The Fifth Amendment Privilege Against Self-Incrimination & Due Process and the Requirement for Voluntariness

Question 1

2 parts of 5A we are concerned with:

Answer 1

□ Compelled in any criminal case to be a witness against himself
□ Due process of law

Question 2

Purpose of non-self-incrimination

Answer 2

® Fair play/limit power of govt
® Privacy
® Accusatorial v inquisitorial
® Protection of the innocent
	◊ 4A
® Protection from cruel dilemma
	◊ Self accusation
	◊ Perjury
	◊ Contempt
® Deters perjury concern about reliability
® Protection against government overreaching
® 1A linkage

Question 3

The 3 contours of the Privilege

Answer 3

i. Compulsion
ii. Incrimination
iii. testimony

Question 4

Can you waive your 5A rights?

Answer 4

◊ Can’t waiver 5A rights in a contract with government, but not in private context

Question 5

What right is associated with your use of the 5A?

Answer 5

-D has right to have juries instructed not to draw inferences on us of 5A privilege

Question 6

Compulsion - “No Person . . . Shall Be Compelled”

Answer 6

® Does not apply to voluntary statements

◊ Forbids prosecutor from commenting to jury on D using his 5A right

Question 7

McKune Case, with the help program in prison:
◊ Risks for McKune for filling out admission of responsibility form
◊ Prosecution for other offenses he admits to and Perjury charge possible

◊ Is it Compulsion by putting him in max security if he doesn’t participate in the program?

Answer 7

◊ No, he is not being punished for not being in the program, he is getting privilege for being in the program
◊ No extra jail time - just less privilege
◊ What about livelihood?
} No rights to livelihood in prison
-McKune does not apply to probationers who have more rights

Question 8

When is explicit waiver required?

Answer 8

Outside interrogation room

Question 9

Incrimination

Answer 9

○ This rule is focused on how the statements will be used against you
○ Has to be used in a criminal case

Question 10

Criminal Versus Civil Penalty - we look at…

Answer 10

◊ Congressional intent
◊ Whether civil penalty was so punitive in nature it would negate that
-And Mendoza Factors

Question 11

Mendoza Factors to determine whether a civil or criminal penalty

Answer 11

} Whether the sanction:
– Involves affirmative disability or restraint
– Has historically been regarded as punishment
– Comes into play only on a finding of scienter
– Promotes the traditional aims of punishment, retribution and deterrance
– Applies to behavior that’s already a crime

Question 12

Does Identifying yourself violate you 5A right against self-incrimination?

Answer 12

No

Question 13

3 Immunities of Incrimination

Answer 13

· Use
· Derivative use (goes together with use)
· Transactional

Question 14

Use Immunity to Incrimination

Answer 14

® Using testimony as a piece of evidence in future prosecution against you

Question 15

Derivative Use Immunity to Incrimination

Answer 15

-goes together with use
® X statement leads us to…
◊ Cant use this
® Can still prosecute with completely independent source

Question 16

Transactional Immunity to Incrimination

Answer 16

® Cant be prosecuted for anything talked about in your statement
○ Court said transactional immunity goes beyond scope of 5A

Question 17

Test for Testimony: “To Be a Witness Against Himself”

Answer 17

® Whether state compelled
	□ If voluntary - not compelled
® Whether its incriminating
® Whether its testimonial
	□ Has to be articulated by the person to be testimonial

Question 18

In Schmerber, Police State compelled [petitioner] to submit to an attempt to discover evidence that might used to prosecute him via a Blood Test after drunk driving - is this considered Testimonial? A.k.a, is he being compelled to bear witness against himself?

Answer 18

it did no mean that he had been compelled “to be a witness against himself.”compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.”

Question 19

Justifications for Schmerber which Upheld taking blood samples from a person where there was PC to arrest for drunk driver, even if w/o consent:

Answer 19

® Exigent circumstance
□ Loss of evidence bc evidence will disappear
® Police should get a warrant
-In custody, reduced expectation of privacy

Question 20

What are not covered/privileged under Testimony?

Answer 20

fingerprints, photographs, measurements, writing or speaking samples, and the like as not being privileged.

Question 21

The fine line between what is testimonial and what is not. Muniz case, police booking questions situation:

Answer 21

® Identifying feature basic info questions by police in booking were not testimonial, but asking the D the date of his 6th birthday was testimonial
□ Greater mental calculation of coming up with 6th bday

Question 22

Does a privilege exist in business records?

Answer 22

• No; there is no compulsion involved when records are made voluntarily, and therefore the content of such records is not privileged.
• The Fifth Amendment privilege against compelled self-incrimination applies to the act of production of the business records of a sole proprietorship, but does not apply to the content of business records.

Question 23

Due Process is concerned with…

Answer 23

Voluntariness

Question 24

Voluntariness is part of….

Answer 24

self-incrimination

Question 25

Involuntariness is related to…

Answer 25

Police Conduct

Question 26

What kind of police conduct will make a statement involuntary?

Answer 26

• Sustained pressure takes away from free choice
• Prolonged questioning (36 hours) for a confession is involuntary
• Confession through brutality violates due process clause