THE FIFTH AMENDMENT WK 5
Who may assert the privilege
"a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances," and further "the truthful responses of an innocent witness" where the responses of such a witness might provide the government with "incriminating evidence from the speaker's own mouth,".
What is a "custodial interrogation"
"questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."
Berguis v. Thompkins
- 1. A criminal suspect's silence during an interrogation doesn't invoke his right to remain silent. 2. A criminal suspect waives his right to remain silent when he knowingly and voluntarily makes a statement to the police. 3. The police are not required to obtain a waiver of a criminal suspect's Miranda rights before interrogating him
Petit jury
- 12 or fewer members - determine guilt and are triers of fact
Baltimore City Dep't of Social Services v. Bouknight
- A parent, who is the custodian of a child pursuant to a court order, may not invoke the 5th Am. privilege against self-incrimination to resist an order of the juvenile court to produce the child
Limiting the Privilege
- Baltimore City Dep't of Social Services v. Bouknight
Imminent domain clause
- Gov't can take private property for public use - Clause protects because makes gov't pay you; "just compensation"
"Plead the fifth" means 3 things:
- Gov't cannot compel you to speak - Only thing you can be compelled to speak is your name - Spouse is protected
The Miranda Revolution
- Massiah v. US - Miranda v. Arizona
The Scope of Miranda: "Interrogation"
- Rhode Island v. Innis - Illinois v. Perkins
How many protections are in the 5th amendment?
5
If Miranda warning given, no waiver attained, and there was an interrogation are statements admissible
No the statements are not admissible UNLESS (1) there was a public safety exception (Quarles) or (2) booking questions exception (Muniz)
Do the warnings have to be given perfectly every time
No. Powell, The Supreme Court held this satisfied the requirements of Miranda.
what is the meaning of the protection "JUST COMPENSATION"?
People are guaranteed that private property (such as a house) may not be taken without fair payment.
What is the main purpose of the 5th amendment (what it means)?
RIGHTS IN CRIMINAL TRIALS
What requirments do officers have under the 5th
The only requirements is to notify him of his rights under Miranda (including right to counsel), and ensure that the respondent voluntarily and knowingly waived those rights. The officers don't have to tell the defendant his lawyer called.
What does scrupulously honor mean
The police "scrupulously honor" the invocation to remain silent for a period of time and then re-initiate contact with the suspect-defendant. Under Mosley this means the police must: (1) Interrogation immediately ceased; (2) No coaxing; (3) Time lapse; (4) No pressure; (5) Waiver.
How long does the 5th amend right to counsel last after he is release
The police must then wait more than 14 days to question further
Is age of a minor a consideration
The youth's age must be considered to determine what a reasonable child would feel rather that what a reasonable adult would feel based on the circumstances. The Court remanded the case directing that the juvenile age of the suspect is a factor the court must consider.
Is a confession by a defendant that was in custody but no there was interrogation admissible
Yes
If Miranda warning given and defendant does not explicitly, unambiguously, and unequivocally invoke right to counsel, police question defendant, and the defendant waives both right to remain silent and attorney, are the statements that follow admissible
Yes, Moran v. Burbine, he did not specifically ask for counsel.
When is someone in "Custody"
when freedom is significantly deprived to be equivalent to an arrest.
When is a person in custody for purposes of Miranda
"A suspect is . . . 'in custody' for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." Miranda. This is also explained by saying that "Miranda warnings must be administered prior to 'custodial interrogation.' IT IS A TOTALITY TEST OF A REASONABLE PERSON IN THOSE SHOES.
What must happen for a statement to be admissible after the Miranda rights are given
1. Miranda warning must have been given and waived (both as to silence and attorney)
Due process (2 things)
1. Procedural 2. Substantive Law stand, or doesn't stand?
If Miranda warning not given, there was an interrogation, followed by confession, followed by Miranda warning, followed by waiver, followed by interrogation, followed by confession is the confession admissible
Admissible if first failure to give Miranda not intentional to avoid Miranda. Elstad, and inadmissible if first failure to give Miranda intentional to avoid Miranda. (Seibert)
Does an officer pulling someone over typically equate to a custody
Although a motorist is technically seized during a traffic stop, Miranda warnings "are not required where the motorist is not subjected to the functional equivalent of a formal arrest."
