5th AM Rights & Privileges

Question 1

Fifth Amendment privilege against self-incrimination

civil liability & corporations

Answer 1

The Fifth Amendment privilege against self-incrimination protects suspects in criminal proceedings from being compelled to provide self-incriminating evidence that is testimonial in nature—e.g., via a grand jury subpoena.

The Fifth Amendment privilege against self-incrimination does not apply to evidence that might subject a person to civil liability or to corporations.

Therefore, a custodian of corporate records or other corporate officer may not refuse to produce corporate documents under this privilege, even if the documents would incriminate the custodian personally.

Question 2

Miranda Warnings

Answer 2

Before custodial interrogation, police must inform suspects that:

1) they have the right to remain silent
2) anything they say can be used against them at trial
3) they have the right to an attorney prior to & during questioning
4) if they cannot afford an attorney, the state will appoint one

Police must protect a suspect’s Fifth Amendment privilege against self-incrimination by informing the suspect of his/her Miranda rights(e.g., the right to an attorney) prior to a custodial interrogation.

The suspect may then choose to specifically and unambiguously invoke those rights.

Alternatively, the suspect who understand his/her Miranda rights may waive those rights by voluntarily speaking to the police

Question 3

Miranda Warnings

resuming interrogation after long break

Answer 3

If the interrogation of a suspect who has waived his/her Miranda rights is stopped for a long duration, police should re-Mirandize the suspect prior to resuming the interrogation.

Question 4

When does the Fifth Amendment right to counsel apply?

Answer 4

The Fifth Amendmentright to counsel applies when a suspect is subjected to a custodial interrogation prior to the commencement of judicial proceedings.

• However, this right is not automatic.

A suspect must invoke this right by making a specific, unambiguous statement requesting counsel.

If the suspect does not do so and answers questions after being Mirandized, then this right is waived.

Question 5

Fifth Amendment Double Jeopardy Clause

Does the use of a Defendant’s prior convictions to enhance the sentence imposed for a current conviction violate the double jeopardy clause?

Answer 5

The Fifth Amendment double jeopardy clause prohibits multiple punishments for the same offense.

• However, in Witte v. United States, the U.S. Supreme Court held that the use of a defendant’s prior convictions to enhance the sentence imposed for a current conviction does not violate the double jeopardy clause.

Question 6

Does a “three-strikes” law violate the prohibition against double jeopardy or cruel and unusual punishment?

Answer 6

NO.

Applying a “three-strikes” law to impose lengthy imprisonment upon the commission of a third felony does not violate the prohibition against double jeopardy or cruel and unusual punishment.

Question 7

No Double Jeopardy Protections

Answer 7

retrial permitted for same offense

1. No attachment

• Jury was not impaneled & sworn or
• Judge did not begin to hear evidence

2. Mistrial

• Requested by defendant or
• Based on manifest necessity

3. Appeal

• Appellate court discovered trial error & remanded case

4. New facts

• Facts necessary for greater offense did not exist at first trial

5. Guilty plea to lesser offense

• Greater offense was charged at time of plea to lesser offense

Question 8

Is there a bar to a second prosecution when a mistrial is declared?

Answer 8

The Fifth Amendment double jeopardy clause bars a second prosecution for the same offense once jeopardy has attached—e.g., when the jury is impaneled and sworn in.

However, there is no bar to a second prosecution when a mistrial is declared:

1) at the defendant’s request or with the defendant’s consent OR
2) due to manifest necessity—i.e., a situation rendering it impossible to continue the trial or reach a fair outcome.

One example of manifest necessity is a hung jury—i.e., a jury that cannot reach a unanimous verdict after deliberation.

Question 9

When must police inform a suspect of his/her Miranda rights?

Answer 9

A defendant’s motion to suppress an incriminating statement should be granted when the statement was obtained in violation of the Fifth Amendment privilege against self-incrimination.

To protect this privilege, police must inform a suspect of his/her Miranda rights when the suspect is:

1) in custody – placed under formal arrest or restrained in his/her freedom of movement to such a degree that a reasonable person would not feel free to terminate the encounter and
2) subjected to interrogation – questions, words, or actions directed at a suspect that police know or should know are reasonably likely to elicit an incriminating response.

