.

To impeach a criminal defendant's testimony, may the prosecutor comment to the fact finder about the defendant's decision not to testify in an earlier criminal trial against that defendant?

Yes. To impeach a criminal defendant's testimony, the prosecutor may comment to the fact finder about the defendant's decision not to testify in an earlier criminal trial against that defendant. This is appropriate, however, only if the fact that the defendant decided not to testify in the earlier trial would tend to contradict the defendant's testimony in the current trial. This is usually the case if the defendant claims to have testified in the earlier proceeding, though in fact, he or she did not. The reason for this rule is that, though the Fifth Amendment privilege against compulsory self-incrimination permits the defendant to refrain from testifying at trial and generally bars prosecutorial comment on the decision, it does not obviate the obligation to testify truthfully upon taking the stand.