What is "Interrogation"
is the use of words or actions to elicit an incriminating response from an average person.
Does giving Miranda rights advisory forigve or overcome a Fourth Amendment unlawful seizure
nope
Does Miranda apply to physical evidence
nope only to confessions
Does Miranda Apply if you don't know they are police
nope, you suck, you should have known better
6 factors to consider in totality when looking at first prong of Thompson
(1) whether police told the suspect "that the questioning was voluntary," the suspect could leave or ask the officers to do so, "or that the suspect was not considered under arrest"; (2) whether the suspect's movement was restrained during the questioning; (3) "whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions"; (4) whether police used "strong arm tactics or deceptive stratagems" during questioning; (5) "whether the atmosphere of the questioning was police dominated"; and (6) whether the suspect was arrested at the end of the questioning.
Miranda v. Arizona
- A defendant's statement may not be offered into evidence if it results from custodial interrogation of the defendant by the gov't unless warnings under the 5th Am. have been given to the defendant
Moran v. Burbine
- A pre-arraignment confession preceded by an otherwise valid waiver is not tainted by unrelated police misconduct
Massiah v. US
- After the accused has been indicted, the 6th Am. forbids the use at trial of incriminating statements deliberately elicited from the accused by gov't agents in the absence of counsel
The Right to Counsel Reconsidered
- Brewer v. Williams
Double jeopardy clause
- Cannot have a retrial after an acquittal, conviction, certain mistrials, cannot have multiple punishments. - Exception: new evidence surfaces - Mistrial = only guilty cases
5th Am. Privilege Against Self-Incrimination and Its Justification
- Kastigar v. US
Illinois v. Perkins
- Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement
The Consequences of a Miranda Violation
- Missouri v. Seibert - US v. Patane
The Scope of Miranda: "Waivers"
- Moran v. Burbine - Berguis v. Thompkins
Brewer v. Williams
- Once adversary proceedings have commenced against an individual, he has a right to legal rep when the gov't interrogates him
Missouri v. Seibert
- The police technique of interrogating in successive, unwarned and warned phases violates the requirements of Miranda
Rhode Island v. Innis
- There is no interrogation where comments by one officer to another officer about the dangerousness of the crime elicit a response from the suspect
US v. Patane
- The Self-Incrimination Clause is not violated by the admission into evidence of the physical fruit of a voluntary statement
Kastigar v. US
-Testimony may be compelled if immunity from prosecution is granted; no 5th Am. violation occurs
How does a suspect invoke his right to counsel under the 5th
A suspect must make an unequivocal request for a lawyer in order to effectively invoke his right to counsel.
what is the meaning of the protection "DUE PROCESS"?
A fundamental, constitutional guarantee that all legal proceedings will be fair and life, liberty, and pursuit of happiness will not be violated without the full protection of the law.
what is the meaning of the protection "Indictment by a Grand Jury"?
A person must be presented with an indictment (formal written statement listing the charges against a person) by a grand jury (people who determine whether enough evidence exists to file criminal charges). Members of the United States armed forces are charged under military law and the 5th Amendment may not apply.
If an officer knows you will be arrested, but hasn't articulated it, are the statements admissible
A policeman's unarticulated plan has no bearing on the question whether a suspect was "in custody" at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation. Since defendant was not taken into custody for the purposes of Miranda until he was formally arrested, his statements made prior to that point were admissible against him.
what is the meaning of the protection "SELF-INCRIMINATION"?
Any person being questioned by agents of law enforcement may not be forced to provide evidence of their guilt. No person accused of a crime may be forced to testify in a court of law as to their guilt, or involvement in potentially illegal activity.
When does the Sixth Amendment right to counsel attach
At the initiation of formal charges, which in fed court that is the rule 5.