If the suspect invokes the right to counsel under Miranda, then all interrogation must cease.*

However, a subsequent volunteered statement—i.e., a spontaneous or unprompted statement not elicited by interrogation—is not protected by Miranda and is therefore admissible.

*Interrogation can resume once (1) the suspect’s attorney is present, (2) the suspect voluntarily reinitiates the interrogation, or (3) 14 days have passed since the suspect was released from police custody or was no longer subject to coercive pressures associated with police custody.

Question 10

Fifth Amendment & the Double Jeopardy Clause

Answer 10

Fifth Amendment

i) Self-incrimination – secures right to refuse to testify against oneself
ii) Grand jury – requires grand jury indictment for felony offense charged in federal court
iii) Double jeopardy – bars multiple prosecutions for same offense
iv) Due process – protects against unfair deprivation of life, liberty, or property
v) Takings – prohibits taking private property for public use without just compensation

The Fifth Amendment double jeopardy clause provides the following protections:

i) Protection against a second prosecution for the same offense after acquittal
ii) Protection against a second prosecution for the same offense after conviction
iii) Protection against a second prosecution after a mistrial is declared in the absence of manifest necessity
iv) Protection against multiple punishments for the same offense

***However, this clause does not preclude a criminal punishment and civil penalty* for the same conduct.

Additionally, double-jeopardy protections do not apply to administrative proceedings—e.g., a disciplinary hearing stemming from criminal conduct.

Nor do they apply to parole, probation, or bond-revocation hearings related to a criminal charge or punishment.

Question 11

Double jeopardy protections do not apply to:

Answer 11

1) Does not preclude a criminal punishment and civil penalty* for the same conduct.
* *However, a civil penalty may be treated as a criminal punishment if the penalty amount is grossly disproportionate to the government loss and it serves only as a deterrent or for retribution.
2) Does not apply to administrative proceedings—e.g., a disciplinary hearing stemming from criminal conduct (accountant revoked of license for conducted fraud)
3) Nor do they apply to parole, probation, or bond-revocation hearings related to a criminal charge or punishment.

Question 12

Are Miranda warnings required when the suspect does not know that the interrogator is a police officer?

Answer 12

NO.

In Illinois v. Perkins, the U.S. Supreme Court held that Miranda warnings are not required when a suspect does not know that the interrogator is a police officer (i.e., when the officer is undercover).

Question 13

When should an indictment be quashed?

Answer 13

An indictment should be quashed (i.e., dismissed) if it violates the Fifth Amendment double jeopardy clause.

Question 14

When does double jeopardy protection attach?

Answer 14

Double jeopardy protects criminal defendants from undue harassment and expense by forbidding multiple punishments and a second prosecution for the same offense.

This protection attaches once the defendant is in jeopardy of a conviction—i.e., when:

1) the jury is impaneled and sworn (jury trial) OR
2) the first witness is sworn in (bench trial).

But if a criminal charge is dismissed before the defendant is put on trial before a trier of fact (judge or jury), then jeopardy does not attach and the defendant can later be prosecuted for the same offense.

Question 15

Can statements that are taken without the issuance of Miranda warnings be used directly against a criminal defendant in deciding ultimate issues of guilt or innocence?

Answer 15

NO.

To comply with the Fifth Amendment privilege against self-incrimination, police must give a suspect Miranda warnings before a custodial interrogation.

Statements taken without the issuance of Miranda warnings cannot be used directly against a criminal defendant in deciding ultimate issues of guilt or innocence.

• However, such statements can be used for the limited purpose of impeaching a criminal defendant’s inconsistent testimony if the statements were voluntary and trustworthy.*
  
  • *This ensures that the government’s use of unlawfully obtained evidence remains limited, while also preventing the defendant from using the government’s mistake as a shield against untruthful testimony.

Question 16

When a conviction of a lesser included offense stems from a guilty plea, the double jeopardy clause bars a subsequent prosecution for the greater offense unless:

Answer 16

When a conviction of a lesser included offense stems from a guilty plea, the double jeopardy clause bars a subsequent prosecution for the greater offense unless:

1) an event necessary to establish the greater offense occurred after the plea was entered OR
2) the greater offense was charged before the plea was entered.

