5A

Question 1

Confessions (14th A)

Answer 1

To be admissible, confessions must be made voluntarily without police coercion, in light of the totality of circumstances.

Question 2

INCRIMINATING STATEMENTS

Answer 2

• The 5th A, which is applicable to the states via the DP Clause of the 14th A, guarantees freedom against compelled self-incrimination.
• To protect this right, the police must inform their detainees of their Miranda warnings prior to any custodial interrogation.

Question 3

Incriminating statements - CUSTODY

Answer 3

(Not an issue if detainee is arrested)

A person is in custody when he reasonably believes that he’s not free to leave.

Question 4

Incriminating statements - INTERROGATION

Answer 4

Interrogation includes any words or conduct by the police that they should know is reasonably likely to elicit an incriminating response.

• Cannot Re-Mirandize unless sufficient break from in custody;
• Suspect must be aware of interrogation (e.g. undercover ok); and
• not needed for spontaneous statements.

Question 5

Incriminating statements - WAIVER

Answer 5

Must be voluntarily and knowingly made.

Mere silence insufficient.

Question 6

Right to counsel

Answer 6

If accused unambiguously requests that he wishes to speak to counsel, the police must cease all questioning until a lawyer is present.

Question 7

Right to counsel - WAIVER

Answer 7

A waiver of the 5th AM right to counsel, does not also waive the 6th AM right to counsel (separate layer triggered only after D has been formally charged or at all critical stages).

Question 8

SELF-INCRIMINATION

Answer 8

Protects D from compulsion to give testimony or communicative evidence that could expose him to criminal liability.

Must be asserted first time asked, or else waived.

Question 9

Double jeopardy

Answer 9

The Fifth AM protects an individual from being tried for the same offense twice after jeopardy attaches. Jeopardy attaches when jury sworn in for a jury trial, or when first witness sworn in for bench trial.