5th Amendment Flashcards
When is the 5th Amend Priv against Self-Incrimination
Only available for compelled testimonial or communicative evidence
5th Amendment Privilege Against Self-Incrimination - Testimonial Definition
Verbal or otherwise communicative evidence
Lineups and physical evidence is NOT testimonial
5th Amendment Privilege Against Self-Incrimination - Compelled Definition
Elicited or iduced
Evidence produced from D’s free will is not compelled (e.g. D’s diary is not compelled)
Lie detector tests, custodial interrogations, etc. are compelled and 5th Amend privilege will apply
5th Amendment Privilege Against Self-Incrimination - Companies
Does not apply to companies
A legal entity (e.g. corporation, partnership, LLC) has no 5th Amend priv against self incrim
5th Amendment Privilege Against Self-Incrimination - Exceptions (3)
Does not apply if:
1) Grant of Immunity: Govt. can grant immunity from prosecution for self-incriminating testimony
2) Incriminatrion is Not Possible: e.g. statute of limitations has run
3) Extinguished by Waiver: D waives the privilege
Miranda Rights - General
Those in custody must be informed of Miranda rights prior to interrogation; otherwise subsequent statements are inadmissible
Failure to give implicates the 5th Amend, not the 6th
Miranda Rights - Requirement
Only applies when accused is in custody and interrogated
Miranda Rights - Custody Definition
Accused reasonably believes they are not free to leave
Miranda Rights - Interrogation Definition
Statements by police likely to elicit incriminating responses
- Unsolicited statements are not protected
Note: routine questioning (e.g. during booking or a probation interview) is not considered interrogation
Miranda Rights - Public Safety Exception
Police may interrogate suspects without giving Miranda warnings if necessary for public safety (e.g., D has info about a bomb that could go off in public)
Invoking & Waiving Miranda Rights - General
An accused may terminate an interrogation at any time by invoking his right to remain silent or by requesting counsel
Invoking & Waiving Miranda Rights - Invoking Right to Silence
Police must cease all questions
- Only the accused can re-initate dialogue
- Police may resume questions after a significant period concerning unrelated crimes, but D must be re-warned of Miranda rights
Invoking & Waiving Miranda Rights - Invoking 5th Amend, Right to Counsel
Once accused requests counsel unambiguously, police must cease all questions on any topic
- Note: Different than 6th Amend right to counsel, which is offense-specific and only attaches once charges are filed
- If accused initiates communication, interrogation is allowed
Invoking & Waiving Miranda Rights - Waiving Miranda Rights (2 Requirements)
Valid waiver must be:
1) knowingly and
2) voluntarily made
Burden is on prosecution to prove this by preponderance of the evidence
Invoking & Waiving Miranda Rights - 14th Amend & Confessions
To be admissible, the 14th Amend. Due Process Clause requires that confessions be voluntary
Voluntariness is assessed based on totality of circumstances, including suspect’s age, mental/physcial condition, education, and the duration, manner, and setting of the interrogation
Double Jeopardy - General Rule
D cannot be retried for the same offense once jeopardy has attached
- Arises when D is prosecuted with one crime and tried, then charged again based on the same offense
Double Jeopardy - Same Offense
Offenses are different if convictions for one offense requires proof of an element not included in the other offense
Double Jeopardy - Lesser Included Offense
Once jeopardy attaches for the greater offense, D cannot be charged for a lesser included offense
Double Jeopardy - Same Offense Exceptions (2)
1) New evidence for greater offense becomes available
2) D can be tried for battery and subsequently tried for homicide if the victim later dies from the battery
When Does Jeopardy Attach? - Jury Trial
Attaches once jury is impanelled and sworn in
When Does Jeopardy Attach? - Bench Trial
Attaches once first witness is sworn in
When Does Jeopardy Attach? - Pleas
Attaches once court accepts a plea agreement
When doesn’t jeopardy attach?
Charges or grand jury proceedings
Double Jeopardy: Exceptions Permitting Retrial - 5 Situations Where Retrial is Allowed
1) Hung Jury
2) Mistrial Due to Manifest Necessity: D may be retried when there is a manifest necessity to abort the original trial (e.g. D is too ill to continue) or if it is discontinued at D’s request on grounds not constituting an acquittal
3) Retrial after a successful appeal by D: D can be retried unless the basis for reversal was insufficient evidence to support a guilty verdict
4) D breaches a plea bargain agreement, or
5) Separate sovereigns: D can be tried for the same crime in different states or in fed and state court