Question 17

Exclusionary Rule

exception for “attenuated statements”

Answer 17

Under the exclusionary rule, an unlawful arrest generally requires suppression of evidence obtained as a result of that arrest.

• However, an incriminating statement made after an unlawful arrest is admissible if the connection between the arrest and the statement is so attenuated that the statement is considered voluntary.

To make this determination, the court will examine the *totality of the circumstances*, including:

1) the length of time between the arrest and the statement
2) the flagrancy of the police misconduct AND
3) the existence of intervening events between the arrest and the statement.

Miranda warnings are not, by themselves, a sufficient intervening event to break the connection between an illegal arrest and a subsequent statement.

• ***And a statement that is too closely connected to an unlawful arrest should be suppressed***

Question 18

Exceptions to the Exclusionary Rule

Answer 18

1. Good faith
   * Reasonable belief that actions leading to discovery of evidence were lawful

EXAMPLES:

• Executing later-invalidated warrant
• Following law subsequently deemed unconstitutional

2. Independent Source
   * Evidence later obtained independent of initial illegality

EXAMPLE:

• Police return to site of illegal search with valid warrant based on other information.
  3. Inevitable Discovery
• Evidence would have been discovered through other untainted means

EXAMPLE:

• Incriminating evidence would have been discovered during search despite Miranda violation.
  4. Attenuation:
• Break in causal connection between illegal poliice conduct & discovery of evidence

EXAMPLES:

• Suspect released after invalid arrest later confesses
• Substantial passage of time between illegal conduct & discovery of evidence

Question 19

When is an incriminating statement taken after an unlawful arrest admissible?

Answer 19

An incriminating statement taken after an unlawful arrest is admissible if the court determines that the connection between the arrest and the statement is so attenuated that the statement is considered voluntary.

Question 20

Are volunteered statements considered to be the product of interrogation?

Answer 20

NO.

An interrogation occurs when police direct questions, words, or actions at a suspect that they know or should know are reasonably likely to elicit an incriminating response.

Volunteered statements—i.e., spontaneous or unprompted remarks—are NOT the product of interrogation.

• As a result, such statements are admissible even if the suspect had not been Mirandized before making them. And any physical evidence derived from volunteered statements is also admissible.*
  
  • *Derivative physical evidence obtained as a result of a confession that is inadmissible due to the police’s failure to give Miranda warnings is also admissible, so long as that confession was not coerced.

Question 21

Custodial interrogation

Prison

Answer 21

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.

Example:

Howes v. Fields, 565 U.S. 499 (2012) (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 terminate the interrogation and go back to his cell whenever he wanted).

Question 22

Places that can potentially be “custodial”

Answer 22

1. Police Station
2. Crime Scene
3. Traffic Stop
4. Prison

Question 23

What consitutes “interrogation”?

Answer 23

Interrogation refers not only to express questioning, but also to any words or actions that the police know or should know are reasonably likely to elicit an incriminating response.

Question 24

What standard is used to determine whether a statement was involuntary or voluntary?

Answer 24

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.

Question 25

Can interrogators use trickery or false promises to elicit a confession?

What about deceit or fraud?

Answer 25

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.

Question 26

What factors are used in determing the coercive nature of the confession?

Can a defendant’s mental condition alone violate the voluntariness standard?

Answer 26

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.

Question 27

Is a voluntary statement made by the suspect after invoking his right to counsel admissible?

Answer 27

If the suspect voluntarily initiates communication with the police after invoking his right to counsel, a statement made by the suspect, such as a statement that the suspect spontaneously blurts out, can be admissible because it is not made in response to interrogation.

Question 28

How many days until police can re-open interrogation of a suspect who has asserted his Fifth Amendment right to counsel?

Answer 28

Police may re-open interrogation of a suspect who has asserted his Fifth Amendment right to counsel if there has been a 14-day or more break in custody (such as the release back into the general prison population of a suspect who has been incarcerated for another crime).

• In such circumstances, the officers must give fresh Miranda warnings and get a valid waiver before beginning questioning.