What two tests govern whether or not someone was in custody for Miranda purposes
Beheler : "whether there [was] a formal "whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Further flushed out in Thompson: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.
Eminent domain- the government's right to take private property—usually land—for public use.
Finally, the Fifth Amendment protects property rights. It limits the government's power of eminent domain. For example, if your home lies in the path of a proposed highway, it may be legally taken and destroyed. The Fifth Amendment limits this power. It requires the government to pay a fair price for the property.
What are the legal protections of the 5th amendment?
INDICTMENT BY A GRAND JURY, DOUBLE JEOPARDY, SELF-INCRIMINATION, DUE PROCESS, and JUST COMPENSATION
Does a parent bringing a minor in for questioning mean the minor is in custody
No he is not in custody even if he is taken away alone and questioned.
Why is Miranda important
If the police can extract a confession from a defendant at the outset of the case with no effort to protect the right not be to a witness against yourself, then this provision would have little meaning.
Do the Miranda rights have to be explicitly waived
No in Butler, A defendant's waiver of his Miranda rights does not have to be explicit and a waiver may be inferred from the circumstances. The defendant's silence coupled with an understanding of his rights and a course of conduct indicating waiver is all that is required.
What is "incriminating"
It has been broadly interpreted by the Court to include any answer which might furnish a link in the chain of evidence needed to prosecute.
How was "interrogation" defined under Miranda
It is express questioning or its functional equivalent. This means not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
The Miranda Rule (given to us)
Miranda requires that a warning as to the availability of the privilege against self-incrimination and to the assistance of counsel be issued prior to questioning whenever a suspect is (1) interrogated (2) while in custody. "Custodial interrogation" is required. Miranda warnings are required when an individual has been subjected to custodial interrogation. See Miranda v. Arizona, 384 U.S. 436 (1966).
5h Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The 5th amendment (given to us)
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
If Miranda warning given and defendant does specifically invoke right to counsel explicitly, unambiguously and unequivocally, police question defendant and obtain confession, the the statements then admissible
No, Once the right is invoked, the police must immediately cease questioning. Once a defendant invokes his Fifth Amendment right to counsel the police must stop all custodial interrogation.
Are Involuntary confessions admissible
No, not admissible as it violates due process clause 5th & 14th Amendments, they must be freely made. Jackson v. Denno, however, unwarned (no Miranda) but voluntary confessions to be used during cross-examination to impeach the trial testimony of a defendant.
Can corporations used the 5th
No, the right against self-incrimination is a personal privilege that does not extend to a corporation or its records.
Is failure to give Miranda a violation of the constitution
No, the violation of a prophylactic rule is not a violation of the constitution. Admitting a confession into evidence at trial absent the Miranda warnings is a violation of the Fifth Amendment because by the prophylactic rule of Miranda absent those warnings and a waiver it is presumed that the confession was the result of coercion and therefore is compelling the defendant to be a witness against themselves.
If Miranda warning given and defendant does explicitly, unambiguously, and unequivocally invoke right to remain silent, police question defendant resulting in confession are the statements admissible
No, they are inadmissible as all questioning must cease. Miranda.
Can the defendant's silence after being given the Miranda warnings be used against the defendant
Nope
After 5th to counsel is invoked, when is further interrogation permitted
Only if counsel is present or, if defendant invokes right to counsel and then re-initiates questioning, the reiniciation is a wavier of that 5th right to counsel
Grand jury
Only in federal cases - Larger (28-35 members) - Determine "Do we have a case?" - Indictment = formal accusation
Officer Responsibility
Peace officers have a responsibility to protect the Fifth Amendment rights of citizens as they pertain to double jeopardy, being a witness against ones self, or depriving a person of life, liberty of property without due process.
Meaning for Peace Officers
Peace officers need to understand the relationship between a person's right against self-incrimination and the Miranda decision.The Miranda right to counsel was established by the United States Supreme Court in 1966 protecting a subject's Fifth Amendment right against self-incrimination.
what is the meaning of the protection "DOUBLE JEOPARDY"?
People are protected from being tried more than once for the same offense. Such a legal protection denies legal officials the right to seek a guilty verdict in criminal court of filing charges again and again in the hope of obtaining a guilty verdict
What is the public safety exception
Police officers faced with an immediate public safety concern who have a person in custody may interrogate the person without giving a Miranda warning. For example, suppose the suspect was seen to have a firearm just prior to the time of his arrest, but did not have the firearm upon his arrest. This test to be applied is an objective test of the facts, not the officer's subjective intent in asking the question.
Fifth Amendment
Provides that no person shall be compelled to serve as a witness against himself, or be subject to trial for the same offense twice, or be deprived of life, liberty, or property w/o due process of law
5th amendment definition
Right to a trial with grand jury in capital or otherwise infamous crime except, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; protects from double jeopardy; can't self incriminate, granted due process of law; private property made public = get paid for it.
Self-incrimination- giving evidence that could lead to one being found guilty of a crime
The Fifth Amendment also protects an accused person's right to remain silent. Throughout history, governments have sometimes forced people to confess to crimes they did not really commit. To prevent this, the Fifth Amendment states that people cannot be made to testify against themselves.
Guaranteed Rights
The Fifth Amendment of the U.S. Constitution provides that individuals cannot be compelled to be a witness against themselves in a criminal case, may not be tried for the same offense twice, or be deprived of life, liberty, or property without due process of law.
Double Jeopardy- Putting someone on trial for a crime of which he or she was previously found innocent
The Fifth Amendment prevents putting people on trial more than once for the same crime. The Fifth Amendment blocks the government from that action.
Indictment- a document issued by a body called a grand jury that formally charges someone with a crime.
The Fifth Amendment protects several rights of an accused person. First, it states that no one can be tried for a serious crime without an indictment. Members of the grand jury first review all the evidence against an accused person before deciding to indict him or her. Someone who is indicted is not necessarily guilty. This document simply states the grand jury's belief that he or she may have carried out a crime. A trial will decide whether he or she did.
Due Process- following set legal procedures.
The Fifth Amendment states that no one may be denied life, liberty, or property "without due process of law." It includes the idea that the laws to be followed must be reasonable.
Can the police honor invocation and then later obtain a confession by interrogation the police initiate and with full waiver
The statements can be admissible only if if certain factors are met: (1) was defendants right to cut off questioning was "scrupulously honored". (2) An invocation of the right to remain silent does not mean that questioning can never be resumed (Mosley). (3) Invocation of right to remain silent does not mean that a defendant cannot later waive this right (Butler).
Is a confession by a defendant that was not in custody admissiable
Yes, Beheler
If Miranda warning given and defendant does not explicitly, unambiguously, and unequivocally invoke right to remain silent, police question defendant, defendant waives both right to remain silent and attorney, are the statements admissible
Yes, Berghuis v. Thompkins the Court held that the mere act of remaining silent is not an invocation of his right to remain silent.
Can an attorney or other person invoke your rights to counsel under the Fifth Amendment right to counsel
Yes, Moran v. Burbine, he did not specifically ask for counsel.
Can 5th be used outside of a criminal case
Yes, if the testimony is being compelled in any type of proceeding, Congressional Hearings, civil proceedings, administrative proceeding, and it may be used in a future prosecution of the person asserting the privilege, then the privilege is properly asserted. As long as the person reasonably fears that the testimony may be used in a future prosecution they may assert the privilege even while asserting innocence.
Can an admission to a mandatory PO visit be inadmissible
Yes, in Murphy, the Supreme Court held that the obligation to appear before the probation officer was not in itself enough to render his confession involuntary or in custody, but when a witness is confronted with a question that may elicit incriminating evidence, the witness must assert the privilege to remain silent. The Fifth Amendment is not self-executing.
After Miranda is given and not waived, can the police interrogate regarding a separate crime not other than the one of the original Miranda
Yes, once "scrupulously honored" and "a period of time has passed" before questioning begins again, there is re-advising of the detainee of her Miranda rights, and limit the ensuing interrogation to questions regarding a separate crime not the subject of the first questioning session confession to other crime is admissible. (House)